Opinion
Nos. 12–P–1656 12–P–1747.
2013-09-12
RANDALL R. v. DEPARTMENT OF DEVELOPMENTAL SERVICES & another (and a companion case ).
By the Court (VUONO, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
These appeals involve the involuntary, interfacility transfers of Randall R. and Ronald R., identical twin brothers who have resided at the Fernald Developmental Center (FDC), an Intermediate Care Facility (ICF) for persons who are intellectually disabled, for over fifty years.
The Department of Developmental Services (DDS) seeks to transfer the brothers from Cottage 8 at FDC to Heffron Hall B, Apartment 4, at the Wrentham Developmental Center (WDC), another ICF.
Randall and Ronald are blind, profoundly intellectually disabled, and mentally ill; they also suffer from several serious medical conditions, including cerebral palsy and seizure disorders. Ronald functions at a higher level than his brother.
Following separate two-day hearings, the same administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfers. See G.L. c. 123B, § 3. The same judge of the Superior Court affirmed DALA's decisions. We affirm. 1. Standard of review. We start by observing that these are G.L. c. 30A appeals. In order to prevail, the guardians were required to show possible prejudice to substantial rights sustained as a result of one of the criteria set forth in G.L. c. 30A, § 14(7). Applying the appropriate standard of review, we address the guardians' arguments.
FDC is closing. See M.D. v. Department of Developmental Servs., 83 Mass.App.Ct. 463, 464 n. 4 (2013) ( M.D.).
No improper factors infiltrated the decision-making of the magistrate or the judge. Even if an “effort to reduce expenses” would not be an appropriate factor in evaluating the propriety of the proposed individual transfers, there is no evidence that the magistrate or the Superior Court judge considered the cost of keeping FDC open in their best interest analyses. At worst, the Superior Court judge referred to cost-cutting as one of the reasons for the legislative decision to consolidate and to close some of the State's ICFs. There was nothing improper in providing this accurate historical background.
Moreover, there was nothing improper in recognizing the reality of the situation. It is beyond dispute that DDS has the right to close FDC.
See Ricci v. Patrick, 544 F.3d 8, 19 (1st Cir.2008), cert. denied, 556 U.S. 1166 (2009) ( Ricci V ). As Ricci class members with special eligibility for services, see 115 Code Mass Regs. § 6.05 (2009), Randall and Ronald are entitled to a lifetime of supports from DDS without regard to “the availability of resources.” 115 Code Mass. Regs. § 6.07(1)(a) (2009). Their guardians, however, cannot dictate where those supports are provided. Ricci V, supra. The twins cannot stay at FDC indefinitely. Nothing about the twins' special eligibility or their right to placement in the least restrictive environment prohibited DDS from selecting placements for them from the vacancies available at any given time.
In both decisions, the magistrate properly noted in passing that the closing of the transferring facility was not within the original contemplation of G.L. c. 123B, § 3.
No later than the date of the decision by the United States Court of Appeals for the First Circuit in Ricci V (October 1, 2008), the guardians knew or should have known that FDC would be closing as an ICF. Reductions in force—a recurrent complaint in the guardians' briefs—were a necessary corollary of the legal decision to wind down and to close FDC.
2. Substantial evidence claim: Randall's case. The subsidiary findings challenged by the guardians in Randall's case are supported by substantial evidence. First, even assuming that the increased number of direct orientation and mobility sessions Randall would receive at WDC would not represent an improvement, the magistrate's finding was based on more than just the number of sessions. As the magistrate found, Kathleen Kenney, the orientation and mobility specialist at WDC, will be able to monitor Randall's progress more frequently while working with other Heffron Hall residents and if a problem with staff performance or environment is noted, Kenney will be able to provide on-the-spot training and to implement corrective measures and changes more quickly.
Contrary to the guardians' assertion, the magistrate could properly have inferred that the increased opportunities for exercise at WDC would be an improvement (described as a “slight” one). WDC offers a wider range of recreational activities and is better staffed. Spending time in the pool is an activity Randall never refuses; he spends up to an hour at a time with ankle weights in the FDC pool. At WDC, he could continue to use a pool to work on the exercise objective in his individual support plan (ISP) assisted by the larger recreational therapy staff (at FDC, his access was limited at times due to staff reductions).
Moreover, in consultation with the adaptive physical education staff, the recreation therapists at WDC can assess Randall's interests in order to test whether his exercise objective of 600 minutes per month could be met through enjoyable activities other than walking, such as the exercise stations installed in the pool (a feature not available at the FDC pool). There is no adaptive physical education program at FDC.
As the magistrate found, exercise for Randall is considered an important ISP objective by the guardians. In fact, the issue of the frequency of Randall's opportunities to walk and to use the pool was the subject of many ISP appeals. The question whether an ISP is being properly implemented is subject to appeal at any time through the regulations. See 115 Code Mass. Regs. § 6.31(9) (2009).
The magistrate's finding that “[c]raniosacral therapy would be offered to Randall to improve his upper body movement and possibly reduce his agitation” was supported by the testimony of Dorothy Rother, the clinical coordinator of habilitative services at WDC. Rother, one of many at WDC trained in this therapy, testified that after reading Randall's assessments and ISP, she would like to try the therapy, which she described as a relaxation technique that incorporates myofascial release, upon Randall. The magistrate's inference that this service along with a wider range of other habilitative services provided by the better-staffed WDC department would likely enhance Randall's quality of life was permissible. The guardians' challenge to the scientific basis of craniosacral therapy is based upon facts not of record and was not raised below. It is not properly before us. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983).
The magistrate found here that the handicap-accessible Heffron Hall apartment, although located on the second floor, met the intent of Randall's ISP. That finding was supported by substantial evidence .
Randall's ISP requires residence in a “one-level building.” The magistrate was persuaded by testimony that a handicap-accessible residence with an elevator where Randall did not have to use the stairs would meet this requirement. Ronald's ISP similarly requires residence in a building where he does not have to climb stairs. There was unrebutted testimony that the ISP team clinicians signed off on the second-floor placement for the twins. The physical therapy assessment referenced by the guardians in their brief recommended, but did not require, a first-floor residence for Ronald.
After considering the guardians' concerns, the magistrate did find in each case that the living conditions of Apartment 4 would not be an improvement.
That conclusion standing alone did not preclude transfer. It was one factor of many to consider in the best interest calculus. While the magistrate understandably called the Heffron Hall environment “less than ideal,” she stopped short of stating that it was inappropriate. The magistrate was persuaded by testimony that what mattered more than the size of the apartment was the quality of the sighted guidance from staff allowing navigation within that space.
Apartment 4 has smaller square footage, narrower halls, fewer means of egress, and fewer bathrooms for more residents. If the elevator were disabled and the building needed to be evacuated, or, in the event of a fire, Randall would need to be carried out. The apartment also has a large column in the living room area. As the magistrate noted, padding or blocking off the column would be required to protect some apartment residents, while other residents would potentially find the column helpful as a landmark in orientation. The magistrate recognized that the column will pose a safety hazard for the twins; and although the orientation and mobility teams had conferred about the column, the status of remedial measures, if any, taken with respect to the column was unclear. The magistrate noted that the question of the twins' particular needs with respect to the column should be addressed before they moved. We concur in that conclusion. Our conclusion that the finding of the magistrate has the support of substantial evidence rests upon the assumption that WDC staff will take one of the safety measures (blocking off or padding) to protect the twins against any danger caused by the column.
On that point, she found that the twins would both receive better orientation and mobility services at WDC (Ronald to a lesser degree). There were also some positive features of the apartment that entered into her decision, including the ability of Ronald to attend his day program in the lower level (a plus in inclement weather), the size of the bedrooms (which exceed Federal regulatory minimum requirements for an ICF), and the fact that the space was set up to accommodate blind individuals. Ultimately, applying the statutory standard, she concluded that the negative factors regarding the setting were outweighed by the other benefits of transfer, including the improvements in medical, mental health, and nursing services, and the increased opportunities offered through WDC's habilitative services. See G.L. c. 123B, § 3.
Both Reed and Kenney opined that the space would not be an issue. Crediting the testimony of Ilse Peter, the DDS Director of Quality Enhancement, regarding how Randall actually uses his space, the magistrate found that Randall usually sits in his chair during his free time at Cottage 8.
Finally, as the finder of fact, the magistrate was entitled to give little or no weight to the court monitor's report submitted as an exhibit in these proceedings.
See Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674 (2010).
In his March 6, 2007, court monitor's report to the Federal court, United States Attorney Michael Sullivan opined that some residents of FDC should be allowed to stay at FDC since any other placement would not meet an equal or better service outcome. Sullivan recommended the implementation of a development plan that would enable FDC to remain open as an ICF. United States District Court Judge Joseph Tauro agreed with Sullivan's conclusion and recommendation, ordering the Department of Mental Retardation (the predecessor agency to DDS) to allow guardians to list FDC as a future placement choice. See Ricci v. Okin, 499 F.Supp.2d 89, 90–92 (D.Mass.2007) ( Ricci IV ). The twins' sister and coguardian, Diane Booher, was deputized as a class representative in these proceedings. The First Circuit subsequently vacated that order and dismissed the proceedings for lack of jurisdiction. See Ricci V, 544 F.3d at 11–12.
Applying the statutory standard to Randall's case, the magistrate carefully compared the offerings of the respective facilities in light of Randall's specific needs and interests. Her conclusion that Randall would benefit from the transfer was supported in large part by the testimony from several clinicians who provide regular services to Randall.
As required by the statute, the magistrate considered the many objections of the guardians, finding that although some were valid, none warranted the denial of the proposed transfer. The magistrate permissibly concluded that, on balance, overall the factors weighed in favor of WDC; likewise, the magistrate permissibly concluded that the lack of improvements with respect to some features (e.g., physical environment and familiar staff) did not preclude the transfer. The magistrate's ultimate findings that the proposed transfer to WDC would result in improved services and would be in Randall's best interest was supported by substantial evidence.
For example, Michelle Reed, who provides direct and supervisory orientation and mobility services to Randall at FDC, testified that Randall would benefit from the additional support sessions he could receive at WDC. Anthony Gabriesheski, the sole remaining psychology staff member at FDC who manages the twins' behavioral plans, testified that Randall's psychological needs would be better served at WDC because, among other reasons (1) Dr. Norberto Alvarez, a neurologist specializing in seizure disorders, would be available to give input on medication issues to Randall's mental health care team; (2) Dr. Edwin Mikkelsen, a psychiatrist, would attend every team review; (3) a licensed supervising psychologist would be very accessible on-site at WDC for consultations; and (4) psychologists make rounds to the residences at WDC to observe their clients and talk to staff. Gabriesheski is scheduled to provide services to the twins at WDC. The magistrate found that the twins would benefit from the continuity of care with respect to their mental health needs.
3. Substantial evidence claim: Ronald's case. The magistrate employed much of the same analysis in Ronald's case, which she decided after approving Randall's transfer. Although she concluded that improvements awaited Ronald at WDC, she called them “relatively minor,”
and indicated that standing alone, they may well have been insufficient. Based on our review of the evidence, we agree with the magistrate that Ronald's case presented a closer call.
See, for example, the location of Ronald's day program in the lower level of Heffron Hall pointed out in the general discussion of Heffron Hall, supra.
The twins' ISPs can be implemented both at FDC and WDC. Much of the evidence showed that Ronald will receive equal services at WDC, which does not meet the statutory transfer standard. Although WDC is better staffed and offers a wider variety of services, as the magistrate noted, there is no guarantee that they will benefit the twins. In her analysis, she frankly recognized the downside of the move, including the increased waiting time for the bathrooms, the likely difficulty the twins will experience orienting to the new space, and for Ronald, the possible loss of his ability to navigate independently, at least temporarily. However, the magistrate found that the one factor that tipped the scale in favor of a transfer was the importance of keeping the twins together; she called any potential separation not in the best interest of either and “cruel.”
Not only was this finding supported by substantial evidence, it was an appropriate and important factor in considering the totality of the circumstances.
Consistent with the evidence, the magistrate found that the brothers take comfort from each other and that on at least one occasion, Ronald acted as if to take care of his brother. Diane Booher testified that she definitely wanted to maintain the familiarity they gained from sharing the same bedroom. In their objection letters, the guardians referred to the companionship shared by the twins as “an essential part of [each other's] daily routine and quality of life”; and recounted how Ronald cried when separated from his brother for one night. In their statements of the proposed issues submitted to DALA, the guardians called the sharing of a bedroom by the brothers a “crucial” need.
The decision approving the transfer of Ronald to WDC as in his best interest was supported by substantial evidence.
After considering the evidence offered by the guardians regarding transfer trauma, and weighing its relevance and credibility, the magistrate was entitled to find it inadequate to support the conclusion that the twins will suffer injury, illness, or death as a result of transfer. See Duggan v. Board of Registration in Nursing, 456 Mass. at 674.
4. Procedural claims. The guardians failed to show any reversible error arising from any aspect of the placement and transitional process. The record established that a number of placements were offered to the guardians. All were rejected by the guardians, who made it clear that they were not interested in moving Randall and Ronald out of FDC. The evidence showed that the ISP team made the recommendation to transfer Randall and Ronald to Heffron Hall B, Apartment 4, while the administrators coordinated and oversaw the process.
We find nothing inherently wrong in the role of the administrators in this process, which freed up valuable time for the clinicians to spend with their clients. DDS was operating under an executive and legislative mandate to close FDC. The complained-of process of choosing placements for the twins through their ISP team was necessitated by the guardians' categorical objection to moving the twins out of a facility DDS needed to close. See Ricci V, 544 F.3d at 17–19 & n. 8.
The magistrate found that the ISP team selected an ICF based on the perceived preferences of the guardians. According to Gabriesheski, Randall's ISP team decided that community placement, which the guardians opposed, would not be optimal; and that while both Hogan Regional Center and WDC (the only two ICFs to remain open) were considered, the ISP team preferred WDC. Christine Oliveira, the Individual Transition Plan (ITP) Placement Coordinator at FDC, testified that after all vacancies at WDC and Hogan were viewed by members of the ISP team, none was considered appropriate for the twins except Heffron Hall (the only placement that would allow Randall to continue to share a bedroom with his twin brother and to live with his former housemates from Cottage 8 at FDC). The ISP clinicians felt strongly that keeping the original residents of Cottage 8 together (all of whom were blind) would benefit them. Based on this evidence, the magistrate found that DDS selected Apartment 4 because the twins would be able to live with people they know from Cottage 8.
To the extent the guardians complain about the lack of any written record of the planning process, suffice it to say that DDS had no obligation to make one. There are no regulations governing this internal planning process, and the guardians have directed us to no authority requiring DDS to promulgate regulations to address this topic.
Nor was DDS required to involve the guardians in all of these communications at this early stage of the process. See M.D. v. Department of Developmental Servs., 83 Mass.App.Ct. 463, 476 (2013) ( M.D.). Since the guardians had consistently informed DDS that they were not interested in any placement other than FDC, it is unclear how they were harmed by not being included in these discussions about Hogan Developmental Center and WDC.
According to Diane Booher, Ricci IV (see note 12, supra ) was instituted because of the “illegal” transfer process introduced at FDC, including the “extra-regulatory individual transition planning team.” After a thirteen-month investigation into the transfer of forty-nine FDC residents between 2003 and 2006, the court monitor concluded that DMR had fully complied with all relevant Federal and State laws and orders of the court, a finding accepted by the United States District Court judge. See Ricci V, 544 F.3d at 16, 18. The First Circuit rejected the guardians' arguments regarding the inadequate transfer process and the denial of “meaningful participation” in the transfer process. See id. at 21.
In any event, once the ISP team placement recommendation was made, DDS's duties and the guardians' rights under the formal ISP regulations were triggered. See 115 Code Mass. Regs. § 6.25 (2009). At the ITP/ISP modification meetings, the guardians had the right to bring counsel, to delve into alternative placements and risks to Randall and Ronald considered by the ISP team, to question all aspects of the process and the placement recommendations, and to participate fully in the transitional planning. The guardians exercised that right here.
The evidence showed that the guardians here participated at the ITP/ISP modification meetings at which the draft ITPs were discussed and the schedules of visits adopted; and contrary to the guardians' assertions, the changes proposed by the guardians were incorporated into the final transfer documents. So far as appears, the guardians raised no objections to the number of scheduled visits in the ITPs.
We agree with the magistrate and the judge that DDS had the right to create a written ITP to facilitate the transfer of each resident. The ITP provides valuable personal information about the resident's routines, relationships, needs, likes, and dislikes to the receiving team. The ITP's schedule of visits established with the input of the guardians helps to ease the transition of the resident. The ITP's inservice training schedule ensures the training of new staff by those most familiar with the resident. In short, the development of an ITP is consistent with DDS's statutory and regulatory duties to safeguard the proper implementation of ISPs and the continuity of services.
Because no one can predict how an individual resident will react to the transfer, the provisions of an ITP cannot be set in stone.
As the magistrate found, the transitional process is flexible, and the ITP may be changed during the plan's implementation based upon the responses of the resident, the clinical team's recommendations, and the input of the guardians. Having perceived several issues in the transitional plan here, such as inadequate pretransfer visits to WDC for Randall, the magistrate offered suggestions about how the ITP should be amended to benefit the twins; she also instructed DDS to address the column issue, see note 10, supra. Notwithstanding these concerns, the magistrate, in accordance with her statutory mandate, concluded that overall, the transfers were in the twins' best interests. See G.L. c. 123B, § 3. As the judge pointed out, the magistrate did not condition the transfers upon DDS's implementation of the proposed changes to the ITP. Thus, the magistrate's suggestions and direction about the ITP did not provide any basis for reversal.
No changes to the ITP may be needed. On the other hand, many different types of time-sensitive changes may be needed, including the addition of more transitional visits to the schedule of visits, the cancellation of visits, the extension of visitation hours, and the addition of more training. During the transitional process, the ITP coordinators and the clinicians from both facilities would be in contact daily to assess the progress and to make day-to-day adjustments. The ITP team monitors the transition until the required thirty-day ISP meeting at the receiving facility.
A separate ITP/ISP meeting was held for each twin on the same day. The service coordinator is also known as the human services coordinator and the Qualified Mental Retardation Professional (QMRP or Q). As permitted by 115 Code Mass. Regs. § 6.25(3)(c), Rick Tulipano, the service coordinator, initiated the requests for ISP modification, seeking to change the twins' residence to WDC. After the ITP/ISP modification meetings, the Facility Director's designee timely approved the recommended modifications. See 115 Code Mass. Regs. § 6.25(7). This was the final agency decision. Tulipano will continue in this role for the twins at WDC.
In this case, Diane Enochs, the Assistant Commissioner for Facilities Management, a senior DDS administrator, provided the notice for the ITP/ISP modification meeting. We fail to see how the guardians were prejudiced by the fact that they received notice from Enochs as opposed to Tulipano.
Several ISP team members, including Tulipano, attended and participated in the meetings. The guardians neither expressed any willingness to seek alternative placements outside of FDC nor requested that additional ITP/ISP modification meetings be held. If the guardians were dissatisfied with DDS's inadequate witness lists, they could have called any missing witnesses to testify before DALA.
In Ronald's case, Diane Booher testified that Tulipano was disciplined by DDS for giving testimony on the guardians' behalf during the course of an ISP appeal; and that when he came back from a three-month leave, he did not remember his testimony. Tulipano did not testify at DALA. Although the magistrate credited much of Booher's testimony, as permitted as the fact finder, she chose not to credit this hearsay.
We also conclude that DDS's May 24, 2010, statutory notices and requests for consent to transfer the twins complied with G.L. c. 123B, § 3, and 115 Code Mass. Regs. § 6.63(2)(c)(1) (2009). Although the letters contained some of the same boilerplate found in other statutory notices sent out around this time, they also contained some details tailored to the twins' individual circumstances. Where, as here, the notices also provided important contact information and invited the guardians to visit WDC and to discuss the advantages and disadvantages of a move with WDC staff, nothing more was required. From the tone and content of the guardians' objection letters, it may be fairly inferred that no amount of detail would have convinced them to consent to the transfers.
For example, in their objection letter opposing Randall's transfer, the guardians stated, as relevant on this point, that where all of Randall's needs are being met at FDC, “[i]t is impossible for the Department to provide improved services and quality of life at [WDC]”; and that the involuntary transfer to WDC “poses serious possible risk to Randall, including premature death....”
Moreover, even if DDS employees were unable to answer some of the guardians' questions during their visit to WDC, the guardians acknowledged that they never followed up with questions regarding any alleged lack of information.
The guardians also had the benefit of discovery responses during the administrative proceedings, including (1) answers from DDS regarding how the transfers would result in improved services, supports, and quality of life for Randall and Ronald, and (2) lists of all clinical and direct care staff who may provide care to Randall and to Ronald at WDC. Based in part on the detailed statements of the issues to be adjudicated proposed by the parties, the magistrate found that the guardians were adequately informed ahead of time of the nature of DDS's case at the hearings. In short, even if the notices had been defective, which they were not, the guardians suffered no prejudice to their substantial rights. See Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass.App.Ct. 267, 287 n. 28 (2007).
During the forty-five day statutory period, Nicholas D'Aluisio, WDC's Facility Director, gave the guardians a tour of the two Heffron Hall buildings, which were still under renovation at the time. He showed them two apartments, one on the first floor and one on the second (which he identified as the one slated for the twins).
5. Other claims. (a) Least restrictive environment. The guardians' argument regarding the twins' right to a placement in the least restrictive environment was not developed below or addressed by the magistrate or by the judge. Even assuming that the issue is properly here, we conclude that the guardians have misapplied the concept in the transfer context. The right to live in the least restrictive and most typical environment requires DDS to place an intellectually disabled resident in the community if clinically appropriate and desired. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607 (1999). See also M.D., 83 Mass.App.Ct. at 466–467. Because the guardians insisted upon placement in an ICF here (and the ISP team recommended ICF placement), that principle was not implicated in this case.
Even if the principle required the magistrate to consider the impact of a particular proposed residence upon the individual's independence, we see no violation of the twins' rights here.
The fact that WDC has a much larger census “compet[ing] for space, services, and support” than FDC does not make it a more restrictive environment, especially in light of the significantly higher number of employees, programs, and activities available at WDC.
Under DDS regulations, “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).
(b) Possible alternative placement. The guardians' claim that the magistrate erred by failing to consider possible alternative placements to Heffron Hall B, Apartment 4 for Randall and Ronald was not raised at either DALA or in the Superior Court. In fact, stemming as it did from a decision of a different Superior Court judge executed two days before the judge signed his decisions in the twins' cases, the issue could not have been raised. The alternative placements issue may not be raised for the first time here. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983). Were we to reach the issue, we would conclude that the transfer statute does not impose any such requirement on the magistrate. See G.L. c. 123B, § 3; M.D., supra at 473.
(c) Federal law claims. Finally, we agree with the magistrate and the judge that the guardians' Federal law claims were beyond the scope of a transfer proceeding under G.L. c. 123B, § 3.
The guardians claim that the proposed placement violated Randall's rights under 42 U.S.C. § 12132 (2006), the nondiscrimination provision of the Americans with Disabilities Act. They also allege that DDS failed to comply with certain Medicaid regulations that ICFs must meet as a condition of Federal funding. The guardians did not address the merits of these claims in their brief. If they had, we would be in agreement with the magistrate that the Federal regulations are not enforceable in a transfer proceeding.
Conclusion. We are aware of the strong commitment that both guardians have to protecting the well-being of Ronald and Randall. We recognize that the transfer of the twins will be an adjustment for the twins and for the guardians. We conclude, however, that the magistrate followed her statutory mandate and that the transfers are in the twins' best interests.
Judgments affirmed.