BEFORE THE by vivi07



In the Matter of: TYLER M. Claimant, vs. SOUTH CENTRAL LOS ANGELES REGIONAL CENTER, Service Agencu. OAH No. L 2005040723

DECISION This matter came on regularly for hearing before Mark T. Roohk, Administrative Law Judge, Office of Administrative Hearings, in Los Angeles, California on June 20 and July 8, 2005. Claimant Tyler M. was represented by his mother, Semerita L. Julie A. Ocheltree, Attorney at Law, represented the Service Agency, South Central Los Angeles Regional Center (SCLARC or Service Agency). Evidence was received, the matter argued, and the case submitted for decision on July 8, 2005.1 ISSUE Should SCLARC be required to fund the Aquatec Fortuna bath chair for Claimant?

This matter was originally consolidated for hearing with OAH Case No. L2005050267, which involved a separate fair hearing request by Claimant on another issue. Evidence relevant to both matters was submitted during the hearing on June 20, 2005. When the hearing reconvened on July 8, 2005, the parties were able to resolve the other issue. Accordingly, no reference to that other issue will be made in this decision.


FACTUAL FINDINGS 1. Claimant is 5 ½ years old, having been born on December 20, 1999. He is currently receiving services from SCLARC. His eligibility is based on multiple diagnoses, including Moderate Cerebral Palsy and Moderate Mental Retardation. (Exhibit D.) These services are currently being provided pursuant to the Lanterman Developmental Disabilities Services Act, Welfare & Institutions Code section 4400, et seq. (Lanterman Act). Claimant lives within SCLARC’s service area with his mother. 2. Claimant is also receiving services from a number of other sources. Among these services are a Columbia bath chair which was purchased by California Children Services (CCS), and 482 hours per month of LVN skilled nursing services. (Exhibits D & R.) 3. Claimant is non-ambulatory and has no ability to care for himself. This includes bathing, for which he requires total assistance. He does not sit independently, he does not roll over, and he does not reach or grasp. He is transported in a manual wheelchair, and requires regular attention because he has a tracheotomy that allows him to breathe and a feeding tube to allow him to receive nutriments. 4. Although Claimant receives the LVN services referenced above, his primary caregiver is his mother. Of particular relevance to the issue in this proceeding, she is the individual who bathes him. She does not have the nurses assist her in this due to A) size limitations in the bathroom, which permit only one individual to interact with Claimant; B) she does not trust them with this task for safety reasons; and C) she would rather have the nurses help her in other ways. 5. As Claimant gets older, he has been growing and getting heavier. This has made it more difficult for his mother to bathe him; his current Columbia bath chair requires his mother to lift him onto and out of the chair manually, which causes and/or aggravates back pain. Claimant’s mother also has greater physical limitations now because of her own illness, for which she is receiving ongoing treatment. Because of these issues, Claimant’s mother would like to obtain a different bath chair for him. 6. After doing some research and investigating different products, Claimant’s mother decided that the Aquatec Fortuna bath chair would be best suited for Claimant’s needs. This bath chair is larger than the Columbia model currently in use, and allows Claimant to be placed in the chair by means of a rotary slide device which permits him to be transferred directly from his wheelchair to the bath chair and back without anyone having to lift him. The bath chair can then be lowered into the tub and back up again by means of a hand control. (Exhibits S & 1.) 7. Claimant’s mother initially requested that CCS provide funding for a new bath chair. That request was denied on or about December 10, 2004. Among the reasons given for the denial was that the new chair was not “required to meet the medical needs of the client’s CCS eligible medical condition as prescribed, ordered or requested by a


CCS physician,” “the requested equipment duplicates or serves essentially the same purpose as existing equipment,” and the “patient needs to have hand function to operate the hand control independently and safely.” (Exhibit R.) The parties agree that all generic resources had been pursued and exhausted at that point. 8. Claimant’s mother then requested that SCLARC provide funding for the bath chair. SCLARC also denied the request, on essentially four grounds: 1) Claimant is unable to operate the hand controls of the chair due to a lack of necessary motor skills; 2) the chair is a duplication of a service already being provided; 3) the chair is not a medical necessity and is not required to meet the medical need of Claimant, but rather the convenience of Claimant’s mother; and 4) the chair is inappropriate for Claimant in that it was designed for an older or larger individual and would therefore not be safe for him. (Exhibit P.) 9. David Eckhous, Ph.D., an occupational therapy consultant employed by SCLARC, reviewed Claimant’s request and discussed it with Claimant’s mother. Dr. Eckhous also testified at the hearing. Dr. Eckhous opined that the Aquatec Fortuna was inappropriate for Claimant for several reasons. Most important of these is Claimant’s size in relation to the size of the chair. Dr. Eckhous noted that the Aquatec Fortuna was clearly designed for an older individual, such as a teenager or adult, and that because of this the dimensions of the seat are too deep for Claimant. The measurements on the chair indicate that the depth of the seat is 22 inches (Exhibit S), while Dr. Eckhous estimates that the length of Claimant’s femur bones in his legs is closer to 8 inches. Because of this, and because Claimant has limited body control, the chances are very strong that he would slide forward in the chair, creating a serious safety hazard. Further, because the chair would be wet from the bathwater, the chances of sliding and subsequent safety issues were further increased. Dr. Eckhous believes that the current Columbia chair remains more appropriate for Claimant. It should be noted that Dr. Eckhous has never been to Claimant’s home; visits have been scheduled, but one party or the other has failed to follow through on each occasion. Dr. Eckhous also opined that, based on his knowledge of LVN training, the nurses providing those services to Claimant are definitely qualified to bathe him, including lifting him in and out of the chair, and that, given the back pain and health issues Claimant’s mother has been experiencing, this might be the safest course of action at this point. 10. Claimant’s mother believes that the Columbia chair currently being used presents a greater danger to Claimant because it is too small for him, it requires her to lift him into and out of the chair, thereby increasing the risk of an accident, and that because the Columbia chair is a recliner its use also increases the risk of water getting into Claimant’s tracheotomy, which would cut off his breathing. 11. Claimant’s mother admits that no health care professional recommended or endorsed the chair to her. Instead, she submitted into evidence a videotape prepared by Aquatec, which according to her testimony described the chair as being appropriate even


for infants. (Exhibit 1.) The tape itself is essentially an infomercial lasting approximately seven minutes. The narrator does mention in the opening minute of the presentation that Aquatec products are appropriate for everyone “from infants to adults,” but does not specifically cite the Fortuna model as being for infants. In fact, despite the inclusion on the tape of several minutes depicting different individuals using Aquatec products, there is no demonstration of the Fortuna whatsoever, and the tape does not even include a mention of this model until the very end, where it is briefly shown and described as being “new for 1998,” implying that this tape is at least seven years old. There is no evidence on this tape that the Fortuna would be an appropriate bath chair for Claimant. 12. SCLARC did provide alternative suggestions to Claimant’s mother, including a “Multi-Lift” chair which would allow Claimant to be seated outside the bathtub and then placed in the tub with the chair by a mechanical arm. (Exhibit Z.) Claimant’s mother was not interested in this option. Despite this alternative, SCLARC’s position is that the Aquatec Fortuna is inappropriate and unsafe for Claimant, that his current chair is a better alternative, and that if Claimant’s mother needs assistance in bathing Claimant due to her physical limitations, she is already receiving an adequate amount of support in the form of the LVN services.

LEGAL CONCLUSIONS SCLARC is not required to fund the Aquatec Fortuna bath chair for Claimant. Welfare and Institutions Code section 4646, subdivision (a), provides in pertinent part that “it is the intent of the Legislature to ensure that the individual program plan and provision of services and supports by the regional center system is centered on the individual and the family of the individual with developmental disabilities and takes into account the needs and preferences of the individual and the family, where appropriate. . . It is the further intent of the Legislature to ensure that the provision of services to consumers and their families be effective in meeting the goals stated in the individual program plan, reflect the preferences and choices of the consumer, and reflect the costeffective use of public resources.” Likewise, Welfare and Institutions Code section 4648 provides in pertinent part that, in order to achieve the stated objectives of a consumer’s individual program plan, the regional center shall conduct activities including all of the following: (a) Securing needed services and supports. (1) It is the intent of the Legislature that services and supports assist individuals with developmental disabilities in achieving the greatest selfsufficiency possible and in exercising personal choices. The regional center shall secure services and supports that meet the needs of the consumer, as determined in the consumer’s individual program plan. . .


Thus, the Lanterman Act, while providing that the consumer’s preferences and choices are to be considered when determining which services are to be provided, also provides that it is equally important that those services are effective in meeting the needs of the consumer, and that they are cost-effective as well. In this case, Claimant’s mother clearly has indicated a preference for the Aquatec Fortuna bath chair. She has also established that use of this chair and its optional accessories would make transporting Claimant in and out of the bathroom much easier for her. However, she has provided no evidence that the Aquatec Fortuna is an appropriate chair for an individual the size of Claimant and with Claimant’s needs and disabilities. Instead, the evidence establishes rather that the Aquatec Fortuna is too large for Claimant and that it therefore presents a serious safety risk to him. Further, the chair is obviously designed for someone who is capable of operating the hand controls, something Claimant concededly cannot do at this time. Thus, it cannot be determined that the Aquatec Fortuna, while reflecting the consumer’s preference, would be effective in meeting the consumer’s needs. Further, Claimant is already receiving over 400 hours of LVN services. Claimant’s mother does not utilize the nurses providing these services in helping her to bathe Claimant. While her reasons for this—most specifically that she does not trust the nurses with lifting Claimant because of his size and condition—are understandable and cannot be doubted, they are not a sufficient basis for which to require SCLARC to fund a different bath chair. Welfare and Institutions Code section 4648, subdivision (a)(8), provides that Regional Center funds shall not be used to supplant the budget of any agency which has a legal responsibility to serve all members of the general public and is receiving public funds for providing those services. In this case, there is no evidence that the nurses providing the LVN services, said services being funded by a public agency other than the regional center system, are not qualified to bathe Claimant, or at least to assist Claimant’s mother in so doing. Again, this is more a question of a parent’s preference, and while her preference should be considered, it is insufficient by itself to establish that a regional center has an obligation to fund a particular service. 2 Lastly, it should be noted that this decision applies only to the funding of the Aquatec Fortuna bath chair. As set forth in Factual Finding 12, SCLARC proposed at least one other alternative chair to Claimant’s mother prior to the hearing in this matter that it believed might better suit Claimant’s needs. It is possible that there are other alternatives available which would be not only better suited to his needs than the Columbia model currently in use, but also acceptable to the concerns of Claimant’s mother, and perhaps more cost-effective as well. If this is so, neither party is estopped by this decision from pursuing such an option.


For sake of clarity, this reasoning does not apply in the context of the denial of CCS, which funded the bath chair currently being used, to fund the Aquatec Fortuna. If in fact the Aquatec Fortuna was determined to be necessary and effective in meeting Claimant’s needs, then this subdivision would not bar SCLARC from being required to fund the chair, as the parties agree that the generic resources in this regard, i.e., CCS, have already been considered and exhausted.


ORDER Claimant’s request for funding of an Aquatec Fortuna bath chair is denied.

DATED: ____________________

______________________________ MARK T. ROOHK Administrative Law Judge Office of Administrative Hearings

NOTE: This is a final administrative decision pursuant to Welfare and Institutions Code section 4712.5, subdivision (b)(2). Both parties are bound hereby. Either party may appeal this decision to a court of competent jurisdiction within 90 days.


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