Colorado DDD Proposes Two Step Plan: Change State Rules to Limit DD Eligibility, then Conduct Broad Public Discussion Regarding the DD Definition of the Future

Readers: I usually try to focus my posts on issues that are of interest nationally, rather than only in my home state of Colorado. This posting, however, focuses on an important  Colorado issue related to how individuals are determined eligible for services from Colorado’s developmental disabilities service delivery system. I want to get the word out that an effort is being made to narrow Colorado’s definition of developmental disability.

 

The Colorado Division for Developmental Disabilities (DDD) is proposing to: (1) immediately change the definition of developmental disability in state rules, and (2) after the rule change engage the system in a thorough deliberative process to discuss what our state DD definition should be. This proposal is a response to a declaratory order issued by the Colorado Department of Human Services (CDHS). The CDHS order declared that in determining eligibility for DD services, community centered boards (CCBs)  may not limit eligibility to only persons with mental retardation. The order further declares that when determining eligibility, state law at CRS 27-10.5-102(11)(a) requires CCBs to consider an individual’s adaptive behavior.

 

  This clarified that under Colorado law an individual who has adaptive behavior similar to a person with mental retardation has a developmental disability. In order to determine whether adaptive behavior is similar to a person with mental retardation, state rules look at whether that behavior is the direct result of, or significantly influenced by, the person’s substantial cognitive deficits.  The declaratory order concluded that a substantial cognitive deficit included individuals with impairments resulting in IQ measurements as high as 85. But, according to DDD, this decision broadened the DD definition “beyond how it has generally been implemented.”

 

Thus, DDD is proposing a new definition in state rules that restricts DD eligibility to individuals with IQ measurements up to 75 or perhaps, given the standard error of measurement, 80. The stated reason for the proposed change is to provide immediate clarity to the system. Note that, legally, the DD definition determined in the declaratory order, is in effect until the rules are changed. Community centered boards must determine eligibility based on that order and may not ignore it because there is a different definition being proposed.

 

The rules implementing the state DD statute were originally adopted by the State Board of Human Services. The rules can be changed by that Board, but they cannot be changed without an opportunity for public hearing and comment.  That process is underway and DDD is proposing a two step process. First, quickly conduct the public hearing and comment period and effectuate the rule change by October 1, 2008. Second, begin a lengthier discussion that includes all of the various stakeholders regarding what the definition should be.

 

 The Legal Center opposes this process. We believe the definition established in the declaratory order is clear and should remain in effect until there can be a thorough discussion of the other definitions and their impact on families and people with disabilities. There is no need to urgently change the rules for the sake of clarification. We believe that if there is a need to change the definition of developmental disability, the system wide discussion of possible definitions and the ramifications of each, should be discussed before the change: not after. Otherwise people with developmental disabilities face the possibility of three different definitions of DD eligibility. One, the definition, now in effect per the declaratory order. Two, the definition in the proposed quick rule change. Individuals found eligible under the broader declaratory order definition will soon be found ineligible under the narrower proposed rule change definition. Third, if the broad public discussion results in another definition change, some individuals may have their eligibility determined a third time.

 

While DDD is trying to change the rule as quickly as possible, there are timelines and a process to follow. The first reading of the proposed rule change at the Human Services Board will be July 11, 2008 and the second reading August 1. The Human Services Board will take public comment orally or written at both readings. Persons concerned with this rule change should make sure their concerns are heard. The proposed rule and the memorandum from DDD explaining the rationale for the change can be found on the DDD website at http://www.cdhs.state.co.us/ddd/WhatsNew.htm just scroll down to “Memo to System Regarding Draft Rule Revision of the Definition of Developmental Disability” and “Proposed Change to the Definition of Developmental Disability”.

This proposed rule change will be heard again by the Human Services Board on Friday August 1, 2008 at 10:00 am at 1575 Sherman Street, Denver, CO in conference room 4A/B. The public is welcome to testify.

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