Opinion
No. 12–P–969.
2013-07-9
C.T. v. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.
By the Court (COHEN, GRAHAM & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Alexandra T., the guardian of her sister C.T., a severely intellectually disabled woman, opposes the proposal of the Department of Developmental Services (DDS) to transfer C.T. from Cottage 9 at the Fernald Developmental Center (FDC) to 4 Hathorne Circle, Apartment E (apartment E) at the Hogan Regional Center (HRC) .
Following a two-day hearing, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfer. See G.L. c. 123B, § 3. On judicial review pursuant to G.L. c. 30A, § 14(7), a Superior Court judge summarily affirmed DALA's decision. After carefully reviewing the administrative record and the arguments presented, we reject any claims of error foreclosed by M.D. v. Department of Developmental Servs., 83 Mass.App.Ct. 463 (2013); find no prejudice in the statutory transfer notice; and decline to reach the merits of the guardian's untimely Federal regulatory violation claims. We further conclude that the magistrate's findings that DDS complied with its regulatory duties and met its burden under the State statutory standard were supported by substantial evidence. Statutory notice. The guardian claims that DDS's statutory notice failed to explain how the transfer would result in improved services, supports, and quality of life for C.T. See G.L. c. 123B, § 3, and 115 Code Mass. Regs. § 6.63(2)(c)(1) (2009). This same argument has been raised in all pending transfer appeals. Even assuming the statutory notice was defective, there has been no showing here of potential prejudice to substantial rights. See G.L. c. 30A, § 14(7); Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass.App.Ct. 267, 287 n. 28 (2007).
As certified Intermediate Care Facilities for the Intellectually Disabled (ICFs), FDC and HRC both provide a full range of on-site services and supports necessary to meet Federal requirements. See Title XIX of the Social Security Act, 42 U.S.C. § 1396 (2006).
In its notice, DDS invited the guardian to visit HRC, providing the names and telephone numbers of several administrators and clinicians who could be contacted to discuss the advantages and disadvantages of the move. Without visiting the facility or contacting any HRC staff, the guardian submitted her detailed written objection less than two weeks into the forty-five day statutory period. Thus, regardless of any technical shortcoming in the notice, the guardian obviously believed that she had sufficient information to conclude that the transfer would not be in C.T.'s best interest.
Notably, the guardian did not request a continuance of the administrative hearing or claim that she was prejudiced in the presentation of her case because she lacked adequate information. Compare M.D. v. Department of Developmental Servs., supra at 471–473.
In her objection letter, the guardian gave several reasons for opposing the transfer. Lack of sufficient information was not one of them. While the guardian referred in a footnote to the technical errors in the notice, as the magistrate noted, she did not identify them. She did visit HRC before the DALA hearing.
Adequacy of transition plan. There is no merit to the guardian's argument that in reaching his decision, the magistrate relied on a “poorly constructed, error ridden” individual transition plan (ITP).
DDS's failure to correct the factual errors in the draft ITP as requested by the guardian was unfortunate. However, several other documents entered in evidence contained the correct information, including C.T.'s most recent ISP and her updated health transfer plan; further, the specific errors identified by the guardian played no role in the magistrate's decision.
The guardian identifies two errors in the July 29, 2010, ITP: (1) notwithstanding the removal of C.T.'s teeth in April, 2010, a description of C.T.'s tooth-brushing habits; and (2) a reference to the need for “close monitoring” of C.T. on third shift as opposed to the continuous one-on-one staffing required by her individual support plan (ISP). At the administrative hearing, the guardian specifically pointed out errors in the ITP, including the erroneous tooth-brushing reference.
As the magistrate found, C.T.'s undisputed need for continuous one-on-one staffing was discussed at the ITP meeting attended by the HRC staff. Moreover, Nancy Perrotti, FDC's ITP nurse, attended the ITP meeting and discussed all of C.T.'s medical conditions with the HRC staff.
Federal claims. The guardian's legal claim that the ITP violates certain Federal regulatory standards governing active treatment services was not raised at DALA.
See 42 Code Fed. Regs. §§ 483.440(b)(4) (2011) (requiring ICF to document in the record good cause for transfer or discharge of a client) and 483.440(b)(5) (2011) (imposing a duty on ICF at the time of discharge to develop a final summary and a postdischarge plan). DDS and DALA objected to the late-filed claims first raised in the Superior Court. Judicial review of a final agency decision was not the appropriate time to assert new claims that could have been raised at the agency level. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983). In any event, were we to consider these Federal claims, we would conclude that they were beyond the scope of a transfer proceeding authorized by G.L. c. 123B, § 3. See M.D. v. Department of Developmental Servs., supra at 466.
Active treatment services is one of the eight conditions of participation in the joint Federal–State Medicaid program. As part of its annual survey, each ICF must satisfy over 400 criteria to meet these conditions and remain certified and eligible for Federal funding. The guardian has not directed us to any authority giving her a private right of action to enforce these regulations.
Best interest. There was substantial evidence to support the magistrate's ultimate finding that DDS proved that the proposed transfer to HRC would result in improved services and quality of life for C.T., thus satisfying the statutory best interest test. See G.L. c. 123B, § 3; Duggan v. Board of Registration in Nursing, 456 Mass. 666, 673–674 (2010). In comparing the services, supports, and environments of the respective ICFs in light of Caroline's particular circumstances, the magistrate found that some features of FDC were preferable, some favored HRC, some were equivalent, and that some had both potential benefits and downsides. The magistrate considered the objections and concerns of the guardian and found them to be either insignificant, valid but outweighed by other benefits, or adequately addressed by DDS.
The weighing of these elements was a matter for the magistrate as the finder of fact.
For example, the magistrate recognized that despite the over-all improved social setting of HRC, due to C.T.'s territoriality, the higher census of apartment 3 and the proposed roommate would have a downside, presenting the possibility of conflict with the other women. The magistrate found that DDS had considered another placement for C.T. at HRC where she could have her own bedroom as she has at FDC. DDS rejected the placement because it lacked a sunroom where C.T. likes to sleep on a recliner and because the residents did not function at the same level as C.T. Because the proposed roommate has few possessions and spends little time in the bedroom, the magistrate concluded that she would not present a significant problem for C.T. The magistrate found that although the proposed sunroom was less private than the sunroom at FDC, the layout of HRC offered the benefit of more privacy on the occasions C.T. leaves the bathroom without being fully clothed. While its location on the second floor would not allow C.T. to exit the building on her own in an emergency, HRC has a safety plan that addresses evacuating limited-mobility residents, and being on the second floor would curb C.T.'s propensity to wander away.
Ibid. See M.D. v. Department of Developmental Servs., supra at 473.
The magistrate concluded that given C.T.'s extensive medical needs, her history of injuring herself in falls, and her social nature, the benefits of HRC with its fuller staffing, the different resource-sharing staffing model, the increased opportunities for on-site social interactions with compatible apartment mates, and the wider variety of leisure activities available on and off campus outweighed the objections to the transfer (including the potential for C.T.'s behavioral issues to impede her adjustment to living with more people, and the greater distance of HRC from the guardian's home).
Not only is the guardian's claim based upon a view of the evidence that the magistrate was not required to take, it also is based upon an incorrect understanding of the law. The guardian's argument that the proposed transfer should be denied unless the benefits of the transfer “clearly and substantially outweigh” the potential risks, does not appropriately state the standard chosen by the Legislature; and, contrary to the guardian's position, the magistrate correctly interpreted his statutory mandate as limited to comparing C.T.'s FDC placement with the proposed placement at HRC. See M.D. v. Department of Developmental Servs., supra at 476–477 (DALA has no duty to consider alternative placements beyond the one proposed by DDS).
Least restrictive environment. Alexandra T. is the only guardian involved in the recent transfer cases to express a preference for a community placement for her ward. All parties agree that under Federal and State law, C.T. has the right to live in “the least restrictive, most typical, appropriate residential environment ... suited to [her] individual needs.” 115 Code Mass. Regs. § 6.05(2)(e) (2009). See also Ricci v. Okin, 823 F.Supp. 984, 987 (D.Mass.1993). This principle is repeated in a number of DDS regulations.
See e.g., 115 Code Mass. Regs. §§ 5.03(2)(d) and 6.20(2)(a)(4) (2009).
Least restrictive means “those settings, modes of service, and styles of living or working that are most similar to and most integrated with what is typical and age-appropriate in the community, and which interfere the least with the individual's independence.” 115 Code Mass. Regs. § 2.01 (2009).
The guardian framed her claim under the Americans with Disabilities Act of 1990. After properly declining to consider the guardian's Federal law claim, see M.D. v. Department of Developmental Servs., supra at 466–468, the magistrate reached the issue under parallel State law. Although DDS argues that the magistrate lacked authority to consider the least restrictive setting question in the context of a transfer proceeding, we think that any concerns regarding the environment of the proposed placement were relevant to C.T.'s quality of life and thus properly were considered by the magistrate in his best interest analysis. See G.L. c. 123B, § 3.
Here, the magistrate was warranted in determining that, in C.T.'s particular circumstances, DDS's selection of HRC (an ICF) over a group home “did not violate its regulatory obligation to ensure [C.T.] lives in the least restrictive environment.”
While the magistrate might have elaborated more fully upon the basis for his conclusion,
The magistrate acknowledged that a group home has the potential to be less restrictive for C.T. than an ICF, but also recognized that, in the past, DDS and the guardian were unable to find a group home that was suitable for C.T. and acceptable to the guardian. Notably, counsel for the guardian acknowledged at oral argument that, depending on the circumstances, an individual might be able to have a greater measure of independence in a particular ICF than in some group homes. The record reflects that the guardian considers the ICF model to be a good one and is not opposed to an ICF as an option for C.T. In fact, the guardian's top placement choice for C.T., the Franklin Perkins School, a privately-run group home slightly larger than HRC, is operated on the ICF model; it has a large campus similar to the ICFs, and apartments similar to the one that C.T. would occupy at HRC. Unfortunately, the Franklin Perkins School declined to accept C.T. into its program, apparently because it could not meet all of her needs.
after consideration of his decision as a whole and of the evidence adduced at the hearing, we conclude that his subsidiary findings of fact and the record support his determination.
DDS recommended an ICF placement for C.T., who has lived in an ICF since 1954. (Before making this recommendation, other options were explored. See note 11, supra.) After stating that the reason for DDS's preference was not explicitly set forth in the record, the magistrate found “some clues” for the preference from setting and the reasons given by the guardian for the rejection of the Acton group home option (i.e. lack of dedicated nursing and proximity to a highway). Were this all there was to go on, one might question whether the least restrictive environment finding was adequately grounded. However, close examination of the decision and the underlying evidence makes clear that the issue received due consideration and that the finding is sufficiently supported.
There was, in fact, record evidence explaining DDS's ICF preference for C.T. According to Janet Sullivan, one of the placement coordinators involved in the transfer decision, C.T.'s ISP team considered an ICF the better option because it offered a full range of on-site services and clinicians as well as an on-site day program. Although services and clinicians are also available at group homes, typically they are not as immediately available. Given C.T.'s extensive medical needs and her history of injuries from falling, the magistrate properly could find that nursing and medical care are significant to her; that HRC would be able to provide more on-site medical services than a typical group home; and with a large campus, HRC would limit the risk of harm to C.T., who has the propensity to wander off.
As the magistrate recognized, in fifteen years of surveys by the State Department of Public Health, HRC has a blemish-free record in client protection and active treatment services.
Finally, it is obvious that the magistrate also considered restrictiveness as a factor when comparing C.T.'s situation at FDC to her prospective placement at HRC. For example, he found that at FDC, the recreational opportunities are limited and weekend trips into the community are no longer available. In contrast, at HRC, use of the recreational building and community trips would be available nights and weekends. At FDC, C.T. lives with three other women with whom she has limited social interaction. At HRC, she would live with eight active women. At FDC, C.T. must be pushed in her wheelchair from her residence to all other buildings, including her work site (or loaded in her wheelchair on to a van and driven).
At HRC, C.T.'s residence is connected by wide corridors to the other residential buildings and to the recreation department, allowing her more freedom of movement.
C.T.'s ISP requests that C.T. walk indoors, but requires the use of a wheelchair for all outdoor travel.
Conclusion. We appreciate the high degree of concern that the guardian has for the well-being of C.T., and recognize that any transfer from FDC, where C.T. has spent nearly all of her life, will be a significant adjustment for them both. We are persuaded, however, that the magistrate's decision that transfer to HRC is in C .T.'s best interest is in accordance with law and supported by substantial evidence. The judgment of the Superior Court affirming DALA's transfer decision is, accordingly, affirmed.
So ordered.