M.M. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-012-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑1592 Appeals Court M.M.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another[2] No. 12‑P‑1592. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Guardian. Notice. Civil action commenced in the Superior Court Department on July 27, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardians, M.M., a profoundly intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC).[3] See G. L. c. 123B, § 3. Our analysis here involves whether, during the DALA hearing, the Department of Developmental Services (DDS) presented the administrative magistrate with substantial evidence to support his decision that the interfacility transfer would result in improved services and quality of life for M.M. and be in M.M.’s best interest. After reviewing the administrative record and the parties’ submissions, we affirm the judgment of the Superior Court approving DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. M.M. is forty-nine years old and has resided at FDC since the age of five. He is profoundly intellectually disabled and cannot care for himself. He has nonspecified psychosis and suffers from episodes of anger and self-injurious behavior. DDS has proposed to transfer M.M. from his residence at FDC to Heffron Hall B apartment 3, at WDC. On June 10, 2010, DDS, as required by 115 Code Mass. Regs. § 6.63 (2009), issued a forty-five day notice and request for proposed facility transfer to M.M.’s guardians.[4] The guardians objected to the transfer, and DDS then referred the case to DALA. A DALA magistrate conducted an evidentiary hearing and concluded that DDS’s proposed transfer of M.M. to WDC was in his best interest. On July 19, 2012, a Superior Court judge affirmed the DALA magistrate’s decision. M.M., through his guardians, then filed a timely notice of appeal to this court. 2. Standard of review. This is an appeal under G. L. c. 30A, § 14. By statute, therefore, we must review the conclusion […]
Categories: News Tags: 1101214, department, Developmental, Lawyers, M.M., Services, Weekly
E.G. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-014-14)
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 12‑P‑1560 Appeals Court E.G.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1560. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on July 7, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Carrie Benedon, Assistant Attorney General, for the defendants. BERRY, J. The Department of Developmental Services (DDS) seeks to transfer E.G., a profoundly intellectually disabled individual, from the Fernald Developmental Center (FDC) to the Wrentham Developmental Center (WDC).[3] E.G.’s guardians oppose the transfer. Following an adjudicatory hearing on the guardians’ objections, an administrative magistrate of the Division of Administrative Law Appeals (DALA) concluded that the proposed transfer met the requirements of the State statutory standard, allowing it to proceed. See G. L. c. 123B, § 3. A judge of the Superior Court subsequently affirmed DALA’s decision. See G. L. c. 30A, § 14(7). We affirm. E.G. currently resides at Cottage 12B on the FDC campus with three other individuals. DDS’s plan calls for E.G. to be reunited with a number of his former longterm housemates at Heffron Hall B, apartment 3 at WDC (apartment 3). Although E.G. does not interact with his peers, he successfully lived with that peer group for over twenty-five years. We consider the claims and issues that are unique to E.G.’s individual circumstances. A finding that the transfer was in E.G.’s best interest was supported by substantial evidence. The vision section of E.G.’s 2009-2010 individual service/support plan (ISP) identifies the ability “to safely move about his home and workplace” as a hope and dream of the future, and “a stable home” as an aspect of his membership in the community. The living space at apartment 3, as compared to that at FDC, is indisputably smaller. Contrary to the guardians’ assertions, however, the magistrate credited the testimony from DDS’s witnesses that the personal space at apartment 3 would be adequate to meet E.G.’s needs. As the magistrate noted, familiar psychology staff will be assigned to E.G. at apartment 3, and they, in conjunction with familiar direct care workers who have transferred […]
Categories: News Tags: 1101414, department, Developmental, E.G., Lawyers, Services, Weekly
J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-121-13)
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 12‑P‑1760 Appeals Court J.W.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1760. Middlesex. June 6, 2013. ‑ October 3, 2013. Present: Vuono, Brown, & Sikora, JJ. Division of Administrative Law Appeals. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Judicial review. Statute, Construction. Civil action commenced in the Superior Court Department on September 15, 2011. The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings. Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiffs. BROWN, J. In a thoughtful and comprehensive seventy-six page decision, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the involuntary transfer of J.W., a severely intellectually disabled individual, from his residence at Malone Park 23 at the Fernald Developmental Center (FDC) to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3, as amended through St. 2010, c. 239, §§ 46-48. On review, a judge of the Superior Court concluded that while “there [was] no lack of substantial evidence for the decision,” the magistrate erred by limiting his consideration of J.W.’s best interest to placements at either Malone Park 23 or the single alternative proposed by the Department of Developmental Services (DDS). See G. L. c. 30A, § 14(7)(c). On this basis, judgment entered vacating DALA’s decision and remanding the matter to DALA for further proceedings. This appeal followed. Although we agree with the judge’s conclusion that substantial evidence supported DALA’s decision, we disagree with his statutory construction. Accordingly, we vacate the judgment of the Superior Court and remand the case for entry of a judgment affirming DALA’s decision. Because this appeal turns on an issue of statutory interpretation, we set out the terms of the governing transfer statute, G. L. c. 123B, § 3 (transfer statute or § 3), in some detail. The transfer statute provides a specific process that must be followed by DDS in every case where it seeks to transfer an intellectually disabled individual “from one residential facility for the intellectually disabled to another.” G. L. c. 123B, § 3, first par. The first paragraph of § 3 establishes that DDS must consult with the permanent guardians (or nearest relative) of the individual and give notice “at least forty-five days prior […]
Categories: News Tags: 1112113, department, Developmental, J.W., Lawyers, Services, Weekly
Prayer Vigils and Services: Response to the Boston Marathon Bombings
For some, a prayer vigil or service is a way to gather with others and spiritually support the bombing victims, the city of Boston — even the perpetrator/s. For others, it is a way to seek answers — or peace, in the face of unsettling evil. Or even just share quiet company with others or with God. Patch is gathering a list of all the prayer services and vigils in response to the Boston Marathon bombings. Below is a list of vigils and services being held and open to the public; we will be adding to it all day. If we don’t have it listed here, please add your own to the comment section below: Andover: Where: Unitarian Universalist Congregation What: Meditation and prayer vigil When: Thursday, 7 p.m. For more: http://patch.com/A-3FC4 Attleboro: Where: All Saints’ Episcopal Church When: 12:30 p.m. and 5:45 p.m. What: Prayer service For more: http://patch.com/A-3Fgr Billerica: Where: The Common in Billerica Center When: 5:30 p.m. tonight What: The churches and faith communities of Billerica will gather for a time of prayer for peace and healing Boston: Where: The First Church of Christ, Scientist When: Noon and 7:30 p.m. Wednesday What: Church services with a healing response to the events. The church is also open for tours; during tour hours, people are also invited to come in for quiet prayer and contemplation. Where: Arlington Street Church When: 8 p.m. tonight What: Vigil Where: Old West Church United Methodist When: 7 p.m. tonight What: Vigil Where: The Paulist Center, 5 Park Street, across from the Boston Common When: 5:15 and 6:15 p.m. tonight What: Interfaith prayer vigils Burlington: Where: Temple Shalom Emeth When: 7:30 p.m. Friday, April 19 What: Shabbat service conducted by Rabbi Abramson and Cantorial Soloist Ben Silver will contain prayers and reflections on this tragedy Chestnut Hill: Where: St. Ignatius Church, located on the edge of the Boston College campus at 28 Commonwealth Ave. When: 5 p.m. tonight What: A “Mass of Healing and Hope;” all members of the BC communtiy are invited. University President William P. Leahy will celebrate the mass and a sacramental anointing for healing will follow the service. Concord: Where: First Parish When: 7 p.m. tonight What: Vespers service Danvers: Where: United Methodist Church When: Wednesday, Thursday & Friday 9 a.m. – 3 p.m. What: The church will be open for those who would seek a place of peace and prayer. Where: Maple Street […]
Several MBTA Services Suspended Following Marathon Explosion
MBTA T service in downtown Boston is in varying stages of suspension as emergency crews respond to the aftermath of at least two explosions at the finish line of the 2013 Boston Marathon. The MBTA’s Green Line service between Kenmore and Park Street stations has been shut down as of 3:30 p.m. today, although Green Line service will continue to run between Lechmere and North Station, according to MBTA.com. Both the Green Line’s B and C services have been temporarily suspended, and the D line is only running from Riverside to Fenway. The Green Line’s E service is still running between Northeastern and Brigham Circle. Customers who need service between Brigham Circle and Health Street are being asked to use the Route 39 bus. In addition, the Red Line is bypassing Park Street Station at this time, with the Red and Orange lines bypassing Downtown Crossing Station. Currently, only the Blue and Silver lines and the Red Line to Mattapan are unaffected by the incident. Customers who need transportation in the Back Bay and downtown areas should use the Orange Line to Back Bay and Chinatown stations and the Red Line to South Station, according to the MBTA website. South End Patch
M.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-047-13)
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 12‑P‑241 Appeals Court M.D.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES[2] & another.[3] No. 12‑P‑241. Middlesex. September 18, 2012. ‑ April 1, 2013. Present: Berry, Brown, & Agnes, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Agency’s interpretation of statute, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on March 25, 2011. The case was heard by Daniel M. Wrenn, J., on a motion for judgment on the pleadings. Stephen Michael Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants. BROWN, J. The Fernald 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 residents of FDC, where she has lived since 1985. At FDC, M.D. receives services and supports in accordance with the individual service plan (ISP) developed by her team. On May 28, 2010, the Department of Developmental Services (DDS) gave notice to M.D.’s guardians of its intentions to transfer her from FDC to the Wrentham Developmental Center (WDC), another ICF in the Commonwealth. This notice is required by G. L. c. 123B, § 3, inserted by St. 1986, c. 599, § 39, (transfer statute). Under the statute, M.D.’s guardians had forty-five days to object to the proposed transfer. The guardians objected, and DDS then referred the case to the Division of Administrative Law Appeals (DALA) for a hearing, in accordance with the statute. An evidentiary hearing was held before an administrative magistrate, who issued a decision that included detailed findings of fact. The administrative magistrate concluded that the transfer of M.D. to the WDC would result in improved services and quality of life and was in her best interest. The guardians then appealed the DALA decision in Superior Court. Review in that court was under G. L. c. 30A, § 14(7). The judge upheld DALA’s decision, and this appeal followed. 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 […]
Categories: News Tags: 1104713, department, Developmental, Lawyers, M.D., Services, Weekly
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 […]
Categories: News Tags: 1104813, department, Developmental, Lawyers, M.A.K., Services, Weekly
Easter Sunday Church Services in the South End
Looking to celebrate Easter? Here’s a list of church services happening in the South End on Easter Sunday, March 31, 2013. Cathedral of the Holy Cross Mass in English at 8 a.m. Mass in Spanish at 9:30 a.m. Extraordinary Form Mass at 11 a.m. Mass in English at 11:30 a.m. Union United Methodist Service at 9:30 a.m. Mt. Calvary Baptist Church Service at 11 a.m. South End Neighborhood Church Service at 11 a.m. and an Easter egg hunt. People’s Baptist Church of Boston Services at 8 a.m. and 10:45 a.m.; Easter breakfast from 9:30 a.m. to 10:30 a.m. Grant A.M.E. Church Service at 11 a.m. St. Stephen’s Episcopal Church Service at 9 a.m.; service and baptism at 11 a.m. Columbus Avenue A.M.E. Zion Church Service at 10 a.m. Shawmut Community Church of God Service at 11 a.m. Church of St. Augustine and St. Martin Service at 9:30 a.m. Congregation Lion of Judah Services at 9 a.m. Ebenezer Baptist Church Services at 10:30 a.m. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch