Posts tagged "Developmental"

J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-120-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1760                                       Appeals Court   J.W.[1]  vs.  DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2],[3] No. 12-P-1760. Middlesex.     June 2, 2014.  –  September 24, 2014.   Present:  Green, Trainor, & Grainger, 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 plaintiff.   TRAINOR, J.  The Department of Developmental Services (DDS) appeals from a Superior Court judgment that vacated the decision of the Division of Administrative Law Appeals (DALA) approving the transfer of J.W. under the provisions of G. L. c. 123B, § 3.[4] J.W. is a profoundly mentally disabled, visually impaired, and nonverbal individual.  He has little or no concept of personal safety, and therefore, while he can walk independently, he cannot negotiate stairs alone.  He has been a resident at the Fernald Developmental Center (FDC or Fernald) for nearly his entire life.  The FDC is in the process of closing, however, and the policy decision to transfer its residents, all intellectually disabled individuals, to other appropriate care facilities is no longer subject to review by the Federal courts and would require a change in State law to prevent.[5] In a comprehensive and balanced decision, an administrative magistrate of the DALA approved the plan proposed by the DDS to transfer J.W. from his residence at Malone Park 23 at the FDC to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC).  See G. L. c. 123B, § 3. A judge of the Superior Court, on review, concluded that “[i]f one accepts the Magistrate’s legal rulings — essentially limiting inquiry to a choice between Fernald and Heffron Hall — then there is no lack of substantial evidence for the Decision.  Nor (on the same assumption) does the Court find any error in ‘the logic of the analysis that the hearing officer articulated in [his] decision.’  Covell v. Department of Developmental Servs., 439 Mass. 766, 782 (2003).”  Despite that, the judge concluded that the magistrate erred in his legal ruling by limiting his consideration of J.W.’s best interest to either the existing placement at Fernald or the single alternative proposed by […]

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Posted by Massachusetts Legal Resources - September 24, 2014 at 11:06 pm

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G.R. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-011-14)

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‑0951                                                                             Appeals Court   G.R.[1]  vs.  DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑951. 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 April 28, 2011.   The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings.     Stephen M. Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants.       KATZMANN, J.  Through his guardian, G.R., a severely 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).  See G. L. c. 123B, § 3.[3]  We focus our analysis on whether the Department of Developmental Services (DDS) presented the administrative magistrate at the DALA hearing with substantial evidence to support her decision that the interfacility transfer would be in G.R.’s best interest.  After reviewing the administrative record and the parties’ submissions, we conclude that the magistrate’s decision was supported by substantial evidence and that there is no ground to set aside the DALA’s decision.  We affirm the judgment of the Superior Court approving the DALA’s decision.  See G. L. c. 30A, § 14(7). 1.  Background.  At the time of the administrative hearing, G.R. was sixty-six years old.  He has lived at FDC since 1956.  G.R. is severely intellectually disabled as well as blind and deaf.  He cannot communicate verbally, although he will vocalize sometimes.   In 2003, the year that its closure was announced, FDC served 280 residents.  In November, 2010, FDC only served twenty-three residents.  There are over eighty buildings on the FDC campus, and approximately fifty are not in use.  As an older facility, FDC has extensive physical plant maintenance issues; however, funds are only available for necessary repairs, rather than renovations.  There have also been significant staffing changes associated with FDC’s closure.  From 2004 to the time of the administrative hearing, there were fifteen consolidations in residences or day programs.  Staff members have transferred to other facilities, have retired, or have been laid off. As a Ricci class member, see Ricci v. Okin, 823 F. Supp. 984 (D. […]

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Posted by Massachusetts Legal Resources - February 20, 2014 at 8:38 am

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P.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-013-14)

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‑1460                                                                             Appeals Court   P.D.[1]  vs.  DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1460. 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 August 10, 2011.   The case was heard by Kathe M. Tuttman, 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.  This involuntary transfer case concerns a proposal by the Department of Developmental Services (DDS) to move P.D., a profoundly intellectually disabled man, from his home at the Fernald Developmental Center (FDC) to Heffron Hall B, apartment 3 (apartment 3) at the Wrentham Developmental Center (WDC).  After determining that the transfer would result in improved services and quality of life for P.D. and be in his best interest, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the transfer.  See G. L. c. 123B, § 3.  The guardians appeal from a Superior Court judgment affirming that decision.  Concluding, as we do, that the decision was supported by substantial evidence and free from error of law, we affirm. Substantial evidence.  The magistrate’s ultimate conclusion that the transfer would result in improved services and quality of life for P.D. was supported by substantial evidence.  See G. L. c. 30A, § 14(7); G.R. v. Department of Developmental Servs., ante at         (2013).  In determining whether the transfer should proceed as in P.D.’s best interest, the magistrate properly examined the over-all picture, comparing the supports and services available at the respective facilities to meet P.D.’s unique needs.  He also carefully considered the guardians’ many objections, as required by the statute, and rejected them as invalid or unreviewable, or valid but outweighed by other factors or adequately addressed by DDS. P.D. has lived at FDC for most of his life.  His primary medical and psychiatric issues are sever pica (ingesting nonfood items), skin picking, hyperactivity, a swallowing disorder, and both obsessive-compulsive disorder and bipolar disorder.  These conditions are addressed in his individual support/service plan (ISP). In his decision, the magistrate identified the seven distinct improvements in services and quality of life that DDS asserted would be available to P.D. at […]

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Posted by Massachusetts Legal Resources - February 20, 2014 at 5:03 am

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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 […]

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Posted by Massachusetts Legal Resources - February 20, 2014 at 1:27 am

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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 […]

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Posted by Massachusetts Legal Resources - February 20, 2014 at 1:12 am

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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 […]

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Posted by Massachusetts Legal Resources - October 3, 2013 at 7:48 pm

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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 […]

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Posted by Massachusetts Legal Resources - April 2, 2013 at 5:19 pm

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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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Posted by Massachusetts Legal Resources - April 2, 2013 at 1:41 pm

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