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Massachusetts Family of Autistic Son Can Keep Disability Support Offered by Medicaid’s Adult Foster Care Program

By Winston Law Group in Public Benefits Eligibility

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A family from a community on Boston’s North Shore, represented by the law firm of Winston Law Group, recently prevailed in reversing a Massachusetts Department of Developmental Services (DDS) policy denying critical support services for their autistic son.

The purpose of the DDS Program is to prevent disabled children from living in a state-operated facility. DDS offers funding that allows the child to remain at home and be educated within the community. The program provides an array of services and supports that supplement other services that the child may be receiving, such as private health insurance or Medicaid.

The family’s oldest autistic child became eligible for Medicaid’s Adult Foster Care program (AFC) when he reached the age of 18. AFC is a Medicaid-funded program that provides care-giving services to disabled individuals in a private residence. The primary goal of this program is also to keep the disabled individual in the community and out of a publicly funded facility. Medicaid pays the caregiver a regular stipend for providing 24 hour care in a safe environment. The AFC provider in this case was the mother, which is allowable within the Medicaid regulations.

DDS terminated the autistic child’s eligibility from its program because of his participation with AFC. DDS reasoned that if paid under the AFC program, then the family would be paid for services for the child that overlapped somewhat from two support programs, and therefore the child was not eligible to participate at all in the DDS program.

Attorney Couture successfully advocated at a hearing before a DDS officer that the DDS and AFC support programs provide completely separate services to the autistic child and therefore the DDS argument was without merit. The most important factor in this case, however, was that the DDS did not follow its own contract with the family, which detailed when and why a disabled child would lose funding. Despite the agency attorney’s firm opposition, the Assistant Commissioner of the Department of Developmental Disabilities reversed the agency’s previous decision and allowed the child to remain in the program indefinitely. It is not known if this decision will be implemented by the DDS in all similar cases, or just applies to this child and his family.

  • Michael Couture

    Michael Couture is an associate at the law firm of Winston Law Group, LLC, where he specializes in Veterans’ benefits, Veterans’ healthcare, Medicaid, Social Security, special needs law, and estate planning. He is an accredited attorney with the Department of Veterans Affairs, as well as a member of the National Academy of Elder Law Attorneys and the Massachusetts Bar Association.

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