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 

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

FILED 7-9-2019
JOHNSON v. ADES/DES

Opinion of the Court

2 

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, 
JOHNSON v. ADES/DES

Opinion of the Court

3 

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. 
JOHNSON v. ADES/DES

Opinion of the Court

4 

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.
JOHNSON v. ADES/DES

Opinion of the Court

5 

¶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)]. 

* * * 
JOHNSON v. ADES/DES

Opinion of the Court

6 

(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.
JOHNSON v. ADES/DES

Opinion of the Court

7 

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.
JOHNSON v. ADES/DES

Opinion of the Court

8 

¶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 
JOHNSON v. ADES/DES

Opinion of the Court

9 

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.
JOHNSON v. ADES/DES

Opinion of the Court

10 

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.
JOHNSON v. ADES/DES

Opinion of the Court

11 

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 
JOHNSON v. ADES/DES

Opinion of the Court

12 

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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Opinion of the Court

13 

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.