The Femald Developmental Center (FDC) will be closing as an Intermediate Care Facility for Persons with Mental Retardation (ICF). This policy decision removing a group of intellectually disabled individuals from that facility is no longer subject to review by the Federal courts.
Born in 1943, M.D. is moderately intellectually disabled and suffers from severe mental illness. She is one of the last fourteen
This case involves the procedural schemes and safeguards associated with the transfer statute. For the reasons that follow, we hold that (1) the magistrate appropriately declined to consider Federal law issues beyond the scope of an appeal from a transfer decision; (2) the certification requirement set forth in Ricci v. Okin,
The administrative magistrate of DALA, an independent adjudicatory agency, properly read G. L. c. 123B, § 3, narrowly to limit his authority to determine whether the proposed transfer shоuld proceed as in the best interest of M.D. See Box Pond Assn. v. Energy Facilities Siting Bd.,
On appeal, M.D.’s guardians (her brother, Albert, and her sister-in-law, Regina Davidson) disclaimed any intention to raise a claim for relief under the ADA. Rather, they maintain that what they seek is compliance by DDS with the ADA as “a necessary condition to any action it may undertake.” Even assuming DALA had jurisdiction to consider compliance issues, the guardians’ amorphous Federal law claims lack merit.
First, the guardians seem to attempt to bring a claim under the United States Supreme Court case of Olmstead v. L.C. ex rel. Zimring,
Here, the guardians twist Olmstead to stand for the proposition that M.D. can reject any undesired transfer. That interpretation is not correct. In Olmstead, the Court recognized that nothing in the ADA required the transfer of certain intellectually disabled individuals from an institution to a less protective community placement when it would be inappropriate. Id. at 601. The Court emphasized that no principle of Federal law required involuntary transfers out of institutions into the community. See id. at 601-602. Here, DDS is not attempting to send M.D. into the community or to keep her in an ICF against the wishes of her guardians. In short, the holding of the case has no real application to interinstitutional transfers.
Second, relying on the “least restrictive” setting language of Olmstead, see id. at 599, the guardians argue that DDS is violating the ADA by denying M.D. the opportunity to live in an “appropriate” home
Certification requirement. Next, we consider whether DDS failed to comply with the certification requirement of the Ricci III disengagement order. In the G. L. c. 30A appeal, DDS, pressing a plain language construction of the order, argued that the certification requirement
In its 2008 decision, the First Circuit chose to treat the terms of the parties’ 1993 final consent decree (adopted in the disengagement order) as a contract involving questions of law that the court reviews de nova. See Ricci V, supra at 17-18. Following suit here, we conclude, as did the Superior Court judge, that the unambiguous language of the order does not cover this type of interinstitutional transfer.
In any event, even if a certification was required and DDS’s certification here was inadequate, we discern no prejudice at this point. In short, based upon our review of the entire administrative record, the magistrate’s decision that the transfer to WDC would result in improved services and quality of life for M.D., and thus be in her best interest, was supported by substantial evidence. See G. L. c. 123B, § 3. See also the discussion of substantial evidence, infra. Predating the disengagement order, the State standard applied by the magistrate was more stringent than the “equal or better” standard required by the disengagement order.
The guardians claim that the lack of a certification by facility director Linda Montminy prejudiced their ability to question the “decision-maker” as to the reasons for the transfer. However, before the hearing in M.D.’s case, the identities of the decision-makers and the reasons for the transfer were disclosed to them. In its prehearing answers to interrogatories signed by Montminy, DDS indicated that M.D.’s ISP team made the recommеndation based on a number of factors, including the guardians’ preference for ICF-level services. The answers revealed other details regarding the transfer process and the parties involved in it.
Transfer notice. Next we address whether the May 28, 2010, statutory transfer notice was defective and, if so, in the words of c. 30A, whether the agency decision was made upon unlawful procedure potentially prejudicing substantial rights. See G. L. c. 30A, § 14(7)(d).
General Laws c. 123B, § 3, requires several informational elements to be included in the request for consent, including, as herein relevant, a statement about “how the proposed residential transfer from the current facility to the proposed residential facility will result in improved services and quality of life for the intellectually disabled ward.”
Here, DBS made no attempt within the four corners of the notice to list or to describe the ways in which M.B.’s services and quality of life would improve at WBC. BBS enclosed a number of attachments with the letter, including M.B.’s most recent June 16, 2009, ISP (including revisions from a September 22, 2009, meeting) and the May 19, 2010, ITP. However, while these documents provided a wealth of information abоut M.B. and her current needs and supports, none provided any factual basis from which a finding of improvement could be made.
Even though the notice was defective, in the context of a G. L. c. 30A appeal, the guardians were still required to show that their substantial rights may have been prejudiced.
Here, in fulfilling their statutory duty, the guardians submitted a timely letter of objection stating their reasons for opposing any move out of FBC.
There was no evidence that as a result of the inadequate notice, the guardians’ ability to prepare their case was compromised. As a practical matter, the ITP attached to the notice identified as important contact persons available for consultation, аmong others, Jim Antonopoulos, the psychologist well-liked by all, who wrote M.D.’s behavioral plan and took her out to weekly dinner outings; and Wendy Smith, M.D.’s Q. Both transferred over to WDC around this time (a fact obviously known to the guardians). As even the guardians acknowledged in their brief, DDS provided verbal responses to the guardians’ questions during the forty-five-day statutory period.
We agree with the guardians that DDS should not be allowed to shift its statutory duty to gather information regarding the alleged improvements to them.
Substantial evidence to support the magistrate’s decision. The guardians claim that the magistrate’s decision was not supported by substantial evidence. Our review of the evidence is limited; DALA, not the court, resolves issues of conflicting evidence. See, e.g., Duggan v. Board of Registration in Nursing,
Here, the magistrate gave careful cоnsideration to the objections raised by the guardians and to the evidence presented by DDS. From the guardians’ perspective, the primary advantages of FDC are that it has been M.D.’s residence since 1985 and that it is closer to where the guardians reside. Additionally, M.D. enjoys the interactions that are possible at the FDC swimming pool
The magistrate also carefully cоnsidered the clear advantages of WDC, which included superior medical and clinical services; increased work, social, and recreational opportunities; and the presence of many staff and residents who have already made
“A point-by-point comparison of the two facilities may reveal some features favoring one facility, while the remaining features favor the other facility. But the statute does not require that every feature of a proposed facility be superior in order to approve a transfer. Rаthér, by focusing on the best interest of the ward, it commands that the whole picture be examined.”
The magistrate carefully considered the evidence presented. There was substantial evidence to support his determination.
Remaining issues. We next turn to the issue of the informal meetings that predated the ITP/ISP modification meeting. First, the guardians contend that the decision to transfer M.D. to WDC was made before the May 19, 2010, ITP/ISP modification meeting, without the involvement of the guardians or any consideration of M.D.’s needs. The record does not support their contention.
The evidence relating to this issue was as follows. After announcing in December, 2008, that FDC was expected to close at the end of fiscal year 2010, DDS gave the guardians several placement options (all available ones in fact): WDC; Hogan Regional Center (Hogan) (the only other ICF to remain open); a State-run or vendor-operated community-based setting (i.e., group homes); and (addressing the guardians’ geographic concerns) Malone Park, M.D.’s residence at FDC, which was to be converted into a State-run group home after Femald’s closure as an ICF.
The paper trail shows involvement by the guardians, who rejected every possible рlacement suggested by the ITP team and Diane Enochs. By letter dated February 8, 2009, the guardians, who live in Arlington, rejected WDC and Hogan as op
As noted above, see note 12, supra, Gale Conlеy testified that she worked with the clinical members of the ISP team to gather feedback on M.D.’s placement needs and on potential placements. To the extent that the guardians complain about this informal process, ultimately they were protected by the formal procedural rules governing ISP modifications, which require the holding of an ITP/ISP modification meeting once a specific placement is recommended.
The team placement recommendation seems to havе come about through a series of informal consultations. The guardians
At oral argument, M.D.’s counsel argued that the magistrate at the DALA hearing was required by G. L. c. 123B, § 3, to consider multiple alternative placements (and not just the one chosen by DDS).
However, assuming, without deciding the issue, it would appear that the notice section in par. 2 of G. L. c. 123B, § 3, should be read in conjunction with par. 3. That statutory languаge seems to set up a one-to-one comparison situation.
For the reasons stated above, the judgment of the Superior Court affirming the transfer decision in M.D.’s case is affirmed.
So ordered.
Notes
To promote compliance with Olmstead v. L.C. ex rel. Zimring,
ISP stands for “individual service plаn” under G. L. c. 123B, § 3, and “individual support plan” under 115 Code Mass. Regs. § 6.20(4) (2009); both are referred to interchangeably as “ISP.” See Molly A. v. Commissioner of the Dept. of Mental Retardation,
The regulations define “home” as “the house, apartment, or other place in which the individual lives in the community” (emphasis added). 115 Code Mass. Regs. § 7.02 (2009).
The same may be said of the guardians’ general challenge to the agency’s discretionary decisions relating to the closure of FDC and the allocation of its resources. See Ricci V, supra at 17-18 & n.8.
As a Ricci class member, see Ricci III, supra at 987 n.1, M.D. is entitled to all the protections afforded by the disengagement order, which closed the Federal reform litigation, returned authority to DDS to manage and oversee
A puzzling aspect of M.D.’s case is that the record established that a certification using the required language seems to have been made by DDS on June 23, 2010, as part of its “Ricci class member change of home address form.” That certification was signed by Diane Enochs, the former DDS assistant commissioner for facilities management (and facility director Linda Montminy’s boss). Neither party addressed that certification.
The guardians’ historical explanation for the absence of language covering facility-to-facility transfers falls flat. They claim that in 1993, no one was contemplating the closure of ICF facilities like FDC. That is incorrect. An earlier round of ICF consolidations and closures began in 1991. See Ricci v. Okin,
A transfer that results in equal services passes muster under Ricci, but does not meet the standard set forth in G. L. c. 123B, § 3.
At the hearing, Gale Conley, the FDC placement coordinator, testified that she worked with M.D.’s ISP team to gather information and to get feedback on potential placements and M.D.’s needs. According to Conley, the teаm looked at both Hogan Regional Center and WDC for M.D. The clinical team selected the particular apartment at Heffron Hall A for M.D. in part because she could live with her former housemate from FDC and be taken care of by thirty-nine former direct care workers from FDC, some familiar to M.D. In July, 2010, Conley became the unit director of WDC’s Heffron Halls.
The only proposed ISP modification submitted after the meeting for approval by facility director Montminy was the change in residence. To the extent any impropriety was suggested, Ilse Peter, Montminy’s designee, was permitted by DDS regulation to sign the ISP modification sheet approving the proposed transfer after the ITP/ISP modification meeting. See 115 Code Mass. Regs. § 6.25(7) (2009).
The relevant portion of the letter giving notice to the guardians stated: “Members of [M.D.’s] ISP team have selected the specific site at the Wrentham Developmental Center for [M.D.] and are confident that the staffing, services, and amenities available at Wrentham will meet all of [M.D.’s] ISP needs. Wrentham Developmental Center has a state-of-the-art acute care medical facility, workshops, a heated indoor Olympic size pool, a full size gymnasium, modem exercise equipment, and a full range of clinical services in the areas of medicine, nursing, psychology, recreation, social services, occupational and physical therapy, communication, adult education, vocational services, orientation and mobility services, and adaptive physical education. Although the Fernald Center is closing and will no longer be available as a residential option, Wrentham Developmental Center is a Tide XIX certified facility offering continuity of services and supports for [M.D.] and the proposed move to Wrentham will result in improved services, supports and quality of lifе for her.”
The guardians have waived their challenges to other alleged deficiencies in the notice. See 115 Code Mass. Regs. § 6.63(2)(c)(2), (4).
The guardians’ argument that no showing of prejudice is required was not persuasive. None of the cases they cite was pursued through a c. 30A appeal. The vast majority of cases require a showing of prejudice for a reversal. See, e.g., American Farm Lines v. Black Ball Freight Serv.,
Even at this early stage of the proceedings, the guardians were represented by legal counsel (a predecessor to counsel on appeal). Neither party pointed out that, contrary to the magistratе’s ruling, the guardians did in fact challenge the adequacy of the notice in their objection letter. Notwithstanding the objection, it was undisputed that the guardians made no request for additional time or information to weigh the merits of the proposed move to WDC. They also did not visit WDC until after the May 19, 2010, ITP/ISP modification meeting.
One of M.D.’s guardians, Regina Davidson, reiterated this sentiment at the end of the ITP/ISP modification meeting, stating she wanted M.D. to remain at FDC.
As the guardians pointed out, the failure to object during the forty-five-day statutory period is deemed consent to the proposed transfer. See 115 Code Mass. Regs. § 6.63(3)(b). In a case involving a defective DDS notice, a guardian presumably could avoid giving implied consent by raising a timely objection to the notice within the statutory period (as the guardians did here).
The guardians used the word “burden” to refer to DOS’s statutory duty to provide in its request for consent a statement of improvements in services and quality of life at WDC. See G. L. c. 123B, § 3, par. 2. There is no question that the magistrate correctly placed upon DDS the burden of proving the improvements. See G. L. c. 123B, § 3, par. 3.
Even assuming that DOS’s July 28, 2010, statutory request to DALA for an adjudicatory proceeding (attaching DOS’s inadequate transfer notice) failed to satisfy the specificity requirements of the Formal Rules of the Standard Adjudicatory Rules of Practice and Procedure, any defect, for the reasons set forth previously, was harmless. See 801 Code Mass. Regs. § 1.01(6)(c) (1998) (governing the form and content of claims; requiring the notice of claim to “state clearly and concisely the facts upon which the Party is relying as grounds . . .”).
Although the magistrate found that M.D. would miss her interactions with members of the local community at the FDC pool, a practice not allowed at WDC, he concluded that M.D. would have numerous opportunities for different types of community integration available at WDC such as оn-site dog shows and county fairs. Substantial evidence supported the magistrate’s findings, among others, on the subject of isolation, that WDC would provide wider and more frequent opportunities for recreational and social activities, and more opportunities for residents to take day and overnight off-site trips into the community.
On January 23, 2009, DDS specifically offered to place M.D. with a group of her peers at WDC. Most guardians of M.D.’s housemates liked the idea of keeping the group together and consented to the transfer to what turned out to be Heffron Halls. Due to the lack of guardian interest, the plan to keep Malone Park open as a group home was abandoned.
In contrast to the group home model, all clinics, services, and day programs at an ICF are provided on-site twenty-four hours per day, seven days of the week (24/7). The testimony, however, established that the group home model is changing; not only are the homes becoming specialized, they now offer some clinical services on-site 24/7.
In addition to the ITP/ISP modification meeting, M.D.’s ISP team met separately for her annual ISP meeting on or about June 15, 2010. At that meeting, the ISP team would have discussed the many elements of an ISP and develоped a new ISP to cover the following year.
Seventeen individuals attended M.D.’s ITP/ISP modification meeting, including Conley, Smith, and Antonopoulos, and were available for questioning.
The statute provides, in relevant part, “[DALA] shall be authorized to conduct said proceeding to determine whether the transfer should proceed. . . . The hearing officer shall determine which placement meets the best interest of the ward giving due consideration to the objections to the placement made by the relative or permanent guardian” (emphasis added).
In this second-level appeal, for the first time, the guardians seek to imposе a different burden of proof upon DDS, contending that DDS violated its own regulations and the disengagement order by failing to provide M.D. with “the least restrictive, most typical, appropriate residential environment, together with the most appropriate treatment, training and support services suited to that person’s individual needs.” 115 Code Mass. Regs. § 6.05(2)(e) (listing M.D.’s special eligibility entitlements as a Ricci class member). See Ricci III, supra at 987 n.2. Although M.D. possesses these rights, this argument was not presented at DALA or in the Superior Court and is deemed waived. See Albert v. Municipal Ct. of Boston,
Paragraph two of G. L. c. 123B, § 3, provides, in relevant part, “The request for consent shall include (1) a statement оf how the proposed residential
If DDS were required to present multiple alternative placements at the ITP/ISP modification meetings (and to bring in the necessary clinicians), that requirement would place an enormous burden upon DDS and would be highly inefficient. See, e.g., the testimony of Gale Conley regarding the scope of her premeeting work and interaction with one potential receiving facility. The guardians’ assertion in their postargument submission that WDC representatives were first involved in the transfer process at the ITP/ISP modification meetings did not comport with the evidence.