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Decision to deny services offered by the Delaware Division of Developmental Disabilities

In re: Redacted

Lexie McFassel, Esq., Disabilities Law Program
Lisa Furber, Paralegal, Disabilities Law Program
Redacted Redacted, Claimant
Redacted Redacted, Claimant's Father
Crystal Sheats, DVR, Vocational Rehabilitation Counselor
Russ Widder, Center for Human Development
Dr. Mark Reber, Director of Psychiatry, Woods Services
Ann Woolfolk, Esq, Delaware Deputy Attorney General
Joseph B. Keyes, Ph.D., Director of Professional Services, Division of Developmental Disabilities Services


Redacted Redacted (Claimant), by and through legal counsel, is appealing the decision to deny his application for services offered by the Delaware Division of Developmental Disabilities Services (DDDS).

DDDS contends that they properly denied the Claimant's application for benefits because they have properly determined that he does not meet the eligibility criteria for DDDS services.


On July 2, 2004, Claimant, through counsel, requested a fair hearing to address the May 28, 2004 denial of services by DDDS. By letter dated July 20, 2004, Hearing Officer Roger Waters wrote to counsel regarding the request for a fair hearing, specifically addressing the question of jurisdiction by the Division of Social Services (DDS) to hear the matter, and also raising an issue of timeliness of the request for a hearing. By return letter of July 28, counsel for Claimant addressed the issues of timeliness and jurisdiction.

Counsel for Claimant was notified by certified letter dated August 4, 2004, that a fair hearing would be held on September 9, 2004. Due to the unavailability of a witness, the Claimant requested and received a continuance from Hearing Officer Waters. In attempting to reschedule the case with counsel for both parties, it was determined, because of either the unavailability of counsel or witnesses, that the hearing would be rescheduled to November 8, 2004.

Because Hearing Officer Waters went on extended sick leave before the date of the hearing, the Hearing Officer below was assigned the case.

A hearing was held on November 8, 2004 in New Castle, Delaware. This is the decision resulting from that hearing.


While the hearing process continued and a hearing was held on November 8, 2004, I have concluded that DSS lacks jurisdiction in this case.

In reviewing the Memorandum of Understanding (MOU), DSS only has jurisdiction for hearings for individuals who are both Medicaid eligible and served by the DDDS. In the Redacted matter, there is no testimony or other evidence that Mr. Redacted is Medicaid eligible. In fact, under DSSM DSSM §;20700.1, if not already Medicaid eligible as an SSI recipient, DDDS would submit an application to the appropriate Long Term Care Unit for a financial eligibility determination, but only after the DSS Medical Review Team (MRT) has approved the individual from a Medical eligibility standpoint. Here, Mr. Redacted's case never made it to the MRT because DDDS denied his initial medical eligibility and he never became a client of DDDS. Since jurisdiction for a hearing by DSS is predicated on both a Medicaid eligible individual and one who is served by DDDS, and Mr. Redacted does not meet either of these criteria, DSS does not have jurisdiction to provide the relief requested.

The MOU sets forth that DDDS has accepted the responsibility of the process of the Waiver program and non-waiver services, including the process of one becoming a client. In that document, DDDS has agreed to comply with the rules and procedures governing fair hearings under DSSM §5000. From there, however, counsel for Claimant argues that because DDDS has agreed to comply with the rules and procedures governing fair hearings and agreed to be responsible for the process, that every issue regarding the process and every stage of the process is subject to DSS conducting a fair hearing. It does not follow, as counsel has indicated, that DSS has jurisdiction to hear disputes arising as a result of an eligibility determination, especially in light of the limiting language of the MOU, which specifically sets forth for which parties DSS will conduct hearings. The specific language of the MOU clearly contemplates that DSS is only responsible for conducting hearings for those individuals served by DDDS, not those applicants denied services. According to the MOU, DSS only has jurisdiction to hear cases involving individuals who are Medicaid eligible and served by DDDS (that means that they are already clients whom have had their services reduced or terminated). This becomes even more clear when read in tandem with DSSM §20700, which sets forth that Medicaid eligibility under any HCBS waiver is not established until services under the HCBS waiver begins and, DSSM §20700.1, which sets forth a specific process for assisting an individual in applying for Medicaid eligibility after they have become a client.

Moreover, in Claimant's Counsel's letter of July 28, 2004, I have determined that neither the language of the MOU nor the DSSM §5000 supports the position that a denial of services through DDDS constitutes an automatic denial of the waiver available pursuant to DSSM §20700.1 and therefore triggers DSS jurisdiction to perform the hearing. In the first instance, the Claimant is not denied the opportunity to apply for the waiver. Rather the effect of the DDDS denial would mean that if he were to apply for the waiver through DSS, and was not a client of DDDS, he would most likely be denied. Second, as DSS did not take any action or issue a denial notice as to the Claimant, jurisdiction would not attach from a DSS point of view. Finally, as stated above, based on the MOU, DSS has jurisdiction for hearings involving only those individuals being served by DDDS and not those applying for benefits.

Finally, there is a question as to whether the MOU has even been effectuated in the first instance. The document itself has three (3) signature lines: one for the Director of DDDS, one for the director of DSS and one for the Secretary of the Department of Health and Social Services. While I have seen a document that has both Directors signatures and bearing the date of February 12, 2004 (that document was not presented at the hearing), I have not yet seen a copy of the document with the Secretary's signature and date. In addition, the document in the record only bears one dated signature, that of the Director of DSS. By the documents own words, it is not effective until the date of the final signature. Accordingly, by its own terms, the document that is in the record for the hearing is not in effect. However, for purposes of the above analysis I have assumed that there is a valid MOU between DSS and DDDS.


For these reasons, a hearing on this matter was not available to your client as scheduled by DSS and should not have been conducted. Accordingly, your request for a hearing made to DSS is dismissed for lack of jurisdiction, pursuant to DSSM §5304 and the Memorandum of Understanding between DDDS and DSS.

Date: January 5, 2005




Ann Woolfolk, DAG, Counsel for DDDS
Lexie McFassel, Esq. Counsel for Redacted Redacted


  • EXHIBIT #1 - Copy of Memorandum of Understanding between DDDS and DSS, consisting of four pages (not fully executed).
  • EXHIBIT #2 - Copy of July 20, 2004 letter to Lisa Furber, consisting of two (2) pages.
  • EXHIBIT #3 - Copy of July 28, 2004 letter to Roger Waters, consisting of two (2) pages.