Judge James C. Chalfant, Case 20STCP04289 2022-08-23 Tentative Ruling

Petitioner Stepanie Litwin (“Mother”), as conservator and guardian ad litem for Johnathan Litwin (“Johnathan”), applies for administrative mandamus compelling Respondents Zacchary Morazzini (“Morazzini”), Director and Chief Administrative Law Judge (“ALJ”) of the Office of Administrative Hearings (“OAH”), and Nancy Bargmann (“Bargmann”), Director of the Department of Social Services (“DSS”), to set aside the decision upholding Real Party-in-Interest Eastern Los Angeles Regional Center’s (“Regional Center”) denial of Johnathan’s request to increase his Adaptive Skills Training (“AST”) hours from 75 to 125 at Progressive Resources (“Progressive”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Mother, as guardian ad litem for Jonathan Litwin (“Jonathan”), filed this Petition on December 30, 2020 against Respondents Bargmann, in her official capacity as Director of DDS, and Morazzini, in his official capacity as Director and Chief ALJ of OAH. The Petition alleges two causes of action for writ of administrative mandamus as follows.

Jonathan is a client of Regional Center diagnosed with Level 3 autism who was receiving 75 monthly hours of programming from Regional Center’s vendor, Progressive. He requested an additional 50 monthly hours. On December 18, 2019, Regional Center issued a Notice of Proposed Action denying the request.

Johnathan filed a request for hearing on February 11, 2020. Following a hearing in July and August 2020, OAH issued a decision on September 28, 2020 upholding the denial.

Petitioner Jonathan[1] seeks a writ of administrative mandate setting aside the September 28, 2020 decision denying the request to increase his monthly service hours from 75 to 125, as well as reasonable attorney’s fees and costs.

On January 14, 2021, the court rejected Mother’s application to be appointed as Jonathan’s guardian ad litem. On February 3, 2021, the court granted Mother’s renewed application.

On May 6, 2021, Jonathan served Respondent DSS with the Petition. DDS filed a Notice of Appearance and Statement of No Position regarding the merits of the Petition, objecting only to any claim against it for attorney’s fees.

On May 13, 2021, Jonathan served Respondent OAH with the Petition. OAH subsequently filed a notice of non-appearance as did Respondent Morazinni.

On June 14, 2022, the court granted Regional Center’s motion to augment the record with the Declaration of Jessica Acosta Barba and an email from Una K. Hayes-Shepard (“Shepard”). In granting Regional Center’s motion, the court denied Jonathan’s purported motion to augment contained in his opposition, indicating that he would have to make a noticed motion if he wished to augment the record.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999)20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Although Litwin cites the substantial evidence test (Pet. Op. Br. at 2), in administrative mandamus actions to review decisions affecting developmental services, the trial court exercises independent judgment on the evidence. Mason v. Office of Admin. Hearings, (“Mason”) (2001) 89 Cal.App.4th 1119, 1130.

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.” Id. at 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. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n 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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Lanterman Developmental Disabilities Act, W&I Code[2] §§ 4500-4845 (“Lanterman Act”) is a comprehensive statutory scheme intended by the Legislature “to provide a ‘pattern of facilities and services . . . sufficiently complete to meet the needs of each person with developmental disabilities, regardless of age or degree of handicap, and each stage of life.” Association for Retarded Citizens-California v. Dept. of Developmental Services, (“Association”) (1985) 38 Cal.3d 384, 388 (quoting §4501). “Such services include locating developmentally disabled persons, assessing their needs, and selecting and providing services to meet disabled persons’ needs on an individual basis.” Id. at 388 (citing §§ 4641-43, 4646, 4647).

To implement the scheme of statutory rights of developmentally disabled persons and the corresponding obligations of the state towards them, the Legislature has fashioned a system in which both state agencies and private entities have functions. DSS, a state agency, “has jurisdiction over the execution of the laws relating to the care; custody, and treatment of developmentally disabled persons.” §4416.

Regional centers are established and operate under the provisions of the Lanterman Act. §4500 et seq. Each regional center is a separate non-profit corporation that has a contract with DSS to assess individuals for eligibility and to provide services to those eligible and residing in a particular geographical area known as a “catchment area.” §§ 4416, 4620, 4621, 4640(a).

Regional centers serve those with a “developmental disability” as that term is defined by law. §4512(a) & (l). A “developmental disability” is a condition that exists prior to the age of 18 years old, is expected to continue indefinitely, and is a substantial disability for the individual. §4512(a). Autism is included in the definition of “developmental disability.” §4512(a).

DSS’s regulations further define a “developmental disability” as a disability attributable to mental retardation (now intellectual disability), cerebral palsy, epilepsy, autism, or disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation. 17 CCR §54000(a). The developmental disability shall (1) originate before age 18, (2) be likely to continue indefinitely, (3) constitute a substantial disability. 17 CCR §54000(b). The Lanterman Act defines a “substantial disability” as the existence of significant functional limitations in three or more of the following areas: (1) self-care; (2) receptive and expressive language; (3) learning; (4) mobility; (5) self-direction; (6) capacity for independent living; and (7) economic self-sufficiency. §4512(l)(1). Excluded from the definition of “developmental disability” are conditions that are solely psychiatric disorders, solely learning disabilities, or disabilities that are solely physical in nature. 17 CCR §54000(c).

The purchase of needed services for developmentally disabled individuals is one of the obligations the Lanterman Act imposes on the regional centers. “Under the statutory scheme, the regional centers provide services to developmentally disabled persons and determine the manner in which those services are to be rendered.” Association, supra, 3 Cal.3d at 389. To determine whether an individual believed to have a developmental disability is eligible for services, a regional center conducts an initial intake and an assessment to determine if the individual has a developmental disability. §§ 4642-43.

Each eligible individual has a regional center service coordinator assigned to them and an individual program plan (“IPP”). §§ 4646, 4646.5, 4647(a). The IPP is developed through a process of individualized needs determination. §4646(b). The IPP includes agreed-upon goals and objectives and services and supports, whether from generic resources or funded by the regional center, needed to assist the individual in attaining those goals and objectives. §§ 4646-48. The IPP and provision of services and supports is intended to be centered on the individual and the family and “takes[] into account the needs and preferences of the individual and the family, if appropriate, as well as promoting community integration, independent, productive, and normal lives, and stable and healthy environments.” §4646(a). The services should “be effective in meeting the goals stated in the individual program plan, reflect the preferences and choices of the consumer, and reflect the cost-effective use of public resources.” Ibid.

The IPP includes a “schedule of regular periodic review and reevaluation to ascertain that planned services have been provided, that objectives have been fulfilled within the times specified, and that consumers and families are satisfied with the individual program plan and its implementation.” §4646.5(a)(8). A review must occur, as necessary, “in response to the person’s achievement or changing needs, and no less often than once every three years.” §4646.5(b). An individual or authorized representative can ask for an IPP meeting at any time and one must be held within 30 days. Ibid.

The Lanterman Act contains limitations for regional center funding of services. See §§ 4646.4, 4646.5(a)(4), 4648(a)(8), 4659. Regional centers do not provide direct services, but instead use service providers that meet certain qualifications to be “vendored” by a regional center to provide particular services. §4648(a)(3)-(6). A service or support provided by an agency or individual shall not be continued unless the consumer or, if appropriate, the consumer’s parents, legal guardian, or conservator, or authorized representative is satisfied and the regional center and the consumer or, if appropriate, the consumer’s parents or legal guardian or conservator agree that planned services and supports have been provided, and reasonable progress toward objectives have been made. §4648(a)(7).

If there is a dispute over services funded by the regional center, the regional center consumer is entitled to an administrative appeal known as a “fair hearing.” §§ 4710-14.

Jonathan was born on October 30, 1995. He was 26 years old as of the fair hearing. AR 1413. Jonathan has autism spectrum disorder, and according his IPP, he demonstrates aggression and emotional outbursts while having tantrums. AR 1419. Although he can repeat words back to people to greet them, he is non-verbal and communicates mostly through sounds and gestures. AR 1419.

Johnathan lives with his parents and siblings. AR 1415. Mother is Jonathan’s limited conservator with the ability to fix his residence, access confidential records and papers, consent or withhold consent to his marriage to or registered domestic partnership with another, control his right to contract, consent or withhold consent to medical treatment, control his social and sexual contracts and relationships, and make decisions as to his education. AR 31, 33.

Regional Center provides Jonathan with in-home/community individual service skills training, respite services, personal assistance, counseling, and autism special psychiatry services. AR 725-26, 1414. Jonathan has a Medicaid waiver compelling the federal government to pay half the cost of services to the state’s government. AR 83.

Until aging out at 22 years old, Jonathan attended the Buena Park Speech and Language program (“Buena Park”). AR 397, 846.

On November 29, 2017, while Jonathan still attended Buena Park, clinical psychologist Randi Bienstock (“Bienstock”) evaluated him. AR 396. Bienstock’s report listed the range of services Jonathan received: specialized academic instruction in a non-public school setting, intensive individual services, speech therapy, counseling and guidance, work experience and vocational training, transition services, and transportation. AR 397. Before he entered the Buena Park program, Jonathan’s parents had observed that he had regressed in some known skills such as bladder control during high school, and they questioned whether he received adequate support. AR 397. However, they were pleased at the level of support and services Buena Park provided. AR 397.

A month after he left Buena Park in December 2017 – and after a year of searching for a new program – Jonathan started at REACH, a community integration program, five days a week. AR 397, 846-47. His parents wanted Jonathan to have 1:1 support at all times and that staff are trained in the use of facilitated communication. AR 397. After seven months at REACH, Jonathan’s aggressive behavior and incidents of elopement compelled REACH to conclude it could not provide a safe program for him. AR 752. According to Jonathan’s clinical psychologist Rodric Rhodes (“Rhodes”), Jonathan’s more aggressive behavior coincided with a change in the direct service provider who worked with him. AR 922, 928-29.

After Jonathan left REACH, Regional Center Service Coordinator Venessa Grande (“Grande”) increased his personal assistance hours to 60 to support his family in the interim period before a day program could be found. AR 384, 767-68. Personal assistance services provide the beneficiary with assistance with completing tasks at home and in the community. AR 746-47. Grande also increased Jonathan’s hours of AST at Progressive. He had been receiving five hours a month of AST from Progressive to assist in developing appropriate behaviors, social skills, and safety skills while out in the community. AR 689. Grande increased Jonathan’s Progressive hours to 75. AR 965.

On October 24, 2019, Grande and Mother met for Jonathan’s IPP. AR 1415. The IPP noted that Jonathan exhibits aggressive behaviors such as emotional outbursts and non-compliance when he cannot communicate his needs, which he best does with a computer. AR 1416. He requires varying levels of support to initiate his communication, with assistant helping him from his forearm to his shoulder. AR 1415.

Regional Center identified Choices as an option for community activity support, but he never attended it. AR 755.

Regional Center also identified Real Connections as a candidate and offered 50 monthly hours to Johnathan. AR 74, 965. Jonathan received Real Connections service beginning in December 2019, but they ended a month later in January 2020 due to its inability to support his aggressive and destructive behavior. See AR 692.

In a March 23, 2020 report, Progressive noted that it had attempted to introduce Jonathan to group setting and had observed him independently attempt to communicate with peers. AR 320, 328. He had also stopped, turned towards the specialist with whom he works, and pointed at an item with which he wanted to engage. AR 328. Progressive planned to have Jonathan type with peers during communication workshops and receive and send non-verbal cues. AR 328.

Mother requested that Regional Center increase Jonathan’s AST hours at Progressive from 75 to 125 hours per month, an increase of 50 hours and an average of about six hours per day for a five-day week. AR 434. Jonathan’s parents planned to use the additional hours for Jonathan to (1) attend a cooking class and shop for the necessary ingredients to increase self-reliance; (2) exercise at the gym three times per week; and (3) use public transportation with staff support. AR 434.

Regional Center reviewed Jonathan’s quarterly progress reports, which showed skills levels in the respective goals as follows: (1) 3.8, 3.5, and 3.5 after the second quarter of 2017; (2) 4.0, 3.6, and 3.7 in August 2018; (3) 4.3, 3.8, and 3.8 at the end of 2019, along with 2.2, 2.3, 1.0, 2.1, and 2.0 in newly added goals; and (4) 4.4, 3.9, 3.9, 2.4, 2.3, 1.5, 2.1, and 2.0 after the first quarter of 2020 – all out of 10. AR 408-11, 415-17, 422-28, 437-43. Each report also included a description of the interactions and observations underlying those scores. See, e.g., AR 1479-85.

Regional Center denied the request. On February 13, 2020, Mother filed a fair hearing request for the denial of the additional 50 hours from Progressive. AR 11.

At the informal meeting required prior to the administrative hearing, Regional Center offered funding with Progressive which would begin at the requested 125 hours per month for three months but be reduced by ten hours each subsequent month while Jonathan transitioned to another program. AR 772-73, 787-88. The offer did not resolve the issue.

OAH held the hearing on July 14 and August 13, 2020. As evidence, Regional Center attached Progressive’s comprehensive AST program design manual, which includes the training requirements for the staff. AR 1487, 1497. The design manual states that Progressive staff is well-versed in research on a variety of disciplines and theories and undergoes substantive hands-on training, often in addition to a university degree. AR 1497.

When Jonathan joined REACH, the staff spent over a month finding and training a staff member to work one-on-one with him. AR 752. Its one-on-one support structure and ability to take Jonathan out to mingle with the community made its program ideal. AR 752. However, after seven months, his aggressive behavior and incidents of elopement compelled REACH to conclude it could not provide a safe program for him. AR 752.

Regional Center provided 60 hours per month at Progressive after Jonathan left REACH. In making this determination, Regional Center considered Mother’s work schedule, Jonathan’s program availability, and the hours of support that Progressive provided. AR 742.

After Jonathan left REACH, Mother wanted a program that would provide facilitated communication for him. AR 755. One option, Choices, is not a day program but it provides community support. AR 755. Jonathan never attended it. AR 755. He attended another alternative, Real Connections, for less than a week. AR 755.

Progressive is not a day program, but rather an AST which focuses on teaching skills to a recipient. AR 743. A day program provides support through personal assistance to help a recipient finish tasks at home or access the community. AR 743, 747. If Jonathan attended Progressive for six hours per day, it would appear as a day program. AR 743. Mother told Grande that at-home Personal assistance for Jonathan is mostly just supervision and Grande was not sure if it helped him finish activities at home. AR 747.

Grande objected to increasing Jonathan’s AST hours at Progressive to 125 hours because it is a skills training service and is not meant to be a day program service. AR 764.

In preparing the Notice of Action in response to Mother’s request for additional AST hours, Regional Center employee Lilia Ortega (“Ortega”) detailed the alternative services available to meet Jonathan’s needs – a combination of Personal assistance, AST, and other community services. AR 772. Ortega proposed that Regional Center initially pay for three months of 125 hours each of AST through Progressive, then reduce the payment by ten hours per month until the current 75 hours per month was reached. AR 773. The goal was to find a more suitable service in between Mother’s request and the current hours. AR 773.

Another option was to combine services from different providers – cross-training – but Ortega did not know of any agencies who could do that. AR 801.

AST services like Progressive are meant to be hourly, time limited, skill building, and transitory – phased out as the recipient masters the skills taught. AR 776, 800. Providing these supports with extensive hours creates more dependence than independence. AR 800.

Regional Center monitors skills development through the quarterly reports on set goals. A score of eight means the recipient is ready to transition. AR 777-79. Jonathan’s goals included increasing his communication, increasing his ability to co-regulate with various environments, and increase his independence and ability to complete tasks. AR 778. Based on the quarterly reports, Jonathan has shown minimal improvement. AR 783-84. This suggests that he may need to try something different than the current plan. AR 783-84, 800. The base 75 hours are not in dispute in this appeal – only the use of an additional 50 to turn Progressive’s AST into a day program. AR 798-799.

As a Regional Center Speech language consultant, Brittany Berg (“Berg”) helps determine eligibility, works with agencies that need help purchasing equipment for the programs, and coordinates with program supervisors. AR 807.

Facilitated communication is an alternative form of communication for use with individuals with limited speech capacity. AR 808. It refers to a situation where another person helps the individual through physical or emotional support, such as through contact with the shoulders or hands. AR 808. The American Speech Language Hearing Association and other groups have discredited this technique on the ground that facilitated communication compromises the veracity of the message transmitted; it communicates what the facilitator wants to communicate and not the speaker. AR 810, 812, 852.

Bienstock is Regional Center’s consulting psychologist. See AR 817. He evaluates recipient eligibility based on psychological evaluations. AR 817. Because facilitated communication is not evidence-based, he informed Jonathan’s parents that evaluations based on it are not valid. AR 822-23. The primary concern is that it can make the subject appear capable of doing things that he or she cannot, resulting in decreased support approval. AR 824.

Because Bienstock could not use facilitated communication and had no direct measurement of Jonathan’s academic performance, he was unable to assess Jonathan’s cognitive ability to his unresponsiveness and lack of records. AR 821. He found that Jonathan needed substantial support regarding social communication and restrictive repetitive behavior, including impulsive behaviors that could pose a safety risk. AR 825.

Jonathan, who is 24, lives with her. AR 831. His pediatrician, Ricki Robinson M.D. (“Robinson”), diagnosed Jonathan with autism at 30 months. Mother considers it severe, likely level three. AR 831-32. The family tried helping him from a young age, starting with ABA therapy from ages three to seven for 35 to 40 hours a week. AR 831. During this time, Jonathan relied on one-word communication and picture exchange communication where pictures were all over the house for him to grab and show others that’s what he wanted to talk about. AR 832-33. Even this was imperfect; his poor motor skills often made him grab the wrong picture. AR 833.

When Jonathan was seven, Robinson recommended that he work with a speech therapist, Darleen Hanson (“Hanson”), who introduced his parents to facilitated communication. AR 832. The resulting improvement was amazing, beyond the results of the treatment Jonathan underwent with UCLA at the time. AR 834-35.

Before he was eight, the family consulted with Hanson and decided to move to Whittier so that Jonathan could attend public schools that have experience working with autistic kids. AR 837. At the time, getting a stranger to help with facilitated communication required training and practice, and Jonathan’s siblings were never the right age to do so. By the time his younger sister was ready, he was old enough to hurt her. AR 839. Facilitated communication is a lot of work. AR 839.

In middle school, Jonathan’s frustration made him more aggressive such that it was too dangerous for Mother to continue typing with him. AR 966. Only Rod Rhodes (“Rhodes”) can do so now, although Mother hopes that someday she can go back to typing with Jonathan herself. AR 967.

When Jonathan first received 75 monthly hours with Progressive, the plan was to spend an additional 50 with Real Connections. AR 965. Jonathan first started with Real Connections in January 2020 after months of assessment and waiting for staffing capacity. AR 1998-99. Real Connections proved to be poorly prepared for him compared to REACH. AR 965. After spending only three hours a day with Jonathan and returning early each time, the staff member reported that Jonathan was too aggressive and refused to work with him. AR 2000.

Real Connections used facilitated communications on the forearm with Jonathan and for years before. AR 965-66. Mother questioned why Regional Center challenges the practice now even though Progressive has been providing it since he was seven and Jonathan attended many facilitative communication conferences at Regional Center’s expense. AR 966, 973.

Jonathan’s peers are receiving full-day programming, and Jonathan should not be denied that on the basis that he is too aggressive. AR 2004. Having too much downtime makes him more likely to fall asleep during the day and stay awake at night. AR 2005. His parents have to sleep in separate rooms to keep watch over him, and they are sleep deprived when trying to work and care for the other children. AR 2005.

Robinson is a pediatrician. In 1998, Jonathan was one of the first patients in Robinson’s then-fledgling practice. AR 871. Jonathan needs support, but not a residential program, for ten hours a day. AR 1917. If left to his own devices, he will pick his favorite things to do and stay with them – not an ideal situation. AR 1912.

In 2019, Robinson received reports from Progressive that Jonathan could go out to eat, shop at malls, communicate why he went where he did, and think about how to use money – all things Robinson wants Jonathan to learn to do on a regular basis. AR 1915.

Rhodes is Jonathan’s therapist with whom he has weekly therapy sessions. AR 405. Augmentative communication uses tools such as picture boards and cards to support the sensory motor system of the individual. AR 882, 1918. Facilitative communication is a means of prompting language from an autistic person. AR 882. The person gives input to the recipient at their wrist, arm, or elbow. AR 882. It is a useful alternative to using the spoken word to prompt a child with autism to speak, which did not work with Jonathan because he could only say single words at a time. AR 882, 1918. Admittedly, the results are still anecdotal rather than scientific evidence after 25 years. AR 898-99. However, this is just because psychologists struggle to obtain the funding for evidence-based work to prove it. AR 899.

Since starting AST at Progressive, Jonathan’s sleep patterns have improved and his aggressive behavior indicating stress decreased. AR 936-37. His aggressiveness decreased gradually in the months prior to the hearing. AR 937-38. While he was calm when he spent the day alone at home without human interaction, that is not helpful for community participation. AR 938.

Shepard is the executive director of Progressive, which serves individuals with developmental disabilities from as young as three years old, including AST for autistic patients like Jonathan. AR 985-86.

Progressive’s staff must typically have at least a bachelor’s degree, although many have master’s degrees and Progressive does hire those without a degree who meet other criteria. AR 986. Those without a bachelors’ degree receive three extra months of training before they receive their own caseload. AR 2023.

Progressive trains its staff to use a transdisciplinary approach, which allows a professional to draw from areas outside of its expertise when meeting with clients whose mental health issues have caused other issues. AR 989. The community Progressive serves – not just those with autism – benefit from such an approach. AR 2029. The intensive nature of the training also means that Progressive needs to have staff trained to anticipate staff turnover. AR 997. Each employee also receives training specific to each new case. AR 998.

Courtney Wakeham was responsible for both training of other staff and Jonathan’s case. AR 997. Jonathan currently receives 2:1 support, with plans to transition to 1:1. AR 1030. When he goes into the community, Jonathan suffers from sensory overload and is trying to prevent that from triggering a fight-or-flight response from his compromised motor primary system – a common problem for those with autism spectrum disorder. AR 2040-41.

One hour a week spent in the community can improve Jonathan’s condition, but it will not suffice. AR 1025. At the same time, Progressive does not intend to keep Jonathan in an individual program forever. AR 1025. Jonathan needs to spend some time receiving one-on-one AST training before increasing community time to the full 2.5 hours per week; how much training will be required is unclear. AR 1028.

When Jonathan is not busy, he sleeps during the day and stays awake at night while he becomes more aggressive. AR 999. An increase in AST time from 75 to 125 hours would allow him to work on skills for longer and build his stamina but take breaks in between. AR 999. Additionally, to the extent that Jonathan’s and the family’s well-being affect each other, an increase in hours would give his family a break and time to live their lives so they can focus on him when necessary. AR 1002.

Although this time commitment would mean that Progressive doubles as a day program, it has before and is willing to here unless Jonathan finds a suitable day program. AR 1027-28. Shepard is not sure for how long this will be necessary, but more than a year. AR 1027.

On August 20, 2020, Regional Center submitted its written closing argument to answer questions posed by the ALJ. AR 74. The brief identified the costs of each program as $79.70 per day for REACH, $52.40 per hour for Real Connections, $33.09 per hour for CHOICESS, and $150.80 an hour for Progressive. AR 74.

On September 28, 2020, the ALJ issued a decision denying Jonathan’s claim. AR 707. The ALJ framed Mother’s position as that an increase from 75 hours to 125 hours per month of AST at Progressive is necessary for Jonathan’s progress in adopting to a daily routine that leads to an independent and normal life. AR 687. Regional Center’s objection to Mother’s request for 50 more AST hours was based on a concern that Progressive’s program was not an effective means of ensuring that Jonathan learns how to interact positively with members of the community. AR 688.

The ALJ discussed Jonathan’s background, including Mother’s report in his IPP that he had tantrums daily when told to do something he does not want to or otherwise unable to communicate. AR 688. Progressive is not a behavior management agency that could adequately address these behaviors. AR 689. Mother declined behavior management services, stating that she is satisfied with his progress in Progressive. AR 689.

Jonathan was approved for services at REACH at 130 hours per month but was terminated in July 2018. AR 690-91. Following the termination, Grande researched other programs, but they were limited because Mother wanted an agency that would support facilitated communication and Jonathan’s aggressive behaviors. AR 691. Mother did not want an agency that would treat behavior management and was satisfied with Progressive. AR 691. Regional Center increased Progressive’s AST support to 25 hours as a temporary support program. AR 691.

In June 2019, Jonathan was referred to Real Connections and Regional Center funded an additional 50 hours of service through Progressive while services through Real Connections was pending. AR 692. Those services began in December 2019 but were terminated a month later because of Jonathan’s aggressive and destructive behavior. AR 692.

Jonathan has been receiving AST services from Progressive since he was seven years old. AR 692. The progress reports during the period from 2017 through 2020 show little improvement (AR 692-96, 699) but Shepard testified that Jonathan is far more capable of doing things than he was in 2018. AR 697. According to a Progressive supervisor, an additional 50 hours would allow Jonathan to engage in a variety of tasks at which he excels. AR 697. When he limited to a meeting for a short time per day, he is not getting “fluid participation” in the program. AR 697.

According to Regional Center, the purpose of an adult day program is to provide the recipient with support that allows him or her independence and access to the community. AR 698. In contrast, AST provides the recipient with training on different behavior modification techniques. AR 698. Ortega testified that Jonathan already has a high level of AST hours and an increase to 125 hours per month would duplicate a day program, which Progressive is not. AR 698. Additionally, high AST hours can result in dependency. AR 698. AST is a skill building service and should decrease, not increase, as skills are acquired. AR 699.

Robinson believes that Jonathan’s communication abilities can be fully accessed through facilitated communication, although she acknowledged that it is not an accepted modality. AR 699. Rhodes testified that he has provided weekly psychotherapy to Jonathan since 2008 and the lack of a full-time day service program has resulted in negative consequences for Johnathan. AR 700. Jonathan’s aggressive is a form of communication and that aggression has gradually decreased since Progressive has been providing extra hours. AR 700. He recommends a full-time program of approximately 30 hours per week. AR 700.

Mother testified about her difficulties in obtaining adult day services and her interactions with REACH and Real Connections. AR 701. Jonathan has been using facilitated communication in a variety of therapies and now types with Rhodes in which Mother can have good conversations with him. AR 702. She feels that he is being denied a full day program because he is too aggressive, but he is less aggressive with proper supports. AR 702.

The ALJ noted that the individual requesting services or government benefits has the burden of proving eligibility. AR 703. Although an IPP must reflect the needs and preferences of the consumer, a regional center need not provide all the services a consumer requests. AR 704. Services must be cost effective (§4512, 4646(a)) and regional centers must control costs as afar and possible to share resources with many consumers. AR 704. A regional center is not required to meet a consumer’s every possible need or desire, in part because it must meet the needs of many disabled persons and their families. AR 705. A regional center has discretion in determined which services it should purchase to best accomplish the IPP’s goals. Williams v. Macomber, (1990) 226 Cal.App.3d 225, 233. AR 705. The ALJ relied on section 4689(e) to provide that a regional center should monitor and ensure quality of services and whether they are having the desired effect. AR 705.

The fact that Jonathan has been without a day program since July 2018 does not on its own merit increasing his AST hours from 75 to 125 per month. AR 706. Mother’s insistence on a program that uses facilitated communication – a non-evidence-based treatment modality-- as well as Jonathan’s aggressive behavior, was partially responsible for the lack of a day program, despite Regional Center’s best efforts to find one. AR 706. Regional Center had been providing Jonathan with temporary increased AST hours as well as personal assistance while it tried to find a vendor who would do both. AR 706.

The progress reports show that Progressive had not helped Jonathan make much progress towards the three goals identified from June 1, 2017 thereafter or the five added at the end of August 2018. AR 706-07. Robinson testified that the right program could help Jonathan change, and Jonathan’s minimal progress with Progressive showed that it was not the right program. AR 706-07.

Mother did not meet her burden to establish that 50 additional AST hours are necessary or appropriate. AR 707.

On October 18, 2021, Progressive’s owner and CEO Shepard sent an email to various employees of Regional Center. Barba Decl., ¶3, Ex. 2. The two letters attached to this email announced that Progressive was terminating all services and permanently closing on November 30, 2021. Barba Decl., ¶3, Ex. 2. As a result, Progressive no longer provides services to Regional Center clients. Barba Decl., ¶4.

On May 17, 2022, Regional Center’s counsel learned of Progressive’s closure and informed Jonathan’s counsel. Ocheltree Decl., ¶¶ 4-5. On May 19, 2022, Jonathan’s counsel replied that Jonathan would not request dismissal of the Petition. Ocheltree Decl., ¶5.

Petitioner Jonathan seeks to set aside the ALJ’s decision affirming Regional Center’s denial of Mother’s request to increase his Progressive AST hours from 75 to 125 hours per month.

Jonathan’s opening brief does not present a full and fair statement of facts with citations to the Administrative Record as required by the court’s order at the trial setting conference and LASC 3.231(i)(2). Under the heading “Factual, Legal and Procedural Background”, Jonathan includes few facts and only two citations to the Record. Pet. Op. Br. at 3-4. Under the heading “Respondent’s Reasoning Does Not Rise To The Level of Competent And Measured Inquiry Into the Current Case,” Jonathan includes only three citations to the Record. Pet. Op. Br. at 4-5. Under the heading “Respondent Lacks Facts to Support Claim that Petitioner Failed to Meet His Burden”, Jonathan includes a total of nine citations to the Record. Pet. Op. Br. at 5-7. Finally, under the heading “Respondent Contravenes Statutory Protection and Judicial Interpretation of Case Law”, he includes a total of 12 citations to the Record. Some of these citations are either incorrect or to immaterial parts of the Record.

Nowhere does Jonathan present a full and fair statement of facts supported by adequate citations to the Administrative Record. When a petitioner challenges an administrative decision as unsupported by the record as a whole, it is the petitioner’s burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. The petitioner is obligated to lay out the evidence favorable to the other side and show why it is lacking and the "[f]ailure to do so is fatal" to any substantial evidence challenge and "is deemed a concession that the evidence supports the findings Defend the Bay v. City of Irvine, (2004) 11928 Cal.App.4th 1261, 1266. The reviewing court should "not independently review the record to make up for appellant's failure to carry his burden." Ibid. A recitation of only the part of the evidence that supports the petitioner’s position is not the “demonstration” contemplated by this rule. According, if a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881).

Jonathan’s failure to fully present and cite to the facts as required means that he has waived any claim that the evidence does not support the ALJ’s findings. The Petition must be denied for this reason.

On June 14, 2022, the court granted Regional Center’s motion to augment the Administrative Record with a declaration and an email. In doing so, the court denied Jonathan’s effort in his opposition to augment the Record with additional evidence, indicating that he would have to make a noticed motion if he also wished to augment the Record.

Jonathan never made a noticed motion to augment. Instead, his reply includes an attempt to revive the motion to augment. Reply at 1-3. Even if that were considered as a properly noticed motion, the reply does not include the evidence Jonathan wants to add to the record. No declarations or exhibits are attached to the reply.[4]

Jonathan’s failure to make a separate noticed motion as directed with appropriate notice under CCP section 1005 means that it must again be summarily denied. In any event, the mootness discussion post demonstrates that the request would be ineffectual.

“Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509. "The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief." Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541.

A court should not dismiss a case as moot if a substantial issue remains. Terry v. Civil Serv. Comm’n, (1952) 108 Cal. App. 2d 861. A case is not moot where, despite the happening of a subsequent event, there remain material questions for the court’s determination that impact a party’s future and contingent legal rights. Eye Dog Foundation, supra, 67 Cal.3d at 541. In other words, a case is moot only where the disposition of the case is “a matter of indifference to the parties” -- where disposition of the case will neither benefit the plaintiff nor harm the defendant. Turner v. Markham, (1909) 156 Cal. 68, 69.

Jonathan’s Petition is about the ALJ’s denial of an increase in his hours at Progressive, not some general increase in hours at any vendor. Mother’s fair hearing request explicitly stated that Jonathan seeks “an approval of the hours requested (125 hours/month) with Progressive....” AR 11 (emphasis added.) The ALJ stated that the issue was “[w]hether the service agency should increase funding for services provided to [Jonathan] by Progressive... from 75 hours to 125 hours.” AR 685 (emphasis added). The evidence presented at the administrative hearing, and the ALJ’s decision, concerned Regional Center’s denial of an increase in funding of AST services with Progressive in part because Jonathan needs a day program for community support, Progressive provides skills training, and Progressive had not helped Jonathan make much progress towards his IPP goals. AR 706-07. Finally, Jonathan’s Petition for the court to issue a writ ordering the ALJ to set aside the final decision and increase the hours at Progressive from 75 hours to 125 hours. Pet., p. 7.

As Regional Center argues, this issue is moot. On or about May 17, 2022, Regional Center’s counsel learned that Progressive’s owners retired and the business closed on November 30, 2021. Ocheltree Decl., ¶ 4; Acosta Barbra Decl., Ex. 2. Progressive stopped providing services to individuals served by Regional Center on that date. Acosta Barba Decl., ¶4. Opp. at 1-2. Thus, the court cannot order the relief Jonathan seeks. That is, the court cannot order the ALJ to set aside his decision and order Regional Center to provide Jonathan with additional hours of service at Progressive.

As stated ante, Jonathan attempts to augment the record in his reply brief. Reply at 1-3. He criticizes Regional Center for failing to report that his parents advocated and worked with Regional Center to vendor a program, Connections Family Services (“Connections”), that would operate as closely as possible to Progressive. Reply at 1. Jonathan argues that his lawyer was muted on Court Call at the hearing on Regional Center’s motion to augment, and the court appears to have abused its discretion. The court knew or should have known that Regional Center did not present all the facts, and Jonathan poses a possible remedy of giving Jonathan a shorter period to answer the motion under CCP section 1005(b). Reply at 1-2.

The court has no idea what Jonathan is talking about. The court heard and granted Regional Center’s motion to augment. Jonathan tried to augment the record as part of his opposition to Regional Center’s motion. That was improper and his request was denied. However, he was informed that he could make his own noticed motion to augment. He did not do so. These facts have nothing to do with Regional Center’s counsel’s duties to fairly present evidence.

Jonathan contends that the information about Progressive’s closure provided by Regional Center and his own information about a replacement program at Connections are both valuable for the court’s decision. It is an important fact that Progressive is closed, but it is more important that Regional Center has approved another program. Regional Center’s argument that the case is moot ignores the relationships among Regional Center, Connections, the group of parents, and Jonathan. Reply at 2.

Not so. As Regional Center’s opposition to the motion to augment states, administrative remedies have not been exhausted on whether Jonathan should have increased hours at another program such as Connections. Opp. at 5. Connections may be an approved vendor of Regional Center, it may be comparable or better than Progressive in providing AST hours, and it may also solve the problems that Progressive was a training and not a daytime community support program, and that facilitated communication coupled with Jonathan’s aggressiveness made providing him a day program difficult. Whether Connections can resolve these issues is unknown, but the closure of Progressive does not permit Jonathan to avoid an administrative hearing on these issues.[5] The case must be dismissed as moot.[6]

If arguendo Jonathan’s procedural failure did not require dismissal and the case is not moot, the ALJ’s decision is supported by the weight of the evidence.

Regional Center contends that a 1991 opinion from Regional Center’s lawyer to its director in the Record is privileged. The letter states that the term “entitlement” in the Lanterman Act means that developmentally disabled individuals are entitled to the development of an IPP which meets all of their needs and to the provision of all services to meet those needs. AR 100-05. The letter cites the California Supreme Court’s assertion that the legislative intent of the Lanterman Act is to assist the disabled “in achieving their maximum developmental potential.” AR 103 (citing Conservatorship of Valerie H., (1985) 40 Cal.3d 143, 159).

Jonathan argues that this letter is evidence “suggesting that regional center staff have difficulty understanding the legislative intent expressed in Welf. & Inst. Code §4501.” Pet. Op. Br. at 8. Regional Center argues that the letter is protected by the attorney-client privilege (Evid. Code §§ 952, 954) and Jonathan’s counsel had an ethical duty not to maintain or use a copy of the document. See Clark v. Superior Court, (2011) 196 Cal.App.4^th 37, 48. A non-lawyer, Jacob Romero (“Romero”), represented Regional Center at Jonathan’s hearing whereas Jonathan was represented by legal counsel. Romero could not be expected to object to the letter as protected by attorney-client privilege. When asked by the ALJ if he objected to any of Jonathan’s exhibits, Romero confusingly stated that he would like OAH to take judicial notice of three exhibits that included the letter because “they don’t appear to be directly relevant or actual documentary evidence”. AR 720.

The court need not decide whether Jonathan’s counsel breached his ethical obligation in presenting this very old letter because the court does not know how and when he obtained it and, more important, the ALJ did not receive the letter into evidence. AR 100, 1948. Hence, the court has not considered it.

Jonathan notes that the ALJ cited section 4689(e) to support his findings. AR 705-06. This provision applies to Supportive Living Services (“SLS”) for adults with disabilities living in homes that they own or lease, and not developmentally disabled persons living with their parents. It does not apply to training programs such as AST. This substantial gaffe brings a question to the fore. Does the ALJ not know the difference between an adult with autism living by himself and living with his parents? Jonathan acknowledges that this gaffe may not necessarily be material, but it brings into question the ALJ’s competent grasp of the subject matter and what is important in making decisions regarding regional center clients. Pet. Op. Br. at 7-8; Reply at 3-4.

As Regional Center points out and Jonathan admits, the ALJ’s error of law is not material. The ALJ cited the SLS statute, which applies to adults with developmental disabilities living in their own home or apartment (§4689) even though Jonathan does not receive SLS. But the quoted provision (§4689(e)) pertains to the regional center’s obligation to assure the quality of SLS provided to the recipient and that the services are consistent with the individual’s IPP. §4689(e).

The Lanterman Act elsewhere requires that the regional center may (1) purchase services or supports that it and the consumer determine will best accomplish the IPP (§4648(a)(3)), (2) consider the provider’s ability to deliver the quality services or supports that can accomplish the objectives of the consumer’s IPP (§4648(a)(6)), (3) monitor services and supports with or without notice (§4648.1), and (4) not continue a service or support unless the consumer is satisfied and the regional center and the consumer agree that the services or supports have been provided and that reasonable progress toward objectives has been made (§4648 (a)(7)). See Opp. at 12. These obligations are similar to those referred to by the ALJ, and the error was not significant.

Jonathan correctly argues that the Lanterman Act requires that regional centers and their staff assist regional center clients and their families in living a normal life, including the use of state funding to do so. See Pet. Op. Br. at 3. “It is the intent of the Legislature that regional centers assist person with developmental disability and their families in securing those services and supports which maximize opportunities and choices for living, working, learning, and recreating in the community.” §4640.7. The legislative history of the Lanterman Act shows a Senate resolution “[t]hat such opportunity for normalization is the birthright of every citizen and a proper investment for the good of society.” AR 93.

Jonathan notes that he attended regular classes with special education services in elementary school, middle school, and high school. Because of his autism, he was unable to earn a diploma, and he ended up attending a special education transition program at a special education center. In a well-planned transition, a special education student who ages out of special education at the age of 22 will move into a regional center-funded program with no gap in services. However, Regional Center was unable to identify a program that could meet his needs, which include severe communication deficits and severe deficits in socialization. Pet. Op. Br. at 3.

Regional Center assisted Jonathan by funding two day programs, REACH and Real Connections, which ultimately failed to assist him in acquiring the ability to live, work, learn, and recreate in the community. Both terminated him from their program because of his aggressive behaviors and communication impairment. Regional Center also assisted Jonathan by increasing his Progressive hours to give him the opportunity to access the community. However, Regional Center has cut short its investment by denying him the additional 50 hours per month that can give him the opportunity to more forward to a next level day program. Pet. Op. Br. at 4.

According to Jonathan’s IPPs (AR 270, 384),[7] Progressive is a temporary program. Progressive’s director, Shepard, testified that Jonathan’s path at Progressive is to move into a community group of six peers at Progressive on a daily basis. For Petitioner to transition from the 1:1 program, he first needs to be able to act more independently and to be able to function with his peers. Attempts have been made to insert him into the community group. AR 2022-42, 320-33. Pet. Op. Br. at 4.

The ALJ noted that Progressive’s AST program is not an adult day program that is intended for Jonathan to become independent and participate in the community. AR 698. Progressive is an AST program that provides the recipient with training on different behavior modification techniques. AR 698. Nonetheless, Mother insisted that any service provider provide facilitated communication, thereby limiting the number of service provider options for meeting Jonathan’s needs. Facilitated communication is not an evidence-based program. AR 698.

Jonathan argues that Mother wanted Progressive because it was an agency that would accommodate both facilitated communication and his aggressive behaviors and she was satisfied with Progressive. Mother’s request was based on Jonathan’s experience with facilitated communication. Mother testified that Darlene Hanson’s work with Jonathan in a light touch on his forearm facilitated his communication and the behavioral work that UCLA was doing “was much below” that. AR 1871. Mother thought how frustrating it must be for Jonathan that he could not move his body to show them the picture choices without help.. Id. Pet. Op. Br. at 9.

Jonathan argues that the ALJ wrongly reasoned that Progressive’s services may not be appropriate because that issue had already been decided. Mother rejected the advice that Jonathan needed behavioral management services to minimize his tantrum behavior. Mother cited the poor results of a previous behavior management program (apparently at UCLA) (AR 1871) and testified that Progressive’s program design showed a comprehensive approach to Jonathan’s behaviors that would achieve more durable and longer lasting results. AR 2022-42.

Jonathan points out that section 4501 requires that “[t]he complexities of providing services and supports to persons with developmental disabilities requires the coordination of services... to ensure that no gaps occur in communication or provision of services and supports....[and a] consumer...or conservator, shall have a leadership role in services design.” Pet. Op. Br. at 8-9. Progressive was in place, providing services, and the real issue was whether to increase PR’s hours. Reply at 4-5.

The court agrees that Mother has a leadership role in obtaining services for Jonathan and the fact that facilitated communication is not evidence based is not a reason to disregard her preference. Mother was entitled to seek a day program with facilitated communication as well as support for his aggressive behaviors.

Mother’s leadership role is not unlimited. The ALJ cited section 4648 to conclude that a regional center has “discretion in determining which services it should purchase to best accomplish all or any part of a consumer’s IPP.” AR 1741. Regional Center’s exercise of discretion must conform to the law. Williams v. Macomber, (1990) 226 Cal App.3d 225, 233 (regional center’s prohibition on funding day care program violated Lanterman Act’s requirement that it consider every possible way to keep child at home).

The ALJ did not blame the use of Progressive or suggest its services should be discontinued. Rather, the ALJ explained why Jonathan did not have a day program as he should and instead was using Progressive’s AST training program. AR 706. Mother’s insistence on a program that uses facilitated communication – a non-evidence-based treatment modality-- as well as Jonathan’s aggressive behavior together were responsible for the lack of a day program, despite Regional Center’s best efforts to find one. AR 706. Regional Center had been providing Jonathan with temporary increased AST hours at Progressive while it tried to find a vendor who would do both. AR 706.

As Jonathan agrees, the issue was not whether Jonathan should continue with Progressive, but whether his hours should be increased to 125 per month. See Reply at 4. The ALJ did not find an adequate justification for the increase. She correctly concluded that the fact that Jonathan was without a day program since July 2018 does not on its own merit increasing his AST hours from 75 to 125 per month. AR 706. There must be other reasons for the increase.

Progressive’s use of facilitated communication did not by itself justify increasing Jonathan’s funding/hours. Despite Regional Center’s evidence criticizing facilitated communication, that is not a reason to deny Jonathan those additional hours either. “Facilitation” is defined as the use of modified or adapted materials, special instruction or personal assistance, such as assistance with communications, that will enable a consumer to understand participate to the maximum extent in the decisions and choices that affect his or her life. §4512(g). Facilitated communication is a valid, specialized service communication that was practiced years before the current litigation. The fact that facilitated communication is not evidence-based does not mean it is not useful. The evidence supports a conclusion that facilitated communication is useful for Jonathan and his parents.

Regional Center did not purport to disallow Progressive’s use of facilitated communication. Instead, Regional Center presented evidence that the additional hours of AST were unwarranted. Ortega testified that Jonathan already has a high level of AST hours and an increase to 125 hours per month would duplicate a day program, which Progressive is not. AR 698. Additionally, high AST hours can result in dependency. AR 698. AST is a skill building service and should decrease, not increase, as skills are acquired. AR 699.

Jonathan admits that the requested increase in hours would convert Progressive into his day program, and he argues that actually would be appropriate. Pet. Op. Br. at 10. His pediatrician, Robinson, testified that Jonathan’s communication abilities can be fully accessed through facilitated communication. AR 699. His therapist, Rhodes, testified that the lack of a full-time day service program has resulted in negative consequences. AR 700. Since Progressive has been providing extra hours, Jonathan’s aggression has gradually decreased. AR 700. Rhodes recommends a full-time program of approximately 30 hours per week. AR 700. Shepard testified that Jonathan is far more capable of doing things than he was in 2018. AR 697. An additional 50 hours would allow Jonathan to engage in a variety of tasks at which he excels. AR 697. Finally, Mother testified that the more staff works with Jonathan, the more he will progress. When he is at home, left to his own devices, he regresses. AR 2004-06. Mother testified that she feels He needs a full day program, and he is being denied one because he is too aggressive. AR 2004.

This testimony is somewhat general, but it does support an increase in hours. Nonetheless, it is insufficient. When coupled with Jonathan’s lack of success at Progressive (see post), the evidence supports a conclusion that Mother’s choice of Progressive should remain the appropriate program in the face of a lack of alternatives, but that an increase in hours is not justified. This conclusion is supported by the fact that AST is intended to teach skills and be reduced, not increased, over time. It is further supported by the fact that Shepard’s opinion that hours should be increased was based on what she was told by Mother and Rhodes, and her belief that there were no other options. See Opp. at 13.

The ALJ concluded that Jonathan was not making reasonable progress towards his IPP objectives in the years he was in the Progressive program. §4648(a)(7). Jonathan has been receiving AST services from Progressive since he was seven years old. AR 692. The progress reports during the period from 2017 through 2020 show little improvement (AR 692-96, 699). They reflect that Progressive had not helped Jonathan make much progress towards the three goals identified from June 1, 2017 thereafter or the five added at the end of August 2018. AR 706-07. Jonathan’s minimal progress with Progressive suggests that it is not the right program. AR 706-07.

As Regional Center argues, none of Shepard, Rhodes or any other witness provided objective data to support a conclusion that Jonathan made real progress in Progressive’s AST program. Without objective data, the ALJ could not find that progress was being made by Jonathan that would justify an order that the hours be increased. Opp. at 13-14.

Jonathan argues that the ALJ acted arbitrarily in relying on Jonathan’s minimal progress to bar increasing his AST hours at Progressive. The facts suggest his future growth and entry into a group program. Jonathan’s plan is for a one-third increase of hours that will challenge him to liberate himself from his autism to some extent. Without the increase in hours, he will likely remain the static world. Pet. Op. Br. at 4-5.

Jonathan argues that the ALJ did not consider how his severe autism affects his progress. The ALJ’s reference to his lack of progress is a failure to contrast and compare. Regional Center has no other human with which to compare Jonathan and it cannot make a fair judgment on his progress without such a comparison. Shepard testified about the complexity of severe autism, the rigorous training of Progressive’s staff, how Progressive’s interdisciplinary approach is superior to other programs, and what is needed to work with Jonathan. AR 2022-42; see AR 1487-555. Two programs were unable to work effectively with him while Progressive continues to do so. It is more likely than not that Progressive’s well-disciplined, well-trained, interdisciplinary approach has led to success for Jonathan. In contrast to the times when he was out of program or in between programs, Jonathan is thriving. The ALJ mentioned the terminated programs but did not stop to ask how and why Progressive is able to maintain Jonathan in its program. Pet. Op. Br. at 5-7; Reply at 5.

Regional Center has no plan other than to remain static and complain about the cost of Progressive. See AR 74, 95-98, 100-01, 1724. Regional Center is obligated to come up with alternatives, but there were no questions at the hearing about whether Regional Center had an alternative. The Lanterman Act contemplates that a regional center honor the preferences of the client and family. §4501 (consumers and their families should participate in the decisions). Pet. Op. Br. at 6.

Jonathan also argues that, while the ALJ stated that Progressive’s progress reports are subjective and not objective (AR 1732), they do have an objective grid. AR1474–79. The narrative part of the progress report reflects the complex analysis involved in in working with Jonathan. AR 1479-85. Progressive has the understanding that the Lanterman Act wants to assist persons with developmental disabilities in achieving their maximum development potential. Pet. Op. Br. at 6-7.

Jonathan’s contentions about his severe autism and its limitations on his progress are true. The burdens of caring for him are huge and it may be that Regional Center has no one to whom to compare him. Nonetheless, the fact is that he has made little progress. His contention that the grids are objective is simply wrong; the grids are a subject assessment of progress. AR 1474-79. The evidence shows that Jonathan has made little progress with Progressive and it may be time to adopt a different approach. Regional Center must provide some approach, but Mother must participate in that process of evaluating alternatives.

The ALJ recognized that, while the Lanterman Act’s IPP process requires a regional center to respect a conservator’s choices, those choices are tempered by requirements that the regional center utilize public funds in a cost-effective manner. §§4646.5(a), 4648(a)(1), see also 4648(a)(6). Regional Center argues that it was not cost-effective to increase funding for Progressive’s AST program under the circumstances presented at hearing.

Jonathan contends that the ALJ deviated from the spirit of the Lanterman Act by stating that the fact that Jonathan was without a program does not by itself “justify [Regional Center] violating its obligation to exercise fiscal responsibility in providing services to Petitioner.” AR 1742. Underlying that assertion is Regional Center’s contention that it was being asked to spend too much of its funds on Jonathan. AR 74-75. However, Jonathan is on a Medicaid Waiver and the cost to the state is cut in half. AR 83. Pet. Op. Br. at 9.

Frankly, the cost of the services for Jonathan is the least significant component of the ALJ’s decision. If additional hours would help Jonathan and aid his parents in reaching his IPP goals, the additional cost would be of no moment and the court would not hesitate to order it. However, the ALJ is correct that the fact that Jonathan lacks a day program does not by itself justify the increased hours. The issue for Regional Center and the ALJ was whether the increased cost of additional hours in Progressive’s AST program was appropriate. The court does not conclude that the additional cost has a significant effect on the outcome.

Jonathan’s parents have a very difficult road and Regional Center is obligated to help by listening to their desires and giving them a leadership role in his programs. Regional Center does have discretion, however. The Petition must be denied because Jonathan’s Petition is moot, his papers are procedurally defective, and the weight of the evidence does not support the additional 50 hours of AST at Progressive.

Regional Center’s counsel is ordered to prepare a proposed judgment, serve it on the Petitioner’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for September 27, 2022 at 1:30 p.m.

[1] Because Mother is acting on Jonathan’s behalf as guardian ad litem, the court will refer to Jonathan as the Petitioner.

[2] All further statutory references are to the W&I Code unless otherwise stated.

[3] For some reason, Jonathan submitted two Joint Appendices. Nor are the Joint Appendices identical. There are pages cited by both Regional Center and Jonathan that are not in either Joint Appendix. Moreover, Regional Center points out that the entire Administrative Record is incomplete and disorganized. Opp. at 4. Most significantly, the transcripts of two of Jonathan’s witnesses, Courtney Miller-Wakeham, a Progressive supervisor, and Darlene Hanson are not in either the Administrative Record or either Joint Appendix. Opp. at 4.

[4] Jonathan apparently attempts to cure this last defect by filing and serving a motion to augment four court days before trial. This motion does attach evidence but provides no an explanation for its untimeliness and does not seek to shorten time for hearing. The motion therefore is ineffectual and is denied.

[5] Regional Center also objects to Jonathan’s evidence as unsupported hearsay and lacking foundation. Opp. at 4-5. The court cannot rule on these objections because the evidence is not before it in a properly noticed motion.

[6] Jonathan adds a discussion of the cy pres doctrine (Reply at 2-3) which has no bearing on the issues. There is no pot of funds that may be distributed to Jonathan cy pres.

[7] One of the cited IPPs (AR 170) was not in the Joint Appendix.