M.A.K. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-048-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       11‑P‑2174                                       Appeals Court   M.A.K.[1]  vs.  DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2]     No. 11‑P‑2174.      April 1, 2013.   Department of Developmental Services.  Intellectually Disabled Person.  Administrative Law, Agency’s interpretation of regulation.  Notice.       The guardians of M.A.K., a profoundly intellectually disabled individual, appeal from a judgment of the Superior Court affirming the decision by the Department of Developmental Services (DDS) to transfer their ward from the Fernald Developmental Center (FDC) to the Wrentham Developmental Center (WDC).[3]  We reverse.     DDS regulations encourage participation by the family and the guardians in all aspects of the individual support plan (ISP) process and impose the duties, among others, upon them to provide ongoing feedback to the service coordinator and to the providers regarding their satisfaction with the ISP, its implementation, and the need for modification.  See 115 Code Mass. Regs. §§ 6.20(4) and 6.21(4)(d) (2009).  DDS is required by its own regulations to invite the family and guardians, among others, to the individual transition plan(ITP)/ISP modification meeting.  See 115 Code Mass. Regs. § 6.25(4)(a) (2009).  DDS is also required to “provide reasonable assistance and accommodations to enable the individual and other members of the ISP team to participate meaningfully in the . . . modification of the ISP.”  115 Code Mass. Regs. § 6.21(2) (2009).  These regulations “carry the force of law” and where, as here, no challenge to their validity is made, they must be enforced.  See Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267, 277 n.17 (2007).   Here, by certified letter dated June 9, 2010, Diane Enochs, the DDS Assistant Commissioner of Facilities Management, notified M.A.K.’s guardian, Loretta Ann Zannis, that (1) M.A.K.’s ISP team had recommended WDC as M.A.K.’s new home, and (2) an ITP/ISP modification meeting had been scheduled for June 22, 2010.  As of that date, M.A.K. had lived at the FDC for sixty years, and the FDC closure process had been ongoing for seven years.  Although the guardians had received previous correspondence from DDS asking them to participate in the planning process, this was their first notice of any plan to send M.A.K. to WDC.  Enochs informed Zannis of her right to reschedule the meeting on reasonable notice up to two business days before the meeting, stating that requests to reschedule “will be honored […]

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