Opinion
No. 12–P–498.
2013-04-1
T.K. v. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.
By the Court (RAPOZA, C.J., BROWN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves the involuntary transfer of T.K., a profoundly intellectually and physically disabled woman, from the Fernald Developmental Center (FDC) to the Wrentham Developmental Center (WDC).
After two days of hearings, an administrative magistrate of the Division of Administrative Law Appeals (DALA) concluded that the transfer proposed by the Department of Developmental Services (DDS) should proceed as in the best interest of T.K. See G.L. c. 123B, § 3. On judicial review pursuant to G.L. c. 30A, § 14(7), a judge of the Superior Court affirmed DALA's decision. Upon review of the briefs, record appendix, and after oral argument, nothing has been made to appear to cause us to conclude the administrative magistrate erred, much less in any significant manner, in the conduct of the review of the ward's transfer. Accordingly, we affirm the judgment of the Superior Court.
A rehearsal of the efforts to close FDC and the procedures established to effect the transfer of the current residents is set out in general terms in our discussion in M.D. v. Department of Developmental Servs., ante at. For the historical evolution of this matter, see Ricci v. Patrick, 544 F.3d 8 (1st Cir.2008) ( Ricci V ).
We consider the guardians' arguments in the order in which they appear in their brief.
First, to the extent that the guardians claim error in the refusal of the administrative magistrate to consider their Federal law claims, the identical arguments were raised in M.D. v. Department of Developmental Servs., ante at n. 3 ( M.D.'s case).
For the reasons stated in that case, we find no merit to either their legal arguments or their underlying claims.
The guardians' attorney represents a number of families of the wards remaining at FDC, including M.D. and T.K. Contrary to the guardians' argument herein, the Superior Court judge did in fact address the merits, finding no basis for the claims.
Next, we consider the adequacy of DDS's forty-five day statutory notice advising the guardians of the proposed transfer.
See G.L. c. 123B, § 3, and 115 Code Mass. Regs. § 6.63(2)(c)(1) (2009). In M.D.'s case, we concluded that the notice was inadequate based upon DDS's complete failure to tailor the contents of the letter to her individual circumstances. The transfer notice here presents a closer call. While the letter contained the same conclusory boilerplate used in many transfer notices sent out around this time, it did, however, advise the guardians of T.K.'s access to massage therapy at WDC, one specific alleged improvement in services over those available at FDC. Although DDS could have been more expansive in describing the improvements, we think it may be reasonably presumed that the Legislature did not intend to require DDS to include an exhaustive list in the notice letter. Moreover, unlike the notice given in M.D.'s case, the notice here specified the exact location DDS proposed to send T.K., and provided several more contact names and telephone numbers of important WDC personnel willing to discuss the advantages and disadvantages of the placement with the guardians and to coordinate a visit to Merrill Hall.
Both the statute and the implementing regulation require several informational elements to be included in the notice. Only one element—a statement of how the proposed transfer will result in improved services, supports, and quality of life—was allegedly missing from the notice given here.
We note that the guardians elected not to visit Merrill Hall.
Even if the notice was inadequate, the guardians were not prejudiced. 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). The purpose of the notice requirement is to allow guardians to make an informed decision about the proposed transfer within the forty-five day statutory period. Here, not only did the guardians fail to object to the contents of the notice, they submitted a timely, six-page written objection to the proposed transfer describing several ways in which T.K.'s services and quality of life would decline at WDC. The length and detail of the guardians' objection undercut their claim that they had to make a decision without the facts.
Furthermore, as the magistrate noted, in its prehearing answers to interrogatories, DDS provided the guardians with detailed information regarding the alleged improvements. The response accurately presaged the substance of DDS's presentation on the subject at the hearing. In a nutshell, the guardians' contention that specific, individualized information was not forthcoming until the hearing was not supported by the record.
Next, we turn to the evidentiary insufficiencies that the guardians allege tainted the magistrate's decision. Under the substantial evidence standard,
the agency's conclusion will withstand judicial review unless “the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.” Police Dept. of Boston v. Kavaleski, 463 Mass. 680, 692 (2012), quoting from Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674 (2010). Applying this standard, we conclude, as did the Superior Court judge, that the magistrate's decision approving the transfer was supported by substantial evidence.
See Boston Gas Co. v. Assessors of Boston, 82 Mass.App.Ct. 517, 521 (2012), quoting from Assessors of Brookline v. Buehler, 396 Mass. 520, 524 (1986) (citations omitted).
The magistrate's decision established that he carefully compared the relevant medical, recreational, and habilitation services and supports available at FDC with those available at WDC in light of the guardians' objections, some of which he found valid but not dispositive. As the magistrate fairly recognized in considering the totality of the circumstances, many of the services offered at WDC were only equivalent to those available at FDC (and not improvements as required by the statutory standard), and some factors favored FDC. On the other side of the equation, the magistrate was entitled to find, consistent with the evidence, that many of the services and features of WDC were superior to what was offered at FDC, including the medical care, the therapy programs, and the greater opportunities for fresh-air and offsite excursions and pool use (activities enjoyed by T.K.).
The weighing of these factors is a matter entrusted to the discretion of the magistrate. See Maguire v. Director of the Office of Medicaid, 82 Mass.App.Ct. 549, 553 (2012). In short, the magistrate's finding that DDS met its burden of showing that WDC would offer improved services and quality of life for T.K. was supported by substantial evidence.
Although the guardians correctly point out that not every medical service represents an improvement, the finding that overall, T.K. would receive improved medical care at WDC was supported by substantial evidence. For example, T.K. suffers from a seizure disorder. Although it is presently under control, she experienced two unexpected seizures in February, 2010. At WDC, T.K. would be cared for by the medical director, Dr. Norberto Alvarez, a renowned neurologist specializing in seizures. While T.K.'s medical needs are reviewed monthly at FDC, at WDC, a larger clinical team with more specialists would review her needs twice as often.
According to the guardians, the services and supports planned for T.K. at WDC posttransfer described in the magistrate's findings of fact are not included in any written DDS document. The guardians' contention (apparently derived from a misconstrued interpretation of a DDS pleading in a separate action) that DDS does not consider itself bound to provide T.K. with a written document lacks evidentiary support in this record.
Even if DDS harbored such nefarious intentions, the guardians are protected by DDS regulations governing the implementation and modification of an Individual Support Plan (ISP).
While awaiting the magistrate's decision, after the administrative hearing had closed, the guardians filed that separate proceeding, seeking a preliminary injunction prohibiting DDS from transferring T.K. from her residence at the Greene building at FDC to cottage 9 on the FDC campus. At the time, T.K. was the only resident of Greene, which can accommodate up to 108 residents. A Superior Court judge denied the guardians' request. The magistrate herein did not consider the posthearing transfer of T.K. to cottage 9 in his decision. No issue regarding the intrafacility transfer is before us in this limited c. 30A review. See 115 Code Mass. Regs. § 6.63(1)(a) (2009).
See 115 Code Mass. Regs. § 6.31(8)-(9) (2009) (giving guardians the rights to appeal, among other issues, DDS's failure to follow required procedures in modifying an ISP and any improper ISP implementation by DDS). The Superior Court judge properly interpreted this regulation to provide the guardians with broad appellate rights to challenge any unilateral changes in programs and supports, even those that may not be specifically listed as goals and strategies in T.K.'s ISP.
Within thirty days of T.K.'s transfer to WDC, DDS is required to convene an ISP meeting and to create a new ISP. At that time and at any time thereafter, the guardians would have the opportunity to express their concerns about the adequacy of the services and supports being provided at WDC and if necessary, to challenge the content and the implementation of the ISP through these procedures.
The guardians correctly point out that as a Ricci class member, T.K. is entitled to certain lifelong rights. They claim that DDS was required to provide T.K. with “the least restrictive, most normal, appropriate residential environment,” and “that a person's “safety and well-being shall not be unreasonably jeopardized.”
Ricci v. Okin, 823 F.Supp. 984, 987–988 nn. 2 & 3 (D.Mass.1993) ( Ricci III ). See 115 Code Mass. Regs. §§ 6.05(2)(e) (2009). To the extent that the guardians claim that the proposed transfer to WDC violates the Ricci “least restrictive” mandate, not only did the guardians fail to raise this argument below, they also have failed to explain in their brief how the principle would apply in her case. We deem the argument waived. See Foxboro Harness, Inc. v. State Racing Commn., 42 Mass.App.Ct. 82, 85 (1997); Namundi v. Rocky's Ace Hardware, LLC, 81 Mass.App.Ct. 665, 673 n. 13 (2012). The guardians' argument about the violation of the “safety and well-being” mandate was based upon an improper truncating of an ISP regulation implementing the principle.
DDS regulations define “least restrictive” to mean “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). According to the guardians, T.K. functions at the level of a two to four month old child. Both at DALA and in the Superior Court, the guardians took the position that DDS would be hard-pressed to show an improvement in quality of life at WDC because of T.K.'s extreme limitations.
We do not address this claim further.
2 The full text of the relevant regulation states that the intellectually disabled individual should be given the “opportunity to undergo typical developmental experiences, even though such experiences may entail an element of risk; provided, however, that the person's safety and well-being will not be unreasonably jeopardized.” 115 Code Mass. Regs. § 6.20(3)(a)(5) (2009). (Now set forth at 115 Code Mass. Regs. § 6.20[2] [a][6].)
The guardians' challenges to a number of the magistrate's subsidiary findings lack merit. First, they claim that the bedroom in the Merrill Hall apartment, which has floor to ceiling walls, will pose a safety hazard to T.K., and thus will be inadequate to meet T.K.'s needs.
The magistrate considered this concern and but did not find it significant enough to preclude the transfer. This conclusion was supported by substantial evidence.
The bedrooms in the Greene Building at FDC are wide open, allowing for easy monitoring of the residents by staff. As a result of dysphagia, an esophageal web, and reflux disease, T.K. is at risk for choking and requires regular monitoring.
Suzanne Kingston, the DDS Director of residential services at FDC who has known T.K. since the 1970s and who opined that the move was in her best interests, testified that with a little more monitoring, the bedroom would be appropriate for T.K. Janet Sullivan, an ITP Coordinator at FDC, testified that the direct care staff in the proposed apartment are very experienced in working with individuals who have similar physical and developmental needs as T.K ., including swallowing, positioning, and suctioning needs and feeding protocols. Joanne Cummings, a unit director at WDC, testified that the bedroom doors in the apartment are kept open at night and staff are required to check on each resident and to change them regularly.
Contrary to the guardians' assertions, there was testimony supporting the magistrate's finding that the proposed large single bedroom with its two closets would fit T.K.'s equipment and furniture. To the extent that the guardians claim that there was no evidence that the day bed she “frequently” used was to be transferred to WDC with T.K., there was no evidence of any frequent use in this administrative record. The sole reference in the transcript concerned T.K.'s use of the day bed in the living room area of her FDC residence as she recuperated from gallbladder surgery.
T.K.'s large mat table on the other hand was an important piece of equipment used several times a day. Although the evidence showed that her double mat table could not be accommodated at Merrill Hall, the evidence supported the finding that T.K. does not use the entire area of the double mat, which is designed for two individuals.
Moreover, the transfer plan called for the transfer of the double mat table to the Quinn Center for use by T.K. during her day program and the construction of a new single mat table to be placed in T.K.'s Merrill Hall apartment in order to give T.K. seven-day access. The haunting specter of curtailed exercise opportunities for this severely disabled woman is inconsistent with the evidence of record.
The transfer team concluded that in light of the way T.K. typically moved on the mat, the dimensions of a single mat more than met her needs.
The magistrate did not improperly base his decision upon the testimony of witnesses who did not know T.K. First, the testimony of Suzanne Kingston, who concededly knows T.K. well, played a prominent role in the magistrate's decision. Although the managers and administrators from FDC did not provide direct care services to T.K., their testimony was relevant to the transfer process and the transitional planning, matters in issue at the hearing. The managers and administrators from WDC, the proposed receiving facility, would not be expected to know T.K. at all. Their testimony was relevant to the range of services available at WDC, and was necessary, as was that of their FDC counterparts, to allow the magistrate to make a comparison of the facilities as required by the transfer statute. See G.L. c. 123B, § 3. If the guardians were bothered by the absence of testimony from direct care workers, they could have called them on their own.
The magistrate acted within his discretion in weighing the negative impact of WDC's geographical location upon T.K. and her family. Addressing the guardians' objection to the distance of WDC from their home, the magistrate specifically recognized that as a result of the longer commuting distance, T.K. was likely to receive fewer visits from her family. He reasoned, however, that the lengthier travel time was inevitable in connection with any transfer out of FDC, which is close to the guardians' home. He also noted that the guardians had rejected a placement at the Hogan Regional Center, the only other intermediate care facility operated by DDS located closer to their home. He permissibly concluded that this objection, though legitimate, was secondary to ensuring that T.K.'s medical needs were adequately addressed. None of the DALA decisions disallowing transfers cited by the guardians turned on the negative impact of decreased family visits.
The magistrate recognized the importance of familiar staff to T.K .'s well-being. He properly could have concluded that while the guardians' concern about staff changes was “real and reasonable,” it was “a bit misplaced.” Substantial evidence supporting that conclusion included testimony that recently, only one familiar direct care worker remained on first shift at FDC; the Greene Building had a high turnover rate because of the lifting requirements; and that new staff had been successfully trained in T.K.'s feeding protocol in approximately one and one-half weeks. There was also testimony that the better staffing ratio at FDC was due in part to the artificial inflation caused by the reduction of clients at Greene. Finally, as the magistrate noted, given the impending closure of FDC, the loss of familiar staff is inevitable.
Although the guardians do not challenge the magistrate's finding that WDC would provide T.K. with more recreational and social opportunities, they claim that T.K. does not have the capacity to notice any difference. As the magistrate noted, T.K.'s mother, when pressed, admitted that T.K. does in fact have an awareness of her surroundings. There was ample evidence that T.K. enjoyed fresh air, wind on her face, music, van rides, and the splashing of water in the pool. The magistrate permissibly found that T.K.'s greater access to these simple pleasures at WDC represented a benefit and an improvement in her quality of life.
To the extent that the guardians challenge DDS's transfer plan, the written individual transition plan (ITP), which they refer to as a “superficial check-list,” does not stand alone. The magistrate's finding that the transitional planning was adequate was supported by significant documentary evidence compiled and shared in anticipation of the transfer, including the health transfer plan and the individual assessments of T.K. by each discipline describing essentially all major aspects of T.K.'s life and her needs. The finding was also supported by the testimonial evidence concerning the dialogue between the respective facilities, and the educational presentation by the FDC staff to the receiving team at the ITP meeting. Before any transfer takes place, experienced occupational therapists aided by the safe swallowing/feeding manual will train WDC's direct care staff in T.K.'s feeding protocol. There was evidence that the transfer team had scheduled transitional visits in a number considered sufficient and that if advisable, more visits and training can be added to facilitate a smooth and safe transition.
The judgment of the Superior Court affirming DALA's transfer decision is affirmed.
So ordered.