Judge Curtis A. Kin, Case Number: 23STCP03635, Date: 2024-06-06 Tentative Ruling

Petitioner Hendrix W., by and through Jade Ahmadadeen, as guardian ad litem, petitions for a writ of mandate 1) directing respondent Kim Johnson, Director, California Department of Social Services (“Department”), in her official capacity, to set aside the administrative decision denying protective supervision to petitioner and 2) remanding the case for further proceedings.

“In 1973 the Legislature enacted the In-Home Supportive Services (IHSS) program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867.) “The Department and its director are responsible for administering the IHSS program in compliance with state and federal laws. [Citations.] The Department promulgates regulations to implement the statutes [citations] while the county welfare departments administer the program under the state’s general supervision. The county departments process applications for IHSS assistance [citations], determine the individual’s needs and authorize services. [citation.].” (Id. at 868.)

The IHSS program is governed by Welfare and Institutions Code sections 12300, et seq., and the Department’s Manual of Policies and Procedures (MPP), sections 30-700, et seq. The services that may be authorized through the IHSS program are specified in MPP sections 30-757.11 through 30-757.19. (See RJN Ex. A.) The Department issues additional guidance on IHSS benefits in All-County Letters (“ACL”) to county departments. (RJN Ex. B [“ACL No. 15-25”].)

Protective supervision is an IHSS supportive service. (Welf. & Inst. Code § 12300(b).) Protective supervision “consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.” (RJN Ex. A at MPP § 30-757.17.) It is a benefit available for observing the behavior of “non-self-directing, confused, mentally impaired, or mentally ill persons only.” (Id. at MPP § 30-757.171.)

Protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (Id. at MPP § 30-757.173(a).) Furthermore, protective supervision must be limited to the functional limitations of the recipient and cannot be authorized for routine childcare or supervision. (Id. at MPP § 30-763.456(d).)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized:

(b) When the need is caused by a medical condition and the form of the supervision required is medical.

(e) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself.

“The Department’s regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit…. ‘ “Protective supervision” services authorized by section 12300 are “for monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons....” [Citation.] … To be eligible for such services, an individual must show “that twenty-four hour need exists ... and that the recipient can live at home safely if protective supervision is provided.” [Citation.] [¶] Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive. For example, one autistic, blind and brain-damaged child lapses “into seizures and temper tantrums ... venting his frustrations by banging his head against a wall.” Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette.’ [Citation.]” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-15, quoting Miller v. Woods, 148 Cal.App.3d at 869.) “‘Protective supervision’ appears to be similar to care given small children, that is, anticipating everyday hazards and intervening to avert harm.” (Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1847.) “[E]ligibility for IHSS benefits must generally be reassessed on an annual basis. [Citations.]” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754.)

At the time of the annual reassessment at issue, petitioner was a 4-year-old male diagnosed with autism and was nonverbal. (AR 3.) Petitioner resides with his mother, his mother’s fiancé, and his sister. (AR 2-4.)

After county social worker Troy Hong conducted petitioner’s annual reassessment in June 2022, petitioner was notified on June 30, 2022, that he was authorized for 42 hours and 4 minutes per month of IHSS benefits and denied protective supervision. (AR 3, 112-13.) The social worker determined that, although petitioner has a mental impairment, was likely to engage in dangerous activities, and needed 24-hour a day supervision, he did not meet the purported requirement to be “non self-directing due to mental impairment/mental illness.” (AR 496.)

On July 5, 2022, Jade Ahmadadeen, petitioner’s mother and guardian ad litem, filed a request for a hearing on the denial of protective supervision. (AR 119.)

On September 28, 2022, a telephonic administrative hearing was held before administrative law judge Jose Masso (“ALJ”) concerning the County’s denial of protective supervision. (AR 2, 552.) The issue in dispute was whether the County’s denial of protective supervision was proper. (AR 3.) Petitioner, petitioner’s authorized representative, a county appeals specialist, and county social worker participated in the hearing. (AR 3.)

The County’s position was that petitioner does not qualify for protective supervision because he is self-directing and the type of supervision required is akin to routine childcare for a child of similar age. (AR 482-83.) The County submitted its position statement (AR 479-86); Notice of Action, dated June 30, 2022 (AR 487-90); Health Care Certification form (SOC 873) (AR 491-92); Case Assessment Narrative (AR 493-98); SOC 821 form (AR 499); petitioner’s Individualized Education Program (“IEP”) (AR 500-33); and petitioner’s Individual Program Plan (“IPP”) (AR 534-43).

Petitioner submitted the Request for Hearing (AR 32-33, 119-123); handwritten notes by petitioner’s mother (AR 35-36, 115-16); a print-out of petitioner’s mother’s text exchange with a neighbor (AR 37-38, 117-118); Authorized Representative Form (AR 39, 110); position statement (AR 40-104); Notice of Action, dated June 30, 2022 (AR 112-13); SOC 821 form (AR 125); two protective supervision questionnaires (AR 126-27); examples of petitioner’s self-injurious behaviors (AR 128-31); petitioner’s IPP (AR 132-45); a psychological assessment (AR 146-58); petitioner’s IEP (AR 159-192); Insurance Treatment Plan (AR 193-223); and copies of correspondence and miscellaneous information (AR 224-478).

At the hearing, petitioner’s mother testified that petitioner would attempt to climb furniture 12 or more times in a day and put things in his mouth over 20 times in a day. (AR 5, 578-80, 582.) Petitioner’s mother also testified that petitioner would attempt to elope in public, but she did not take him in public except to go to the park on Fridays. (AR 6.) The county social worker’s Assessment Narrative found petitioner to be self-directing as “[m]ost four-year old children are unable to assess danger and risk of harm; therefore, [petitioner] is not expected to be able to exercise good judgment and safety awareness.” (AR 496.) At the hearing, the social worker testified that he did not observe any behavior indicating that petitioner was nonself-directing. With regards to petitioner’s climbing behavior, the social worker testified that this behavior is typical for four-year children. (AR 589.) The social worker’s Assessment Narrative stated that the climbing behavior is “not unlike those of typically-developing four-year-old children.” (AR 496.)

On October 21, 2022, the ALJ issued his post-hearing decision (“Decision”). (AR 2.) First, the Decision found that petitioner has a mental impairment. (AR 21.) Second, the Decision found that petitioner is “self-directing.” (AR 21.) Third, the Decision found that petitioner is not likely to engage in dangerous behaviors. (AR 29.) Fourth, the Decision determined that petitioner does not require 24-hour supervision. (AR 31.) The Decision did not make a finding regarding whether petitioner requires more supervision than routine childcare. (AR 21-31.)

Regarding engagement in dangerous behaviors, the ALJ determined that many of petitioner’s identified behaviors are either not dangerous or have been eliminated by an environmental modification. (AR 30.) Petitioner’s behaviors of stove play and attempts to elope from the home have been abated due to environmental modifications, including locks on the stove and doors. (AR 30.) Further, the ALJ found that petitioner’s mouthing behavior does not pose a danger as there is no reliable evidence concerning the frequency of the behavior to conclude it is a danger to him. (AR 30.) The ALJ also found that the evidence does not show that petitioner’s climbing or jumping was an inherently dangerous behavior. (AR 30.)

Having found that petitioner is self-directing, not likely to engage in dangerous behaviors, and certain behaviors were predictable, the ALJ determined that petitioner was ineligible for protective supervision, even though petitioner has a qualifying mental health condition. (AR 31.)

On October 4, 2023, petitioner filed a verified Petition for Writ of Administrative Mandamus. On December 14, 2023, respondent filed an Answer.

On April 8, 2024, petitioner filed an opening brief. On May 7, 2024, respondent filed an opposition. On May 21, 2024, petitioner filed a reply. Petitioner has also lodged the administrative record and joint appendix.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The Court exercises its independent judgment in reviewing denials of applications for public assistance. (See Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 752.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

· Exhibit A – Department Manual of Policies and Procedures, Chapter 30-700 – GRANTED (Evid. Code § 452(b))

· Exhibit B – All-County Letter No. 15-25, Protective Supervision Clarifications – GRANTED (Evid. Code § 452(c))

· Exhibit C – All-County Letter No. 17-95 (Evid. Code § 452(c)) – GRANTED (Id. § 452(c))

For petitioner to be entitled to protective supervision, he must show that he is: (1) “nonself-directing, confused, mentally impaired or mentally ill” (MPP § 30-757.171); (2) requires “twenty-four-hours-a-day supervision in order . . . to remain at home safely” (MPP § 30-757.173(a)); and (3) requires “more supervision” than “routine childcare” (MPP § 30-763.456(d)).

Under MPP § 30-757.171, petitioner must show that he is “nonself-directing, confused, mentally impaired or mentally ill.” Petitioner satisfies this requirement. The county social worker and the ALJ found that petitioner has a mental impairment, specifically autism spectrum disorder. (AR 4, 21, 496.)

In the Decision, the ALJ found that “a person must be both mentally impaired or mentally ill and nonself-directing to be eligible for Protective Supervision.” (AR 15.)[1] The Court disagrees. Because the regulation uses the word “or,” petitioner only needs to show that he is one of the four possible characteristics listed in the regulation. “Such use of the word ‘or’ in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 680.) In this regard, the plain language of the regulation is clear and unambiguous. “[T]he principle of deference [to an agency’s interpretation of its own regulation] is not without limit; it does not permit the agency to disregard the regulation’s plain language. [Citation.]’ [Citation.]” (Ortega v. Johnson (2020) 57 Cal.App.5th 552, 564)

The ALJ cited Marshall v. McMahon (1993) 17 Cal.App.4th 1841 and Calderon v. Anderson (1996) 45 Cal.App.4th 607 to support the proposition that “a person must be both mentally impaired or mentally ill and nonself-directing to be eligible for Protective Supervision.” (AR 15.) In Marshall, the Court of Appeal considered whether MPP § 30-757.171 illegally denied protective supervision to physically impaired individuals. (Marshall, 17 Cal.App.4th at 1844, 1846.) In Calderon, the Court considered whether the petitioner, who was “completely bedridden,” qualified for protective supervision. (Calderon, 45 Cal.App.4th at 610.) To the extent either case made statements suggesting that nonself-direction is a requirement for protective supervision, such statements must be interpreted “in accordance with the facts and issues before the court.” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.) In neither case did the Court of Appeal differentiate between “nonself-directing, confused, mentally impaired, or mentally ill persons.” “An opinion is not authority for propositions not considered.’” (Ibid.)

Respondent has specifically declined to oppose petitioner’s arguments regarding non-self-direction. Respondent contends that petitioner’s arguments about non-self-direction are “a non-issue because petitioner does not meet the remaining conditions of eligibility.” (Opp. at 12:1-5.) Accordingly, it would appear that respondent concedes, as the Court here finds, that petitioner satisfies the requirement under MPP § 30-757.171 for protective supervision.

Under MPP § 30-757.173(a), petitioner must show that he requires “twenty-four-hours-a-day supervision in order . . . to remain at home safely.” “The purpose of protective supervision is to monitor active behavior in order to prevent harm from daily hazards…. [P]rotective supervision is available for those IHSS beneficiaries who … cannot protect themselves from injury, and who would most likely engage in potentially dangerous activities.” (Calderon, 45 Cal.App.4th at 616; accord Marshall v. McMahon (1993) 17 Cal.App.4th 1481, 1846-87.)

Petitioner contends that he requires 24-hour supervision based on mouthing inedible objects, i.e., putting inedible items in his mouth, and unsafe climbing.

With respect to mouthing inedible objects, the ALJ found that “the mouthing behavior does not pose a danger to the Child, as there is no reliable evidence concerning the frequency of the mouthing behavior to conclude it is a danger to him.” (AR 30; see also AR 28 [“[T]here is no reliable evidence concerning the frequency of the mouthing behavior to conclude it is a danger to the Child”].) The ALJ asserted: “[T]he IEP superficially discusses the Child’s mouthing behavior in school, which suggests it is infrequent.” (AR 28.) The ALJ also asserts that, considering the comprehensive nature of the IEP, the IEP would have provided more detail concerning petitioner’s mouthing if he was mouthing 20 times a day, as his mother contended. (AR 162.)

However, the IEP states: “Hendrix frequently puts non-food items in his mouth.” (AR 162.) Moreover, Yesenia Rivas, petitioner’s BCBA supervisor, provided 20 hours of 1:1 direct supervision of petitioner per week. (AR 127.) In a document titled “Protective Supervision Questionnaire—Therapist,” when asked whether petitioner was eligible to receive therapy due to an inability to assess danger and the risk of harm, Ms. Rivas wrote: “Yes, the Client has an inability to assess danger with behaviors related to elopement, climbing, and putting items in his mouth.” (AR 127.) Ms. Rivas also wrote that petitioner “needs more supervision [during therapy sessions than a neurotypical individual of comparable age] for caution of putting objects in his mouth.” (AR 127.) Ms. Rivas also added that petitioner “need[s] to be supervised from the start and end of the session” due to petitioner putting items in his mouth. (AR 127.) Although the IEP and Ms. Rivas did not specify the frequency of the mouthing, no set frequency is required. The mouthing must be unpredictable, as well as “frequent and long enough that constant supervision is necessary.” (RJN Ex. B at 5.) Ms. Rivas believed that petitioner has a habit of mouthing inedible objects which poses a danger to him, thereby necessitating constant supervision of petitioner.

As stated above, petitioner’s mother testified that petitioner mouthed inedible items, including coins, a broken toy, paper, and a pen, over twenty times a day. (AR 582-83.) Further, in connection with the hearing, petitioner’s mother provided a four-page behavioral log, consisting of five or six occasions of mouthing behavior from August 12 to September 12, 2022. (AR 128-31 [8/12, 8/14, 8/16, 8/17, 8/18, 8/21].) The ALJ found: “If the Child was in fact mouthing items 20 times a day, there would have been 20 entries for each of the 22 days where the Child’s behavior was being monitored.” (AR 27.) This finding is not necessarily true. The title of the log was “Examples of Potentially Self-Injurious Behaviors.” (AR 128-30.) The use of the word “Examples” indicates that the log was not necessarily all-inclusive, but rather illustrative of petitioner’s potentially dangerous behaviors. Accordingly, the fact that petitioner’s mother documented five or six instances of mouthing in the behavior log is not necessarily inconsistent with her testimony that petitioner mouths inedible objects over twenty times a day.

The ALJ also found that petitioner’s mouthing is not dangerous because he has not choked or come close to choking. (AR 30.) Specifically, the ALJ reasoned:

Moreover, if the Child were to mouth objects 20 times a day, that would mean the Child would place an inedible object in his mouth 7,300 times a year (20 x 365 = 7,300). Yet, neither in Claimant’s testimony, nor in the documentary submissions, was there mention of choking. Thus, if the Child had 7,300 occurrences of mouthing, it follows then that there must have been an incident of choking or near incident. But because there is no evidence that the Child has choked or come close to choking, the conclusion to draw is that the Child is not mouthing objects at such a rate to pose a danger. Alternatively, if Claimant is taken at her word that the Child mouths objects 20 times a day, that would mean that the Child is so adroit at mouthing objects that he has avoided choking 7,300 times per year. In either alternate scenario, there is no danger indicated.

(AR 30.) The lack of potential danger of mouthing inedible objects cannot be inferred from the fact that petitioner has not choked or come close to choking. Under the Department’s policy, “a person does not have to suffer actual injury to be eligible for Protective Supervision, but only have a history of a propensity for placing him/herself in danger.” (RJN Ex. B at 5, emphasis in original.) For example, “[a] person with a documented history of nonself-direction, who has a tendency to open the front door and start walking away, does not necessarily have to make it into the street in order for this to be considered potentially hazardous behavior.” (RJN Ex. B at 5.) Based on the Department’s policy, petitioner’s mother does not need to wait for petitioner to have almost choked before the mouthing is considered potentially hazardous behavior.

With respect to unsafe climbing, petitioner’s mother testified that petitioner climbs furniture over twelve times a day. (AR 578-80.) Ms. Rivas also observed that petitioner would “climb cabinets, shelves, and tables with the intent to jump off.” (AR 127.) In an “Insurance Treatment Plan Concurrent Review Authorization Re-Assessment Report,” petitioner was reported to have climbed at a rate of 100 instances per day. (AR 426.)

The ALJ found: “The evidence does not show that the Child’s climbing or jumping poses a danger to him. Nothing was shown that those acts are inherently dangerous. What was demonstrated was that the Child is intentionally engaged in the behavior for some entertainment value.” (AR 30.) The regulations do not specify that the danger must be inherent. Rather, the regulations state that “[p]rotective Supervision consists of observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard, or accident.” (MPP § 30-757.17.) Moreover, while regulations prohibit protective supervision for “deliberate self-destructive behavior” (MPP § 30-757.172(e)), meaning that the recipient has “knowledge that the activity may cause self-harm” (RJN Ex. C at 6-7), the fact that petitioner may enjoy climbing (AR 493) does not mean that petitioner is deliberately self-destructive. The weight of the evidence supports that petitioner is not aware of the danger of climbing furniture. Ms. Rivas reported that petitioner has an “inability to assess danger” when climbing furniture. (AR 127.)

Petitioner “attempt[s] to jump off grounds from any high objects in his surroundings.” (AR 127.) Ms. Rivas stated that petitioner’s climbing necessities supervision from the start to the end of sessions. (AR 127.) The county social worker agreed that petitioner places himself in harm or danger when he climbs on furniture at home. (AR 496.) The county social worker also found that petitioner needs 24-hour-a-day supervision (AR 496), which is consistent with the opinions of petitioner’s pediatrician (AR 125), teacher (AR 126), BCBA supervisor (AR 127), and Regional Center coordinator (AR 137,141) that petitioner requires constant supervision.

Petitioner’s mouthing of inedible objects and unsafe climbing are potentially dangerous activities. Accordingly, petitioner satisfies the 24-hour supervision requirement.

3. Weight of Evidence Supports that Petitioner Requires More Supervision Than Routine Childcare

“Protective supervision…[is] limited to protective supervision needed because of the functional limitations of the recipient. This service shall not include routine child care or supervision.” (MPP § 30-763.456(d).)

The county social worker determined that most four-year-old children are unable to assess danger and risk of harm. (AR 496.) The county social worker also concluded that climbing on furniture in the home is “not unlike those of typically-developing four-year-old children.” (AR 496.) However, according to the California Department of Education’s Guidelines for Early Learning in Child Care Home Settings, a preschool-age child “may need help” if the child “[d]oes not recognize dangerous situations such as walking in traffic or jumping from high places.” (AR 325.) Accordingly, failure to recognize the danger in jumping from high places may indicate that supervision beyond routine childcare is required. This guideline applies to petitioner, as his IEP stated that one of the impacts of his disability is impaired safety awareness. (AR 136.)

Petitioner’s teacher and BCBA supervisor agreed that petitioner requires more supervision than a typical student of comparable age. (AR 126-27.) Petitioner also participates in special education with a 2:1 teacher-student ratio. (AR 126.) Petitioner’s pediatrician stated that petitioner has “severely impaired” judgment, has “no concept of danger,” and “needs to be supervised at all times.” (AR 125.) The opinions of petitioner’s teacher, BCBA supervisor, and pediatrician outweigh the opinion of a social worker who observed petitioner for only twenty minutes. (AR 493 [social worker’s in-person assessment took place from 2:45 p.m. to 3:05 p.m.].)

Based on the foregoing, the weight of the evidence demonstrates that petitioner requires more supervision than routine childcare.

Petitioner having demonstrated that he is entitled to protective supervision, the petition is GRANTED. Respondent is ordered to set aside the Decision denying petitioner protective supervision and remand the case to Los Angeles County to authorize protective supervision to petitioner and to pay petitioner’s provider retroactive IHSS wages with prejudgment interest for services provided from the date of petitioner’s application. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and writ of mandate.

[1] Nonself-directing means that the individual is “unaware of their physical or mental problems and unable to watch out for themselves.” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 615.)