                                  IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                       JESSE JOHNSON, Appellant,

                                     v.

   ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency,

                                    and,

                           DES/DDD, Appellees.

                           No. 1 CA-UB 18-0105
                             FILED 7-9-2019


                 Appeal from the A.D.E.S. Appeals Board
                          No. P-1561522-001-B

                     VACATED AND REMANDED


                                COUNSEL

Lewis Roca Rothgerber Christie LLP, Phoenix
By Justin J. Henderson
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Appellee Arizona Department of Economic Security
                        JOHNSON v. ADES/DES
                          Opinion of the Court



                                OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in
which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.


M c M U R D I E, Judge:

¶1            Jesse Johnson appeals the Arizona Department of Economic
Security’s (“Department”) decision denying his application for services
from the Division of Developmental Disabilities (“DDD services”), and the
Department has conceded possible error. We hold that to be eligible for
DDD services, Arizona Revised Statutes (“A.R.S”) section 36-551(19)
requires that a disability manifest before a claimant turns 18, not that the
disability be diagnosed before that time. We further hold that regardless of
the origin of the impairment, a claimant need only prove a cognitive
disability as defined by A.R.S. § 36-551(14). Thus, we vacate the
Department’s decision and remand for a determination of the DDD services
that Johnson is eligible to receive.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Johnson is 39 years old and has suffered from severe medical
and behavioral problems for more than 20 years. Beginning in his
mid-teens, Johnson experienced several behavioral changes, marked by
social withdrawal, depression, and disorganized thinking, including signs
of a thought disorder. His grade-point average dropped significantly, and
he never finished high school. Johnson has seen little to no improvement
over the last 23 years and struggles to complete daily functions without
supervision, including showering, cooking, cleaning, paying bills, and
checking for mail.

¶3            In 2000, at 20 years old, Johnson underwent his first
neuropsychological evaluation. Testing by Dr. James Youngjohn revealed a
full-scale IQ of 59, and the neuropsychologist opined Johnson most likely
suffered from schizophrenia. Dr. Youngjohn, however, also opined that
“[a]nother possibility would be some form of neurologic disease such as
some form of post encephalitic condition or perhaps some form of post
toxic/metabolic encephalopathy.” Later assessments showed Johnson’s IQ
remained low. It was measured at 70 in 2002 and 63 in 2015. Over the years,




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                           Opinion of the Court

several doctors continued to report that Johnson likely suffered from
multiple disorders that limited his life functions.

¶4            For example, in 2002, Dr. Youngjohn reaffirmed his
conclusions of two years before. Also in 2002, Dr. Robert Crago, a licensed
psychologist, evaluated Johnson and determined that he “presents with a
significant and disabling symptom pattern,” and “[m]ost prominent of his
symptomatology are significant changes in his cognitive skills and
emotional regulation.” Dr. Crago reported:

      Mr. Johnson’s current clinical presentation suggests a mixed
      etiology. That is, by history he appeared to suffer some type
      of mental and emotional breakdown at age 16 involving a
      depressed mood with social withdrawal and even perhaps
      some psychotic features. However, upon being exposed to
      toxic mold his condition greatly worsened and the clinical
      picture became somewhat confused. I believe he was
      probably manifesting some signs of toxic encephalopathy
      confusing his emotional presentation.

¶5            In 2015, psychologist Dr. Raymond Lemberg evaluated
Johnson and diagnosed him with: (1) mild neurocognitive disorder, with
behavioral disturbance, due to traumatic brain injury; (2) mild
neurocognitive disorder, due to another medical condition, i.e., mold
exposure; and (3) schizoaffective disorder, by history. He reported Johnson
“needs a great deal of help managing activities of daily living, as [his]
mother visits him daily to assist him with these activities.” One year later,
psychologist Dr. Karen Sullivan examined Johnson and diagnosed him
with neurocognitive disorder due to multiple etiologies and with
schizoaffective versus schizophrenic disorder. She explained that after
talking with Johnson’s mother and reviewing the file, “it does appear that
Mr. Johnson is unable to take care of his daily and essential activities
without the help of family and that he will need ongoing support and care.”

¶6            Johnson applied for DDD services, and the Department
issued a notice denying eligibility in November 2015. After administrative
review, the Department determined Johnson was ineligible for DDD
services in part because he did not have a qualifying diagnosis before the
age of 18. Johnson appealed the determination, and a hearing was held
before an Administrative Law Judge (“ALJ”).

¶7            At the hearing, Dr. Michael Gray, one of Johnson’s treating
physicians, testified he diagnosed Johnson with mixed mold mycotoxicosis.



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                            Opinion of the Court

When asked whether he had “an opinion within a reasonable degree of
medical certainty as to whether . . . [the] mold exposure [he] treated Jesse
Johnson for had any effect on his neurocognitive functioning,” Dr. Gray
responded: “Yes. . . . He was compromised by the presence of the toxins
and he remains compromised as a result of that . . . .” Dr. Gray testified
Johnson “demonstrated neurocognitive decline . . . [and] was really
compromised. His memory was compromised. His ability to think clearly
and focus was compromised.” Dr. Lemberg also testified he had diagnosed
Johnson with neurocognitive disorder due to multiple etiologies. He
testified “it’s been 20 years since [Johnson] began to show dysfunction
and . . . [he has] deteriorated over time . . . [and] just has very limited
functioning. I do not believe that he is going to get better in any significant
way.”

¶8             The Division of Developmental Disabilities’ medical director,
Dr. Pamela Tom, a medical doctor, testified for the Department. She
testified she did not believe there was evidence that toxic chemicals
produced by mold can cause human illness, and that Johnson’s symptoms
“appear[ed] to [her] to be either schizoaffective disorder or schizophrenia.”
However, she agreed Johnson demonstrated a “sharp drop in cognitive
functioning” that manifested before he turned 18 years old and that
Johnson is likely not “able to function independently in activities of basic
daily living.”

¶9            After the hearing, the ALJ affirmed the denial of services. The
ALJ found the evidence failed to show “that any developmental disability
was a severe chronic disability attributable to cognitive disability;
manifested before age 18; and [was] likely to continue indefinitely.” See
A.R.S. § 36-551(19).

¶10           Johnson petitioned the Department’s Appeals Board to
review the ALJ’s decision. The Appeals Board found Johnson had
substantial limitations in at least three areas of major life activity and that
his condition was likely to continue indefinitely. It also found “the evidence
clearly establishe[d] that [Johnson] has subaverage intellectual
functioning.” But the board “reject[ed] [Johnson’s] arguments concerning
the existence of a cognitive disability that manifested itself before the age of
18.” The Appeals Board noted Johnson had presented no IQ test results or
medical records predating his 18th birthday and explained, “[g]iven the
lack of a consistent medical diagnosis and the lack of any diagnosis before
[Johnson’s] 18th birthday, we find it impossible to determine the cause of
[Johnson’s] cognitive deficits.” The Appeals Board affirmed the ALJ’s
decision.


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                           Opinion of the Court

¶11           Johnson timely applied for an appeal with this court. This
court granted the application for an appeal. We have jurisdiction under
A.R.S. § 41-1993(B).

                               DISCUSSION

¶12           “We view the evidence in the light most favorable to
upholding the Appeals Board’s decision and will affirm if the decision is
supported by substantial evidence.” Rios Moreno v. ADES, 178 Ariz. 365, 367
(App. 1994). We defer to the Appeals Board’s findings of fact unless they
are arbitrary, capricious, or an abuse of discretion. Figueroa v. ADES, 227
Ariz. 548, 550, ¶ 9 (App. 2011). “However, legal conclusions of the appeals
board are not binding on this court; we are free to draw our own legal
conclusions in determining if the appeals board properly interpreted the
law.” Munguia v. ADES, 159 Ariz. 157, 159 (App. 1988). It is an abuse of
discretion to misapply the law. Rios Moreno, 178 Ariz. at 367.

¶13           Johnson asserts the Appeals Board denied him eligibility for
services because he did not have a diagnosis before he turned 18 years old.
He argues a claimant need not show a qualifying diagnosis before age 18,
or the cause of the disability, but only needs to establish that a disability
manifested before the claimant’s 18th birthday. Johnson contends that the
record shows his disability manifested before his 18th birthday and he is,
therefore, entitled to DDD services.

A.    A Claimant Does Not Have to Receive a Diagnosis Before Turning
      18 Years Old to be Eligible for DDD Services.

¶14           By statute, to be eligible to apply for DDD services, a person
must be an Arizona resident and “provide[] medical and psychological
documentation of [a] developmental disability utilizing tests which are
culturally appropriate and valid.” A.R.S. § 36-559(A). The statute defines a
developmental disability as a “severe, chronic disability that”:

      (a)    Is attributable to cognitive disability . . . .
      (b)    Is manifested before the age of eighteen.
      (c)    Is likely to continue indefinitely.
      (d)   Results in substantial functional limitations in three or
      more areas of major life activity [defined in (d)(i)–(vii)].
                                *      *       *




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                            Opinion of the Court

       (e)    Reflects the need for a combination and sequence of
       individually planned or coordinated special, interdisciplinary
       or generic care, treatment or other services that are of lifelong
       or extended duration.[1]
A.R.S. § 36-551(19). A “cognitive disability” is “a condition that involves
subaverage general intellectual functioning, that exists concurrently with
deficits in adaptive behavior manifested before the age of eighteen and that
is sometimes referred to as intellectual disability.” A.R.S. § 36-551(14).

¶15           On appeal, the Department agrees with Johnson that A.R.S.
§ 36-551(19) does not require a claimant to have obtained a diagnosis before
turning 18 years old as it only requires the developmental disability to
manifest before then. The Department further concedes the Appeals Board
“may have erred by applying an incorrect standard” when it determined
Johnson’s eligibility, and asks this court to vacate the Appeals Board’s
decision and remand for reconsideration. We agree with both parties that a
claimant need not be diagnosed with the disability before turning 18 years
old to be eligible for DDD services, and we hold the Appeals Board erred
by relying on the fact that Johnson was not diagnosed before he turned 18
years old.

¶16               “‘Manifested before the age of eighteen’ means that the
disability must be apparent and have a substantially limiting effect on a
person’s functioning before the age of eighteen.” A.R.S. § 36-551(32). Read
together, the plain language of A.R.S. § 36-551(19) and (32) requires only
that the disability manifest, or become apparent, before the person turns 18,
not that it be diagnosed before that time. See Chaparral Dev. v. RMED Int’l.,
Inc., 170 Ariz. 309, 311 (App. 1991) (if a statute’s “language is plain and
unambiguous, then no construction is necessary and our duty is simply to
apply that plain and unambiguous language”). We will not require that a
person be diagnosed before turning eighteen when no such requirement is
found within the statute. See Cicoria v. Cole, 222 Ariz. 428, 431, ¶ 15 (App.
2009) (“Courts will not read into a statute something that is not within the
manifest intent of the legislature as indicated by the statute itself . . . .”).
Thus, the Appeals Board erred to the extent it denied Johnson’s application
because Johnson was not diagnosed before his 18th birthday. See Williams
v. Cahill ex rel. County of Pima, 232 Ariz. 221, 228, ¶ 25 (App. 2013) (“[W]here
a defendant’s intellectual and adaptive functioning were not tested when


1      Whether Johnson’s disability         meets the     criteria   of A.R.S.
§ 36-551(19)(e) is not in dispute.



                                       6
                          JOHNSON v. ADES/DES
                            Opinion of the Court

he was a child, or where such test results are unavailable, a trial court must
consider whether inferences from other evidence establish that the onset of
concurrent deficits in these areas, sufficient to meet statutory requirements,
occurred before the defendant reached the age of eighteen.” (construing
A.R.S. § 13-753’s definition of “intellectual disability”)).

¶17            Although the Department asks us to remand for further
fact-finding, there is no dispute in the record that Johnson’s “condition”
manifested before he turned 18 years old. As stated by the Appeals Board:

       There is ample evidence that [Johnson] began to display
       significant changes in his behavior, personality and general
       functioning at the age of 15. During the period before his 18th
       birthday, [Johnson] earned failing grades, dropped out of
       school, withdrew from social activities, and due to his
       behavior he was asked to no longer reside in his mother’s
       house on more than one occasion.

Johnson’s mother testified her son experienced significant and substantial
behavioral, social, and academic changes before he turned 18 years old.
Moreover, the Department’s witness agreed that regardless of Johnson’s
diagnosis, his symptoms manifested before he turned 18 years old and
“reflected a sharp drop in cognitive functioning.” Thus, even though his
cognitive disability was not diagnosed before Johnson’s 18th birthday, he
established his condition manifested before that date.

B.     Johnson has a “Developmental Disability” and is Eligible for
       DDD Services.

¶18            The Appeals Board recognized Johnson suffers from a
cognitive deficit. The board also expressly agreed that Johnson’s “condition
is likely to continue indefinitely and that he has substantial limitations in at
least three areas of major life activity.” Thus, as a matter of law, Johnson
has a “developmental disability” as defined by A.R.S. § 36-551(19).

¶19           The Department, however, argues this case should be
remanded for reconsideration in light of the appropriate standard of
review, which it asserts is whether Johnson suffers “from a qualifying
diagnosis that . . . manifested before age eighteen.” (Emphasis added.) As
the Appeals Board found, the Department maintains that a cognitive deficit
caused in part by a claimant’s mental illness would not qualify for DDD
services. Johnson counters that the statute does not require him to prove he
had a “qualifying diagnosis” or the cause of his cognitive disability.



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                           Opinion of the Court

¶20           Beyond erroneously requiring a diagnosis before Johnson’s
18th birthday, the Appeals Board concluded he was not eligible for DDD
services because it could not determine the cause of his disability. After
laying out the “ample evidence” that Johnson began displaying “significant
changes in his behavior, personality and general functioning at the age of
15,” the Appeals Board found:

      The record reveals that there are a variety of factors which,
      alone or in combination, could have contributed to the change
      in [Johnson]. [Johnson’s] father died when [he] was 15 years
      old. He was exposed to toxic mold while on a school trip and
      in his own home. He experienced several blows to the head.
      He used marijuana and possibly other drugs. Because no
      medical records were submitted for the period before
      [Johnson’s] 18th birthday, it is impossible to determine the cause
      of [Johnson’s] cognitive deficits and whether that cause began to
      affect [Johnson] before his 18th birthday.

(Emphasis added.) The board went on to recount the contradicting medical
evidence regarding the origin of Johnson’s issues—whether he suffered
from a psychiatric disorder, an illness due to mold exposure, a brain injury,
or some combination of those—and concluded “[g]iven the lack of a
consistent medical diagnosis and the lack of any diagnosis before
[Johnson’s] 18th birthday, we find it impossible to determine the cause of
[Johnson’s] cognitive deficits.” (Emphasis added.)

¶21           The statutes governing eligibility for DDD services do not,
however, require a claimant to establish the cause of the disability. “If a
statute’s language is clear and unambiguous . . . we apply it as written
without resorting to other methods of statutory interpretation.” State v.
Kemmish, 244 Ariz. 314, 316, ¶ 10 (App. 2018). As stated above, we will not
engraft a requirement onto a statute that the legislature did not see fit to
include. Cicoria, 222 Ariz. at 431, ¶ 15.

¶22            Although a claimant must provide documentation of a
developmental disability, A.R.S § 36-559(A)(2), the statute defining
“cognitive disability” makes no mention of the cause of the disability.
Instead, it defines the term solely with respect to the existence of the
disabling condition: If a claimant’s condition “involves subaverage general
intellectual functioning, that exists concurrently with deficits in adaptive
behavior manifested before the age of eighteen,” A.R.S. § 36-551(14), he or
she has a “cognitive disability” for DDD services eligibility. If the
legislature intended to allow services only to persons who can show a


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                          JOHNSON v. ADES/DES
                            Opinion of the Court

cognitive disability from specific causes, it could have done so. See Padilla
v. Indus. Comm’n, 113 Ariz. 104, 106 (1976) (a fundamental principle of
statutory construction is that “what the Legislature means, it will say”); cf.
A.R.S. § 36-551(10) (defining “cerebral palsy” as “a permanently disabling
condition resulting from damage to the developing brain that may occur before,
after or during birth and that results in loss or impairment of control over
voluntary muscles”) (emphasis added).

¶23             The Department argues that the Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) and the commonly accepted
diagnoses of intellectual or cognitive disability do not include cognitive
impairments caused by psychiatric conditions. 2 Even if the Department’s
assertion is true, the legislature chose not to reference the DSM or otherwise
specify that the mental health community’s standard definition would limit
eligibility for DDD services for a claimant who is cognitively disabled. The
legislature included the phrase “and that is sometimes referred to as
intellectual disability” after its given definition of “cognitive disability.” See

2       Courts have recognized that intellectual disability and mental illness
are sometimes conflated. See State v. Grell, 231 Ariz. 153, 158–60, ¶¶ 23–35
(2013) (summarizing expert witness testimony that personality disorders
can coexist with intellectual disability and noting defendant’s mental health
history “provides strong evidence” that he suffered a significant
impairment in his adaptive behavior); Lambert v. State, 126 P.3d 646, 651,
659, ¶¶ 6, 31 (Okla. Crim. App. 2005) (defendant not required to show that
intellectual disability is the cause of limitations in adaptive functioning and
noting “[it] is possible to be mentally retarded and mentally ill. [Defendant]
has not claimed to be mentally ill, and [the state’s offered] evidence of
mental problems did not make the issue of his mental retardation more or
less likely”); Coleman v. State, 341 S.W.3d 221, 250–52 (Tenn. 2011)
(discussing the potential problems with determining the cause of a
cognitive disability when an individual presents with dual diagnoses of
intellectual disability and mental illness); see also Steven J. Mulroy, Execution
by Accident: Evidentiary and Constitutional Problems with the “Childhood
Onset” Requirement in Atkins Claims, 37 Vt. L. Rev. 591, 614 (2013) (“[T]he
widely shared opinion of medical experts [is] that [intellectual disability]
and other psychological disorders are often interwoven, making it
impossible to untangle one from another as the cause of observed cognitive
and adaptive deficits.”). The soundness of requiring an individual to
establish the cause of a cognitive disability is not before this court, but this
case illustrates the potential problem of requiring a claimant to prove that
a mental illness did not cause the cognitive disability.



                                        9
                         JOHNSON v. ADES/DES
                           Opinion of the Court

A.R.S. § 36-551(14) (emphasis added). But even assuming that phrase is a
reference to the DSM or the mental health community’s definitions, so long
as a claimant meets the first two elements of A.R.S. § 36-551(14)’s definition,
he or she has a “cognitive disability.” That the presentation of symptoms
may sometimes be the result of a condition that is “referred to as intellectual
disability” by the mental health community does not mean that the statute
adopted the DSM’s definition of the phrase. 3

¶24           The Appeals Board recognized Johnson has a “cognitive
deficit.” The Department maintains there is a distinction—based on the
cause of the condition—between having a cognitive impairment and
having a cognitive disability as defined by A.R.S. § 36-551(14). The Appeals
Board’s decision, however, implicitly found that Johnson established every
element of the statutory definition of cognitive disability. The board found
the evidence established Johnson had subaverage intellectual functioning.
It also found “the record is replete with evidence of [Johnson’s] inability to
handle even simple tasks” and noted that “the Department’s own witness
opined that [Johnson’s] condition made it impossible for [him] to function
independently.” See A.R.S. § 36-551(14). Thus, the Appeals Board’s
findings, which are supported by the record, establish that Johnson has a
“cognitive disability” qualifying him for DDD services. The Appeals Board
erred by holding otherwise, and we remand for a determination of the
services Johnson is eligible to receive.

¶25           We note that Arizona Administrative Code (“A.A.C.”)
R6-6-303(A)(4), which became effective August 24, 2018, details the type of
“cognitive/intellectual disability” diagnosis the Department “shall” accept
to determine eligibility for DDD services. Under the regulation, the
evaluating psychologist must consider other mental disorders when
making the diagnosis and “[t]o be eligible for the program, in the presence
of co-existing mental illness, an individual’s cognitive/intellectual
disability shall not be the result of the onset of mental illness.” A.A.C.
R6-6-303(A)(4)(a)–(b) (emphasis added). Although A.A.C. R6-6-303 was not
in effect when Johnson applied for DDD services or when the Appeals

3      We also note that A.R.S. § 36-551(6) defines “[a]ttributable to
cognitive disability [as] a causal relationship between the presence of an
impairing condition and the developmental disability.” (Emphasis added.)
The legislature’s choice to again not require a specific “impairing
condition” to cause a developmental disability further supports the
conclusion that a claimant need not establish the cause of a cognitive
disability.



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                          JOHNSON v. ADES/DES
                            Opinion of the Court

Board made its determination, the Department’s witness testified that the
Department’s policy at that time was that “intellectual disability must
precede and be documented prior to any onset of psychiatric or
psychological disorder.” An agency “must exercise its rule-making
authority within the parameters of its statutory grant,” Canon Sch. Dist. No.
50 v. W.E.S. Constr. Co., 177 Ariz. 526, 530 (1994), and it is without power to
enact a regulation that conflicts with a statute, Sharpe v. Ariz. Health Care
Cost Containment Sys., 220 Ariz. 488, 494–95, ¶¶ 18–19 (App. 2009)
(determining whether an administrative rule and agency policy
“unlawfully restrict[ed] the statutory grant of coverage”); see also Freelance
Interpreting Servs., Inc. v. ADES, 212 Ariz. 457, 461, ¶ 26 (App. 2006) (an
administrative rule that diminishes the rights in an enabling statute is not
valid); Ariz. Health Care Cost Containment Sys. Admin. v. Carondelet Health
Sys., 188 Ariz. 266, 270 (App. 1996) (agency rule was invalid because it
denied medical coverage “for an entire group of patients who would
otherwise be covered”). Although the Department acknowledged at oral
argument that the new regulation would not apply to Johnson’s
application, given our holding today that under A.R.S. § 36-551(14) and
(19), a claimant need not establish a qualifying diagnosis or the cause of his
or her cognitive disability to be eligible for DDD services, the validity of the
regulation is open to challenge in another case.

                    ATTORNEY’S FEES AND COSTS

¶26          Johnson requests attorney’s fees, expert witness fees, and
costs incurred on appeal and in the administrative proceedings below
under A.R.S. § 12-348(A)(2) and (I)(1). In relevant part, A.R.S. § 12-348
provides:

       (A)(2) In addition to any costs that are awarded as prescribed
       by statute, a court shall award fees and other expenses to any
       party other than this state . . . that prevails by an adjudication
       on the merits in . . . [a] court proceeding to review a state
       agency decision pursuant to chapter 7, article 6 of this title or
       any other statute authorizing judicial review of
       agency . . . decisions.

                                *      *      *

       (I)(1) “Fees and other expenses” means the reasonable
       expenses of expert witnesses . . . which the court finds to be
       directly related to and necessary for the presentation of the
       party’s case and reasonable and necessary attorney fees, and



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                           JOHNSON v. ADES/DES
                             Opinion of the Court

       in the case of an action to review an agency decision pursuant
       to subsection A, paragraph 2 of this section, all fees and other
       expenses that are incurred in the contested case proceedings in
       which the decision was rendered.

(Emphasis added.)

¶27             The Department argues A.R.S. § 12-348(H)(1) precludes an
award of attorney’s fees to Johnson. That subpart of the statute excludes an
award of attorney’s fees in “an action arising from a proceeding before this
state . . . in which the role of this state . . . was to determine the eligibility or
entitlement of an individual to a monetary benefit or its equivalent.” A.R.S.
§ 12-348(H)(1). We disagree because we conclude that the role of the
Department in this case was not to determine Johnson’s eligibility or
entitlement to “a monetary benefit or its equivalent.”

¶28            The DDD services a person may be entitled to are broader
than a monetary benefit or its equivalent. See Cortaro Water Users’ Ass’n v.
Steiner, 148 Ariz. 314, 319 (1986) (“An example [of a monetary benefit or its
equivalent] is where an applicant is seeking welfare payments or a
disability pension payment.”). The Department may provide an array of
programs and services to individuals enrolled in the developmental
disabilities program, including job-related services and programs, adult
day activity services, residential services, therapy, medical, social
development, transportation, and in-home services. A.R.S. § 36-558(C);
accord A.A.C. R6-6-101(68) (defining “services” as “developmental
disability programs and activities consistent with family support
philosophy and operated by or contracted for the Department directly or
indirectly, including residential services, family and child services, family
and adult services, and case management and resource services”).

¶29           Although the DDD services the Department provides to a
claimant undoubtedly may have an economic impact, such impact is
indirect. See Cortaro, 148 Ariz. at 319 (“If mere economic impact would
exempt an award of fees pursuant to A.R.S. § 12-348, [most state agencies]
would almost always be exempt from payment of attorneys’ fees since most
decisions have some economic impact.”). This court has previously
awarded attorney’s fees in an appeal from a determination that a claimant
was ineligible for DDD services under A.R.S. § 12-348(A)(2). Cooke v. ADES,
232 Ariz. 141, 145–46, ¶ 20 (App. 2013). Similarly, we have also awarded
fees under the statute in an appeal from a denial by the Arizona Health Care
Cost Containment System of a member’s request to receive dentures, a
service she was entitled to through her enrolled plan. Sharpe, 220 Ariz. at


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                        JOHNSON v. ADES/DES
                          Opinion of the Court

491, 500, ¶¶ 2, 44. Thus, we conclude the DDD services Johnson is eligible
for are not merely “a monetary benefit or its equivalent.” We award
Johnson his attorney’s fees and other expenses incurred both on appeal and
in the agency proceedings below, including costs under A.R.S. § 12-341,
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

                             CONCLUSION

¶30         For the foregoing reasons, we vacate and remand for a
determination of the appropriate DDD services to be awarded to Johnson.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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