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					                                      BEFORE THE
                          OFFICE OF ADMINISTRATIVE HEARINGS
                                  STATE OF CALIFORNIA



In the Matter of:                                         OAH Case No. L 2004100063
                                                                       L 2004120059
CLARISSA T.,

              Claimant,

       vs.

HARBOR REGIONAL CENTER,

              Service Agency.



                                             DECISION

              This matter came on regularly for hearing before Carolyn Dee Magnuson,
Administrative Law Judge of the Office of Administrative Hearings, on December 8, 2004 in
Torrance, California.

              Claimant's parents represented the Claimant.

            Barbara Guzman, Program Manager, for Harbor Regional Center (Service
Agency or HRC), appeared on behalf of the Service Agency.

               Claimant filed two requests for fair hearing with HRC. By agreement of the
parties, both matters were consolidated for hearing and decision. Evidence was received, and
the matter submitted.

                                              ISSUES

              The parties agreed that the issues to be decided are:

              1. Should HRC pay for legal advocacy for the Claimant in her appeal before
California Children's Services?

              2. Should HRC be required to pay for a youth bed with rails for Claimant?
             3. What is the proper manner of implementing Judge Rhook's order for in-
home assistance for Claimant?

                                    FINDINGS OF FACT

              1. Claimant is a seven-year-old girl, who has been diagnosed with cerebral
palsy and unspecified mental retardation. She has been a HRC client since 1998. Claimant
has severe delays in cognitive abilities and moderate delays in adaptive functioning.
Claimant requires total assistance with all self-help tasks.

Judge Rhook’s Order

               2. On February 26, 2004, a fair hearing was held before Administrative Law
Judge Mark T. Rhook in OAH case number L-2003050515. The issue decided by Judge
Rhook was whether HRC should be required to pay for the services of a qualified in-home
assistant for Claimant for 40 hours per week. Judge Rhook ordered HRC to pay for “. . . 40
hours per week of in-home assistance for Claimant, said service to be provided by an
individual with at least the qualifications of a certified home health assistant.”

                3. Despite the fact that Judge Rhook's order was issued in March 2004, the
assistance he ordered has yet to be provided by the Service Agency. Each of the parties
asserts that failure is the fault of the other. The Service Agency claims that the Order
requires HRC to pay for care at a level no higher than a certified home health aide and that
Claimant's family has failed to cooperate in finding, hiring, and, if necessary, training an
aide. Claimant asserts that there is no certified home health aide available who is qualified to
provide the care Claimant requires, and the Service Agency has refused to either hire a
qualified individual or to provide the family with vouchers so they can hire and pay a
qualified assistant. The family is not willing to hire an aide and then trained her or him to
work with Claimant.

              4. In his Decision, Judge Rhook stated:

       Claimant has established that she has a medical need sufficient to require the services
       of a licensed professional in an in-home setting. As to the specific level of that care,
       Dr. Gates' recommendation as noted in her report and her prescription is for a “skilled
       assistant” or “licensed professional” and the example she cites is an LVN. However,
       it is not clear that the individual must be an LVN in order to properly address
       Claimant's needs. Mr. Sato's opinion is that, while an LVN would be qualified for the
       task, an occupational or speech therapist would also be appropriate, and further that a
       certified home health assistant, properly trained, could also be utilized. Mr. Sato
       emphasized that the most important distinction between these possibilities is the
       requirement of proper training in Claimant's needs. Likewise, Ms. Geisinger
       indicated that either an occupational therapist or a “feeding specialist" would be
       appropriate. Thus, it appears it is not so important which of these professions is



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       utilized, so long as the individual selected has basic qualifications in one of them, and
       has appropriate training.

                5. At the instant hearing, the parties traded accusations about the other party’s
failures to act and/or cooperate in finding a vendor and/or worker qualified to assist in caring
for Claimant. It is unnecessary to assign relative responsibility for the stalemate in order to
resolve the issue of implementing Judge Rhook’s order, and it would otherwise be
unproductive to attempt to do so. However, it is worthwhile to note that the evidence failed
to establish that either party acted in bad faith but did establish that both parties could have
done more to resolve the problem.

               6. Claimant's parents have asked the Service Agency to allow them to hire the
authorized assistant themselves and to use vouchers from the Service Agency to pay for the
assistant’s services. HRC has refused to implement such a program because, generally,
vouchers are not allowed to pay for nursing services and because, as a matter of policy, the
Service Agency does not encourage voucher programs because of the accounting
responsibilities attendant upon such a program. Instead, the Service Agency encourages
families to use a fiscal intermediator to hire and pay for assistants.

              7. Since Claimant's father is an accountant, there should be no problem with
the family's meeting all record-keeping and reporting responsibilities. Moreover, they have
been successful in finding assistants who were trained for, and able to, assist in caring for
and feeding the Claimant. No one else has had any success in finding qualified workers.
Thus, as a practical matter, unless a voucher system is implemented, Claimant is unlikely to
be provided any time soon with the assistance ordered by Judge Rhook.

             8. Therefore, in this case, an exception to HRC's general policy should be
made, and a voucher system should be implemented to obtain the assistance ordered by
Judge Rhook.

The Vail Bed

               9. In May 2004, Dr. Beverly Gates, Claimant’s pediatrician, wrote a
prescription for a youth bed with rails/enclosure for prevention of falls and entrapment for
Claimant. At an Individual/Family Service Plan (IFSP) meeting in July 2004, Claimant's
parents requested the Service Agency to provide an adapted youth bed for Claimant’s safety.
At the instant hearing, Claimant identified a Vail 500 Series bed as being the one she
required.

               10. The Vail bed is fully enclosed. The side and end panels are mesh and
have zippered openings in them. The side rails are located outside the mesh enclosure and fit
tightly against the mattress and expand to within 18 inches of the bottom of the bed. All of
the hard surfaces are padded. The Vail 500 Series bed is described as being the top of the
line.



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              11. HRC denied the request for the bed based on information the staff had
obtained from Claimant's family and therapist which indicated that Claimant was not
sufficiently mobile to be at risk of falls and entrapment. The Service Agency wanted to
speak with Dr. Gates about her prescription for the bed in order to clarify what type of bed
she had in mind and to determine the risk to Claimant the doctor thought needed to be
addressed.

               12. However, Claimant's parents have instructed Dr. Gates not to speak with
Service Agency representatives. While it is certainly the family's right to maintain the
doctor/patient privilege, by choosing to withhold information concerning the basis of the
doctor's prescription, they also make it difficult to determine precisely what equipment
would fill the doctor's prescription. Without that information, it is not possible to establish
either precisely what was prescribed or how to most cost-effectively to fill the prescription.

                13. Claimant's occupational therapist testified that he believed Claimant
required the Vail bed or one similar to it for safety. He did not believe that traditional bed
side rails would provide adequate protection because such rails are made of metal, are
unpadded, do not fit closely against the mattress, and do not to extend the full length of the
bed. According to the therapist, because of these characteristics, if traditional bed rails were
used on Claimant's bed, Claimant would be at risk of sliding under the rails or around them
or of falling against the unpadded metal and injuring herself.

               14. The therapist reported that he had been working with Claimant more than
14 hours a week for over a year. In the last month or so Claimant has been getting stronger.
She can now lift herself off the bed; she can sit up by herself, although she often loses her
balance and falls backwards or sidewards; she now scoots and moves around the bed; she is
no longer braced so she has greater freedom of movement. However, Claimant still cannot
stand on her own, does not have a fall breaking technique, and is not able to work herself free
if she were to slide under the side rails on her bed. According to the therapist, it is only a
matter of time until Claimant is able to get out of bed on her own.

                15. Although the evidence at trial was far from clear, it appears that the
Service Agency's staff has had very limited opportunity to observe Claimant and to assess
either her progress or her needs. While there is no doubt that Claimant's occupational
therapist is skilled in his profession, there is also no doubt that he is a strong advocate for
her. Because of his obvious bias, the information he provided must be viewed with caution.
The fact is, there has been no recent, objective assessment of Claimant's needs. The
evidence certainly was insufficient to establish that her present condition and abilities
necessitate the elaborate protection provided by a Vail bed.

               16. Before the purchase of a Vail bed could be justified, it would have to be
shown that Claimant's needs could not be met less expensively. For instance, the fact that
commercial bed rails typically are unpadded does not mean they could not be custom
padded. It was not shown that a reasonable search had been made for a commercial bed rail
that was close to bed length and fit tightly against the mattress. Thus, it was not established

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that all commercially available bed rails were potentially dangerous to Claimant. Moreover,
it was not shown that the Vail bed was the most cost-efficient method of protecting Claimant.

Legal Advocacy

               17. In a letter dated April 6, 2004, Claimant's parents expressed concern
regarding Crippled Children's Services’ (CCS) denial of Claimant’s request for continuation
of physical therapy services and provision of adaptive equipment.1 In that letter, the parents
asked for explanation of the Service Agency's refusal to provide advocacy for Claimant in
her appeal of the CCS denials of benefits.2 In a second communication of the same date, the
parents claimed they had been told by HRC staff that they were entitled to legal advocacy in
appealing the CCS denial of benefits and urgently requested H RC to provide such advocacy
because they were unfamiliar with the law governing CCS and were unable to proceed on
their own.

                18. Kathleen Richards, a Program Manager at HRC, responded by letter to
Claimant's parents and explained that the Service Agency was not declining to provide
advocacy for Claimant. However, the letter made it clear that HRC’s advocacy efforts were
limited to the resources existing within the Service Agency and did not include retaining an
attorney to represent the family.

               19. Since the spring of 2004, the Service Agency and Claimant's parents have
disputed one another over what type of advocacy HRC is obligated to provide for the family
at CCS. According to HRC, it is a Service Agency's responsibility to provide technical
assistance to the family on how to access generic services. In some circumstances, HRC
may provide legal advocacy. The threshold question is whether HRC believes there is a legal
right to be defended. Before that determination can be made, the Service Agency must
determine the merit of the claim.

                20. In this case, HRC caseworkers were following the issues with the family;
some technical assistance was provided, and Ms. Richards had arranged to participate in the
CCS appeal appointment with the family. However, Claimant's parents chose to cancel the
appointment and not proceed with the appeal. As a result, there is a question of whether the
Claimant's appeal of the CCS denial of equipment and services is still viable. At the time
they initially requested advocacy, Claimant's parents characterized the upcoming appeal
appointment as being the last opportunity to appeal the CCS denials.

            21. In September 2004, Claimant requested funding for adaptive equipment
from a HRC. That request was substantially the same as the request for adaptive equipment


1
  The physical therapy was terminated because Claimant did not appear to be benefiting from it. The adaptive
equipment was denied because the Claimant’s parents did not meet the financial criteria for CCS to supply it.
2
  In that letter, Claimant’s parents were also concerned about Medi-Cal eligibility, but that concern is not at issue
here.


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the family had made to CCS. HRC denied the request on the basis that Claimant already
possessed sufficient adaptive equipment to address her needs.

              22. Immediately after receiving that denial, Claimant's parents wrote to the
Service Agency and stated that HRC's denial of the Claimant's request for adaptive
equipment created a conflict of interest which disqualified Service Agency staff members
from providing advocacy for Claimant and renewed their requests for HRC to provide legal
advocacy for the CCS appeal. When that request was denied, the instant fair hearing request
was filed.

                                         LEGAL CONCLUSIONS

Judge Rhook’s Order

              23. Government Code section 4648 sets out the manner in which a
consumer’s Individual Program Plan3 is to be implemented. Subdivision (a) (4) of that
section provides that, even though the general rule is that a service provider must be
vendored by the service agency, a regional center may contract or issue a voucher for
services and supports to an unvendored service provider.

              24. Judge Rhook's decision constituted an amendment to Complainant’s IFSP.
Thus, the exception to the requirement for vendorization found at Government Code section
4648, subdivision (a) (4) is applicable to implementing Judge Rhook's order.

The Vail Bed

              25. Government Code section 4640.6, subdivision (c) (8) provides that the
regional centers shall ensure maximum cost-effectiveness in providing the services needed
by consumers.4

               26. Claimant has asked HRC to purchase a Vail 500 series bed for her.
Before this request can be granted, consistent with the mandates of the Lanterman Act, HRC
must determine what Claimant's needs are and whether the Vail bed is the most cost effective
way of meeting those needs.

              27. At this time, Claimant has failed to provide either adequate evidence of
her needs or sufficient proof that her needs cannot be met more cost-effectively than by
purchasing the requested bed. As noted above, Claimant and her parents are not compelled
to allow Service Agency employees or agents to observe and/or assess Claimant. Nor are
they compelled to disclose medical information concerning Claimant. However, when the

3
  Although the Lanterman Act and most regional centers call a consumer’s annual program plan an Individual Pro-
gram Plan (IPP), HRC uses the term Individual/Family Service Plan (IFSP).
4
  In fact, cost-effective delivery of supports and services to regional center consumers is a theme throughout the
Lanterman Act.


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consequence of such nondisclosure is that Claimant's needs cannot be adequately assessed by
HRC and the medical necessity of her requests cannot be validated, then Claimant's requests
cannot be granted because the Service Agency cannot make the determinations regarding
those requests which are mandated by the Lanterman Act.

                28. Because Claimant is seeking a new benefit, it is her burden to show that
she needs the support or service sought and that the proposed solution is cost-effective. On
the state of the evidence as it presently stands, neither Claimant's need for an adaptive bed
nor the cost-effectiveness of purchasing a Vail bed for her can be determined. While it
appears that some type of bed restraint would be appropriate for Claimant, further
information is needed to establish precisely what risks Claimant faces that need to be
addressed and what resources are available for that purpose.

Legal Advocacy

               29. Government Code section 4648, subdivision (b) mandates regional centers
to provide “[advocacy for, and protection of, the civil, legal and service rights of persons
with developmental disabilities . . . .” The particulars of the regional centers’ advocacy
responsibilities are not specifically defined in the Lanterman Act. Therefore, in most cases,
the scope of the responsibility would be defined by the facts of each case, since no two are
the same. Nonetheless, it is clear that, in all cases where advocacy is warranted, the support
provided must be tailored to the individual needs of the consumer and it must be a
meaningful effort to assist the consumer, i.e. not pro forma.

               30. In this case, Claimant’s parents feel that they are not able to effectively
advocate for Claimant in the CCS appeal because they do not know the law governing the
issues and they refuse in-house assistance from HRC staff because of a perceived conflict of
interest on the part of the Service Agency.

                31. Claimant’s allegation of conflict of interest is specious. Initially,
Claimant intentionally created the so called conflict by belatedly making an adaptive
equipment request to HRC. In addition, the fact that HRC denied the Claimant’s request for
adaptive of equipment does not, per se, establish a conflict of interest on the part of the
Service Agency. HRC may provide only those services and supports determined to be
needed by its consumers. It was not established that CCS applies a similar standard to
requests it receives for adaptive equipment. In fact, in this case, CCS approved the adaptive
equipment but did not provide it because Claimant was determined to be financially
ineligible for the grant. Moreover, Claimant’s parents rendered the issue of advocacy by
HRC moot when they cancelled the appointment for the “last” opportunity to appeal CCS’s
denials. Evidence adduced at the instant hearing failed to establish that there is a viable issue
with CCS for which advocacy is needed.

///

///

                                                7
Conclusion

                32. Claimant and her family understandably want the best possible supports
and services for Claimant. However, the Lanterman Act’s standards are very bare bones. It
asks what must the individual have and how can that goal be achieved most cost-effectively?
Therefore, for purposes of seeking assistance from a regional center under the Lanterman
Act, it is never sufficient to show only that a benefit would be derived by the consumer from
the desired service or support.

                33. In addition, it is essential for those who are responsible for safeguarding
the interests of a developmentally disabled child to remember that the needs of the child are
paramount and that the policies of the regional center and the preferences of the parents must
take a subordinate position to those interests.

               34. While it is the responsibility of a regional center to coordinate the services
needed by its consumers, which includes locating providers for the needed services, the
consumer and the consumer’s family have an equal obligation to cooperate in obtaining the
needed services. In this case, Claimant’s family must understand that there will always be
some inconvenience to the family and some time delay in locating and obtaining services and
supports when they are being provided by HRC.

                35. Finally, at the instant hearing, Claimant’s parents poignantly testified
about the toll taken on them individually and on the family structure by the ongoing strain of
caring for Claimant. Clearly, their situation is exceedingly difficult and incessantly draining.
Their situation is one with which nearly everyone would empathize. However, ultimately,
regardless of the sympathy that the trier of fact may personally feel for the Claimant and her
family, the decision and orders in this case had to be based on the evidentiary facts as applied
to the relevant law, and therefore, claimant’s requests for legal advocacy and the Vail bed
could not be granted.

                                            ORDER

               1. Claimant’s request for HRC to purchase a Vail 500 series bed for her is
denied without prejudice to renew the request in the future after Claimant’s needs have been
objectively assessed.

               2. Claimant's request for HRC to pay for legal advocacy for her in a CCS
appeal is denied.

///

///




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             3. HRC will, within 30 days of the issuance of this Decision, initiate a
voucher program to pay for the in-home assistance ordered for Claimant by Judge Rhook in
March 2004.

      Dated:




                                                       CAROLYN D. MAGNUSON
                                                       Administrative Law Judge
                                                       Office of Administrative Hearings

       NOTE: This is a final administrative decision pursuant to Welfare &
Institutions Code section 4712.5(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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