Judge James C. Chalfant, Case Number: 23STCP03919, Date: 2024-06-20 Tentative Ruling

Petitioner Klaudia Beyder (“Beyder”) seeks a writ of mandate directing Respondent Kim Johnson, in her official capacity as the Director of the California Department of Social Services (“DSS”), to set aside an administrative decision regarding the denial of Beyder’s eligibility for protective supervision as a component of in-home supportive services (“IHSS”).

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

Petitioner Beyder commenced this proceeding on October 24, 2023, alleging one cause of action for administrative mandamus pursuant to CCP section 1094.5 and Welfare and Institutions Code section 10962. The verified Petition alleges in pertinent part as follows.

Petitioner Beyder is an 85-year-old, low-income woman diagnosed with dementia and other disabilities. As Beyder’s conditions worsened, she began to elope from her home. She also engaged in other potentially dangerous activities such as turning on the stove and then leaving the room.

On July 19, 2021, Los Angeles County (“County”) sent Beyder a Notice of Action (“NOA”) informing her that she was approved for 193 IHSS hours per month effective August 1, 2021. The County gave her zero hours for protective supervision.

On August 20, 2021, Beyder submitted an Assessment of Need for Protective Supervision for IHSS Form SOC 821, in which her physician recommended that Beyder be given 24 hour-a-day protective supervision.

The County denied Beyder’s request for protective supervision in Notices of Action effective August 1 and September 27, 2022, respectively.

On June 21, 2022, Beyder requested an administrative hearing from the denials of protective supervision.

On November 21, 2022, an Administrative Law Judge (“ALJ”) issued a decision finding that Beyder had a mental impairment, was non-self-directing, and engaged in potentially dangerous activities. The ALJ upheld the denials, finding that Beyder did not require 24 hour-a-day supervision because her daughter, Inna Beyder, had recently moved in with her and Beyder had not engaged in any subsequent potentially dangerous activities. Having determined that Beyder did not require 24 hour-a-day supervision, the ALJ concluded that Beyder was not eligible for IHSS protective supervision.

On July 20, 2023, Beyder sent DSS a letter asking it to overturn the ALJ’s decision. The agency refused.

Petitioner Beyder seeks a peremptory writ of administrative mandate directing DSS to (1) reverse its decision denying her IHSS protective supervision and provide retroactive benefits from August 1, 2021 to the present or, in the alternative, (2) apply the correct law. Beyder alleges that the ALJ abused her discretion in two ways. First, the ALJ required Beyder to prove that she was continuously eloping to qualify for protective supervision even though actual injury is not required. Second, the ALJ failed to consider the risks if Beyder was left alone and erroneously only considered what Beyder would do when her familial caretakers were with her.

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 on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a fundamental vested right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). The court reviews an agency’s determination of an application for welfare benefits under the independent judgment standard. Fink v. Prod, (1982) 31 Cal.3d 166 178-79.

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, supra, 4 Cal.3d 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.

“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, 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, 150-51; 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 CCP 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 515.

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. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

In 1973 the Legislature enacted the IHSS program to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services. Marshall v. McMahon, (“Marshall”) (1993) 17 Cal.App.4th 1841, 1844. The purpose of the IHSS program is to provide supportive services to persons who are unable to perform the services themselves and cannot safely remain in their homes or abodes of their own choosing unless these services are provided. Welfare and Institutions (“Welf. & Inst.”) Code §12300(a). The program compensates persons who provide the services to a qualifying incapacitated person. Basden v. Wagner, (“Basden”) (2010) 181 Cal.App.4th 929, 931.

IHSS is governed by Welf. & Inst. Code sections 12300 et seq. DSS is charged with administering the IHSS program in compliance with state and federal laws. Welf. & Inst. Code §§ 12301, 12302; Miller v. Woods, (1983) 148 Cal.App.3d 862, 868. DSS is required to adopt regulations establishing a range of services available to recipients based on their individual needs. Welf. & Inst. Code §12301.1. These regulations are set forth in DSS’s MPP sections 30-700, et seq.

The IHSS program provides a range of supportive services to persons who are eligible for the services. MPP §30-755.1. IHSS services include: (1) preparation and cleanup of meals, routine laundry, shopping for food and errands; (2) personal care services such as bowel and bladder care, dressing, bathing, oral hygiene, grooming; (3) accompaniment to medical appointments; and (4) protective supervision. See Welf. & Inst. Code §12300(b); MPP §§ 30–757.11-.30–757.19.

Counties administer the IHSS program under DSS’ supervision. Miller v. Woods, supra, 148 Cal.App.3d at 868. Applicants must satisfy two eligibility conditions to obtain any IHSS service: (1) they are “unable to perform the services themselves” and (2) they “cannot safely remain in their homes or abodes of their own choosing unless these services are provided.” Welf. & Inst. Code §12300(a). An applicant may receive up to 195 or 283 hours of services per month, depending on the severity of their needs. Welf. & Inst. Code §§ 12303.4(a), (b), 14132.952(b). The applicant may choose his or her provider (Welf. & Inst. Code §§ 12304(b), 12304.1), including relatives who live with them. Welf. & Inst. Code §12350; Basden, supra, 181 Cal.App.4th at 931.

County welfare departments administer the IHSS programs under DSS’s supervision. Miller v. Woods, supra, 148 CalApp.3d 862, 868. The county processes the application for IHSS and determines the individual’s eligibility and needs and authorizes services. The total amount of services is limited by statute, depending on the severity of the impairment and a recipient’s needs. Welf. & Inst. Code §12303.4; Marshall, supra, 17 Cal.App.4th at 1844.

Counties have a legal duty to “endeavor at all times to perform...[their] duties in such manner as to secure for every person the amount of aid to which he is entitled” (Welf. & Inst. Code §10500), and they must “correctly determine eligibility and need” for services (MPP §30-760.24).

To determine whether a person needs help with tasks covered by an IHSS service (Welf. & Inst. Code §12301.2(a)-(b); MPP §30-757.1(a)), a county must “evaluate the effect of the . . . [person’s] physical, cognitive and emotional impairment on functioning” to perform those tasks (MPP §30-756.1-.3) by using state assessment guidelines. Welf. & Inst. Code §12309(a); MPP §30-761.1.

Trained county social workers determine which supportive services a recipient needs, and the number of hours a recipient will receive for each authorized service, by using a uniform needs assessment tool. Welf. & Inst. Code §§ 12305.7(e)(1), 12309; MPP §30-761.1. A five-point scale is used to evaluate eligibility including an examination of an applicant’s level of ability, functioning, and dependence on assistance. MPP §§ 30-756.1, 30-756.2. A county must rank the degree of impairment in the person’s functioning from “rank 1” – referring to a person needs no help performing the tasks – to “rank 5” – referring to a person needs total help performing them. Welf. & Inst. Code §12309(d)(1), (2), (5); MPP §30-756.1. For each rank, state regulations specify the average range of time it takes to help a person with the tasks included in each IHSS service except protective supervision. MPP §30-757.1(a).

A county must reassess a recipient’s need for IHSS services on an annual basis. MPP §30-761.212.

Protective supervision is a benefit offered through the IHSS program. 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.” MPP §30-757.17.

“Protective Supervision is available for observing the behavior of nonself-directing, confused, mentally impaired, or mentally ill persons only.” MPP §30-757.171. The required conditions for protective supervision to be authorized are: (1) the person is “nonself-directing, confused, mentally impaired, or mentally ill” (MPP §30-757.171); and (2) “a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely” (MPP §30-757.173(a)). Such persons “cannot protect themselves from injury.” Miller v. Woods, supra, 148 Cal.App.3d at 869.

“Protective Supervision requires a 24/7 need, so if the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no Protective Supervision eligibility because there is not a 24 hour-a-day need. Alternatively, unpredictable episodic behavior does meet the 24/7 requirement, as the need for supervision is constant. The unpredictable episodic behavior must be frequent and long enough that constant supervision is necessary.” ACL No. 15-25, p. 5.[1]

In considering the conditions for protective supervision, the applicant’s mental functions of memory, orientation, and judgment are evaluated on a three-point scale: Rank 1 (unimpaired), 2 (mildly impaired), and 5 (severely impaired). MPP §30-756.372. Other factors could include the living environment, age, lack of injuries and parental absence, and/or fluctuation in needs. Welf. & Inst. Code §12301.1. The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. MPP §§ 30- 756.372, 30-757.171; Calderon v. Anderson, (“Calderon”) (1996) 45 Cal.App.4th 607, 615, 616; Marshall, supra, 17 Cal.App.4th at 1852-53.

As the need for 24-hour supervision is a condition to qualify for protective supervision, the law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” Welf. & Inst. Code §12301.21. This certification is on a DSS standard form (SOC 821) that a physician or other qualified medical professional completes. MPP §30-757.173(a)(1). Another standard form (SOC 873) is a medical certification form filled out by a licensed health care professional to enable disabled, blind, or elderly individuals to receive services from the IHSS program.

The SOC 821 and SOC 873 forms are not dispositive of whether an IHSS recipient qualifies for protective supervision. Welf. & Inst. Code §12301.21; MPP §30-757.173(a)(1)(A)(3). Other pertinent information such as the social worker’s interview with the recipient is part of the overall assessment. MPP §30-757.173(a)(2). As with all IHSS services (except paramedical services), county social services staff make the final determination whether a beneficiary meets the criteria for protective supervision. MPP §30-757.173.

California has adopted a system for a fair hearing, codified at Welf. & Inst. Code section 10950 et seq. and Government Code section 11500 et seq., which is consistent with federal requirements. See 42 U.S.C. §671(a)(12). If an applicant’s request for benefits is denied, the applicant may request a hearing with DSS conducted by an administrative law judge or DSS’s director. Welf. & Inst. Code §§ 10950, 10055, 10953. DSS is represented at the hearing by an appeal hearing specialist. MPP §22-073.13. The county is represented at the hearing by a representative and its social worker also may attend.

When DSS’s appeal hearing specialist is assigned to a case, he or she must review the applicable law and the evidence in the case record, including contacting the eligibility worker if necessary. MPP §22-073.22. If the appeal hearing specialist determines that a hearing is appropriate, he or she must then contact the claimant to inquire if the claimant plans to attend the hearing and determine if there are any additional issues that the claimant intends to raise at the hearing. MPP §22-073.232(a)-(b). The appeal hearing specialist must provide the claimant with “any and all information which can be of assistance to the claimant in preparing for the hearing.” MPP §22-073.232(c). This includes all regulations and evidence, including evidence favorable to the claimant's case. Id. The claimant must also be informed of the availability of free legal representation. Id.

The hearing is conducted by an administrative law judge, required to prepare a written “fair, impartial and independent proposed decision,” upon the close of the proceedings, addressing all issues identified by the parties. Welf. & Inst. Code §§ 10953, 10953.5, 10954, 10958 and 10958.1. Hearings are conducted in an “impartial and informal manner,” testimony must be submitted under oath or affirmation, and the hearing need not be conducted in accordance with the rules of procedure or evidence applicable in judicial proceedings. Welf. & Inst. Code §10955.

Judicial review of the decision is available under CCP section 1094.5. Welf. & Inst. Code §10962.

Beyder is an elderly woman whose diagnoses and medical conditions include Alzheimer’s dementia, memory impairment, a stroke, a craniotomy to remove a tumor, seizures, limited mobility of the upper and lower extremities, and other physical limitations. See AR 4-5.[2] Because of her mental disabilities, Beyder tends to forget important information such as where she lives and who her family is. AR 8-12.

As Beyder’s symptoms worsened over time, she began to engage in dangerous behaviors. Id. She would (1) leave the stove running and walk out of the room, (2) leave the water running in her bathtub, and (3) elope from her home without supervision. AR 12-13. Beyder eloped from her home on three separate occasions in November 2021, December 2021, and January 2022. AR 12. After one such incident, she explained that she left because she was looking for her home and did not know where she was. Id. On one occasion, Beyder eloped even though her daughter was at home. AR 152.

Beyder applied for IHSS protective supervision, a service for people who, due to a mental impairment or mental illness, need to be observed 24 hours-a-day to protect them from injuries, hazards, or accidents. AR 4.

In an NOA dated July 19, 2021, and effective August 1, 2021, the County approved Beyder for 193 hours, 23 minutes of IHSS services per month but denied Beyder’s request for protective supervision. AR 98.

The County subsequently issued NOAs that either made no change or slightly increased IHSS services and denied Beyder’s requests for protective supervision in NOAs, dated June 13, 2022 (effective January 1, 2022) and July 22, 2022 (initially effective August 1, 2022 but later deemed effective September 27, 2021). AR51, 80, 205. Prior to each denial of protective services, County Social Worker Shogik Begeyan (“SW Begeyan”) conducted an IHSS needs assessment of Beyder. See AR 5.

On June 21, 2022, Beyder’s daughter and authorized representative, Inna Beyder (“Daughter”), filed a request for a fair hearing on the denial of protective supervision. AR 22.

On August 17 and October 28, 2022, Administrative Law Judge Holly McMahon (the “ALJ”) held a telephonic hearing on the County’s denial of protective services in the three NOAs. AR 99.

Anait Mirzoyan appeared as appeal hearing specialist for DSS and SW Begeyan also testified. AR 98.

Daughter submitted (1) a Power of Attorney dated May 12, 2021 (AR 28); (2) an SOC 821 Assessment of Protective Supervision form dated August 20, 2021 (AR 34), and (3) a letter from Beyder’s internist dated August 19, 2022 (AR 32). AR 6.

Beyder’s SOC 821, dated August 20, 2021, was completed and signed by her neurologist. AR 33, 35. On the SOC 821, the neurologist noted that Beyder suffered from mixed dementia and retained the mobility or physical capacity to place herself in a situation which would result in injury, hazard, or accident. AR 34-35. The physician determined that Beyder had a moderate or intermittent deficit of memory, moderate or intermittent deficit of orientation, and severely impaired judgment. AR 34-35. The neurologist recommended 24 hour-a-day supervision for Beyder. AR 35.

Beyder also submitted a letter dated August 19, 2022, from her primary care provider which stated:

“The patient was evaluated by neurology most recently on 3/17/2022. Per review of the note, the neurologist suspects mixed dementia likely related to an underlying neurocognitive condition such as Alzheimer's dementia as well as vascular dementia. On review of the note, the neurologist also discussed the recommendation of having 24/7 supervision. For a multitude of reasons including flight risk, unsteady gait, poor executive function, risk for falls, and decreased visual field, I agree with neurology recommendation of 24/7 supervision.” AR 32.

Daughter testified in pertinent part as follows. Beyder had brain surgery for removal of a tumor in approximately June 2020. AR 130. She had a seizure in the home on June 27, 2021. AR 154. She has dementia and Alzheimer’s. AR 165.

In the pertinent period of August 1, 2022, Beyder’s memory was not good because she had a hemorrhagic stroke. AR 123-24. She was very unstable after the stroke. AR 140. She knew her name but did not recognize the inside of her own home. AR 125. She would ask Daughter to take her home and Daughter would respond: “No, mom. You live here.” AR 125. Beyder would respond: “This is not where I live.” AR 126. Beyder had lived in the apartment since 1981. AR 126.

Beyder would ask where her daughter was and “I want my daughter” to Daughter’s face. AR 127. Other times -- maybe 10% of the time -- she knew who Daughter was. AR 126. She remembers her son and grandchildren also sometimes. AR 128-29. Daughter has two dogs, and Beyder knows the dogs. AR 147.

Beyder is talkative but does not make sense. AR 136. She often does not know the time of day. AR 142-43. Beyder tends to turn on her stove and leave the room and Daughter Beyder has to stop her mother from turning on the stove or oven every day. AR 161. The problem became so severe that Daughter Beyder resorted to removing the knobs from the stove whenever she leaves the house so as to prevent further incident. AR 162. She goes on outings with Daughter such as grocery shopping, but she does not want to get out of the car and Daughter cannot leave her alone in it. AR 145. So, Daughter makes her go in the store. AR 145.

Beyder has eloped from the home three times. AR 149. On January 12, 2022, Beyder left the home when Daughter was in the bathroom and Daughter could not find her. AR 140, 152. She and her son found Beyder on a main street at an am/pm market, and she was about to fall because she was about to have a seizure. AR 141. She had to be hospitalized. AR 151. The other two times of eloping were November and December 2021 when she said she was looking for her home. AR 150-51. All three times she went to the street, half a block or a block and a half away. AR 150, 152-53. Daughter has not put locks on the doors to prevent Beyder from leaving. AR 152.

Beyder leaves the water running in the sink or the tub. AR 155. She does this every other day. AR 156. She does not overflow the tub because the drain is open. AR 157.

She turns on the stove every day, but Daughter stops her right away. AR 161-62. Daughter takes off the knobs if she has to leave. AR 162. Daughter makes Beyder the food she likes. AR 164.

The County submitted as evidence its Statement of Position with seven attachments. AR 6. Those attachments were: (a) the June 13, 2022 NOA; (b) a case assessment narrative dated July 16, 2021; (c) a Needs Assessment Form dated July 16, 2021; (d) the SOC 821 dated August 20, 2021, (e) a May 19, 2021 NOA, (f) the July 19, 2021 NOA; and (g) the Case Assessment Narrative dated July 14, 2022. Id.

On November 21, 2022, the ALJ issued a decision denying Beyder’s eligibility for protective supervision. AR 2-21.

Three NOAs were relevant at the hearing: (1) the NOA dated July 19, 2021, and effective August 1, 2021; (2) the NOA dated June 13, 2022; and (3) the NOA dated July 22, 2022 and effective August 1, 2022. AR 5, 20. Although the appeal from the July 19, 2021 NOA was untimely, the ALJ found the NOA to be deficient because “it failed to inform the claimant of the action the County intended to take in regards to protective supervision and the specific regulations that support the determination that protective supervision was not awarded.” Because the protective supervision regulation was absent, it was not adequate, and the ALJ had jurisdiction over Beyder’s appeal from it. AR 20. The ALJ also determined that the NOA dated June 13, 2022, was effective September 27, 2021, not its initial effective date of January 1, 2022. AR 5-6, 205.

The ALJ found that Beyder had a moderate deficit in memory. She recognizes family members whom she sees intermittently and knew that she has grandchildren. AR 9. While there was a dispute between Daughter and SW Begeyan about what Beyder said in the assessments, her memory is intact at times and she has some memory in aspects of her life. AR 9. Her memory is intermittent, a conclusion supported by the SOC 821. AR 9.

Beyder has moderate orientation. AR 10. She is oriented to herself and children (not necessarily their names) and other familiar things like the pet dogs. AR 10. She is oriented to her daily blood pressure reading and going on an outing. AR 10. She therefore is oriented to some things, but a conclusion of moderate disorientation is appropriate and supported by the SOC 821. AR 10.

Beyder’s judgement is severely impaired. Daughter testified that she has left the home three times, twice when she was outside looking for her home. AR 10. On the third occasion she was having a seizure. AR 10. Daughter stated that she has not had to prevent Beyder from leaving the home. AR 11. Daughter also testified that Beyder leaves the water running in the sink or tub every day, but the drains are open. AR 11. Bedyer would go to the oven and turn it on when she wants to cook something. AR 11. Daughter will run after her to stop her and she has to do this every day. AR 11. Beyder may be hungry when she does this because Daughter will then make her food . AR 11. Beyder has broken a lot of glasses. AR 11. Daughter takes the knobs off the stove when she is gone. Beyder’s judgment is severely impaired, which is supported by the SOC 821. AR 11. The ALJ noted that protective services are not available to anticipate a medical emergency from seizure. AR 11.

Beyder is non-self-directing. She has engaged in elopement without knowledge that the beavior is risky or dangerous. She does so, seeking to go home when she is already home. She attempts to turn on the stove because she is hungry and wants food. AR 11-12.

Beyder engages in potentially dangerous activities, including elopement from home in November and December 2021 and January 12, 2022. AR 12. This eloping occurred three times in a three-month period. AR 12. However, Beyder has not engaged in this behavior for ten months. Daughter testified that she moved in with Beyder on April 1, 2022 and she has not had to prevent Beyder from leaving. AR 12. Daughter stated that Beyder left home before she moved in. AR 12. The elopement behavior is unpredictable and episodic, but it is not sufficiently frequent to make constant supervision necessary. AR 12. Beyder has left home only three times in the past ten months, and Daughter does not have to prevent her from leaving home. AR 12.

Beyder also turns on the stove when she is hungry. Daughter has to stop her from doing so. AR 12. Because Beyder wants food when she turns the stove on, this is a self-directed behavior, but Beyder does not remember that she cannot cook due to her mental impairment. AR 12. She receives seven hours per week for meal preparation and Daughter testified that she cooks for Beyder when she tries to turn the stove on. AR 12. Daughter removes the knobs when she leaves the home so that Beyder cannot turn the stove on. AR 12. This environmental modification, coupled with the meal preparation, has eliminated this safety hazard and protective services cannot be authorized for it. AR 12.

Finally, Beyder turns on the water. AR 12. This is not a dangerous behavior because Daughter testified that Beyder leaves the drains open. AR 12.

Since Beyder engages in dangerous activities, there must be a determination whether she requires 24-hour supervision. AR 13. In other words, the determination is whether the recipient requires constant supervision due to the frequency, duration, and intensity of her dangerous behavior. AR 13. The ALJ concluded that because “claimant’s eloping is very sporadic…it is not frequent enough such that it requires 24-hours-a-day supervision. It is noted that per [Daughter’s] testimony, the claimant has not tried to elope since [Daughter] began living with her, and [Daughter] has not had to prevent the claimant from eloping.” AR 13. Given these findings, the ALJ ruled that 24 hour-a-day supervision was not needed. AR 20.

Petitioner Beyder contends that the ALJ abused her discretion by misapplying the standard for adult protective supervision.[4]

Protective supervision benefits are not routinely offered but are offered if there is a constant 24 hour-a-day need. MPP §30-757.173(a). This does not include predictable risks. If the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no protective supervision eligibility because there is not a 24 hour-a-day need. ACL No. 15-25, p. 5. Alternatively, unpredictable episodic behavior does meet the 24/7 requirement, as the need for supervision is constant. The unpredictable episodic behavior must be frequent and long enough that constant supervision is necessary.” Id.

In considering the conditions for protective supervision, the applicant’s mental functions of memory, orientation, and judgment are evaluated on a three-point scale: Rank 1 (unimpaired), 2 (mildly impaired), and 5 (severely impaired). MPP §30-756.372. Other factors could include the living environment, age, lack of injuries and parental absence, and/or fluctuation in needs. Welf. & Inst. Code §12301.1. The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. MPP §§ 30- 756.372, 30-757.171; Calderon, supra 45 Cal.App.4th at 615, 616; Marshall, supra, 17 Cal.App.4th at 1852-53.

2. Whether the ALJ Misapplied the Law for Assessing an Adult’s Need for Protective Supervision

a. Whether The ALJ Properly Assessed Bedyer’s Memory, Orientation, and Judgment

The recipient’s mental function shall be evaluated on a three-point scale (Ranks 1, 2, and 5) in the functions of memory, orientation and judgment. This scale is used to determine the need for protective supervision.” MPP § 30-756.372; see also ACL 15-25, p. 6.

The ALJ found that Beyder had a moderate deficit in memory. Her memory is intermittent, and that conclusion is supported by the SOC 821. AR 9. Beyder has moderate orientation. AR 10. She is oriented to some things, but a conclusion of moderate disorientation is appropriate and supported by the SOC 821. AR 10. Finally, Beyder’s judgment is severely impaired, which is supported by the SOC 821. AR 11.

It is undisputed that the ALJ properly evaluated Beyder’s memory, orientation, and judgment.

MPP section 30-757.171 provides for protective supervision to “nonself directing, confused, mentally impaired, or mentally ill persons”. “Nonself-direction” is “an inability, due to a mental impairment/mental illness, for individuals to assess danger and the risk of harm, and therefore, the individuals would most likely engage in potentially dangerous activities that may cause self-harm.” ACL 15-25, p. 3.

It is undisputed that the ALJ properly found Beyder to be non-self-directing. AR 11-12.

c. Whether the ALJ Properly Found That Beyder Engates in Potentially Dangerous Activities

The ALJ found that Beyder engaged in potentially dangerous activities of elopement and turning on the stove when she is hungry. AR 12. Although Beyder also turns on the tub and sink water, this is not a dangerous behavior because Daughter testified that Beyder leaves the drains open. AR 12.

It is undisputed the ALJ properly found that Beyder’s elopement and turning on the stove are potentially dangerous activities and that turning on the faucet is not.

d. Whether the ALJ Properly Evaluated the Need for 24 Hour-a-Day Supervision Based on What Bedyer Would Do If Left Alone

Assessing the 24 hour-a-day need for protective supervision eligibility is no different from assessing the need for any other IHSS service. The basic test is whether the applicant can do it without someone’s help. See Welf. & Inst. Code §12300(a) (applicants are “unable to perform the services themselves and . . . cannot safely remain in their homes . . . unless these services are provided”); MPP §§ 30-761.13, 30-763.112. If the applicant cannot perform the service by himself/herself, the service is needed. Since most people needing protective supervision live with an adult -- usually a relative -- who is already providing 24-hour supervision, state assessment guidelines require a county to determine what an adult applicant would do if “left alone” without any supervision. An assumption that some family member will provide the applicant with uncompensated supervision is an illegal “housemate” regulation that denies IHSS protective supervision to recipients when they live with an adult. See Miller, supra, 148 Cal.App.3d at 878.

Beyder argues that the ALJ did not apply this standard and instead imposed a more burdensome standard because of Daughter’s presence in the household. The standard is whether a need exists at the moment of assessment for 24 hour-a-day supervision to keep the claimant safe. Notably absent from this standard is consideration of whether an independent or intervening presence negates the need or importance of protective supervision for a claimant to remain in their home. Pet. Op. Br. at 10-11.

Instead of determining whether a need existed for Beyder to have 24 hour-a-day supervision to keep her safe, the ALJ applied a standard whether 24 hour-a-day supervision was necessary now that Daughter was living with Beyder. The ALJ stated the following:

“[Beyder’s] eloping is very sporadic, it is found that it is not frequent enough such that it requires 24-hours-a-day supervision. It is noted that per [Daughter’s] testimony, the claimant has not tried to elope since [Daughter] began living with her, and AR has not had to prevent the claimant from eloping. AR 13 (emphasis added).

The medical evidence and Daughter’s testimony provide more than sufficient evidence for the ALJ to determine that a need existed for 24 hour-a-day supervision. Both medical professionals agreed that Beyder had severely impaired judgment, suffered from Alzheimer’s dementia, had the ability to endanger herself, and expressly advised 24 hour-a-day supervision. Daughter’s testimony echoed the same. Nonetheless, the ALJ determined that Beyder’s eloping was tempered by her daughter’s presence, and therefore there was no need for protective supervision. Pet. Op. Br. at 11-12; Reply at 6-7.

Indeed, an argument can be made that Beyder’s failure to elope since Daughter began living with her is strong evidence that she needs 24 hour-a-day supervision to remain safely in her own home. Without 24 hour-a-day supervision, Beyder has a tendency to elope and endanger herself. With such supervision, Beyder is able to safely reside in her own home. The ALJ should have asked and determined whether Beyder could function safely alone. Pet. Op. Br. at 12; Reply at 7-8.

Beyder misreads the ALJ’s decision. Although she is correct that protective services should be evaluated based on an adult’s individual need living alone, the ALJ did not decide that Daughter performed some act to prevent Beyder from eloping. To the contrary, the ALJ expressly noted that Daughter had done nothing to prevent Beyder from leaving, including not putting locks on the doors. AR 152. The ALJ’s point was that Bedyer had eloped three times in a three-month period (November and December 2021 and January 12, 2022) but had not engaged in this behavior for ten months. The ALJ noted that Daughter testified that she moved in on April 1, 2022 and she had not prevented Beyder from leaving. AR 12. In other words, the ALJ was pointing out that Daughter would know if Beyder eloped because she was living with her, and it had not happened. The ALJ was relying on Daughter as a witness, not as a third party with a duty to prevent eloping.

The ALJ’s’ conclusion was that Beyder’s elopement behavior was unpredictable and episodic but not sufficiently frequent to make constant supervision necessary. AR 12. Beyder had left home only three times in the past ten months, and not at all in the seven months since January 20, 2022. AR 12.[5] This was not an improper application of the standard.

Beyder argues that the ALJ applied similar flawed reasoning to Beyder’s tendency to turn on the stove. The ALJ stated that because Daughter cooks for her mother, has stopped her mother from lighting the stove every day, and takes the stove’s knobs with her whenever she leaves the house, Daughter “has eliminated the safety hazard that would otherwise put the claimant at risk, and protective supervision cannot be authorized for this behavior.” AR 12. Just because Daughter stops Beyder from endangering herself daily does not mean that she no longer has a need for supervision or that she is suddenly safe in her home without protective services. Pet. Op. Br. at 11.

The correct inquiry is whether a need exists for 24 hour-a-day supervision for Beyder to remain in her home safely. The purpose of protective supervision is to provide an individual with the opportunity to safely stay at home and avoid possible institutionalization. See MPP § 30-757.173. This need can exist even when the claimant is not currently engaging in dangerous behavior. The standard is to determine whether a need exists for 24 hour-a-day supervision, not whether it is necessary under the current environmental factors for 24 hour-a-day supervision. Pet. Op. Br. at 11-12.

Beyder is incorrect. The purpose of protective supervision is limited to “a nonskilled provider” “supply[ing] the ‘common sense’ or missing cognitive skill to prevent harm from everyday hazards.” Calderon, supra, 45 Cal.App.4th at 616. The possibility of environmental modifications to prevent a hazard is an express factor that may be considered. Welf. & Inst. Code §12301.1. The claimant’s behavior must be episodic and unpredictable, as well as frequent and long enough, to warrant 24 hours of protective supervision. Environmental modifications are relevant to this analysis:

Environmental modifications such as removing knobs from stove or adding safety latches can be used, and should be encouraged, to eliminate the need for Protective Supervision. If the modification eliminates the hazard, then there is no longer a need for Protective Supervision and Protective Supervision should not be authorized. MPP 30-757.173(a), see also ACL 15-25, p. 5 (emphasis added).

Bedyer need not be evaluated as if she will perform these environmental modifications for herself. The modifications may be imposed by someone else who already is present performing other compensated IHSS services and has a duty to do so. Thus, if Daughter is present in the home with a duty to perform personal care services, she may be relied upon to deal with environmental issues raised by those services. In making this decision, the ALJ was required to evaluate the overlap in such services to ascertain if there were gaps in which Beyder was prone to dangerous behavior at times when Daughter was not performing personal care.

The ALJ found that Beyder turns on the stove when she is hungry, and that Daughter had to stop her from doing so. AR 12. Beyder receives seven hours per week for meal preparation and Daughter testified that she cooks for Beyder when the latter tries to turn the stove on. AR 12. Daughter removes the knobs when she leaves the home so Beyder cannot turn the stove on. AR 12. This environmental modification, coupled with the meal preparation, has eliminated this safety hazard and protective services cannot be authorized for it. AR 12.

In other words, the ALJ found that Daughter receives IHSS pay to provide meals for Beyder. She cooks for Beyder when Beyder is hungry, and that is the only time when Beyder turns the stove on. The potentially dangerous behavior is predictable because it only occurs when Beyder is hungry. AR 162-64. Presumably, Beyder is hungry at her mealtime. If the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no protective supervision eligibility because there is not a 24 hour-a-day need. ACL No. 15-25, p. 5.

Additionally, Daughter performed an environmental modification of taking the knob off the stove when she leaves the home, and could have performed an even easier modification of taking the knobs off and only putting them on the stove when she (Daughter) is performing her cooking duties. This conclusion does not violate the requirement that protective supervision be evaluated as if Beyder lived alone because Daughter was being paid, and had a duty, to perform cooking tasks.[6]

As DSS argues (Opp. at 12), the ALJ based her decision on the frequency, predictability, and likelihood of Beyder’s potentially dangerous activities, not Daughter’s prevention of them. The decision was based on Beyder’s needs irrespective of Daughter and did not constitute an abuse of discretion.[7]

3. The ALJ Did Not Require Actual Engagement in a Potentially Dangerous Activity

Beyder also argues that the ALJ misapplied the law when she required Beyder to actually engage in dangerous activity to warrant a need for 24-hours-a-day supervision.

For protective supervision, actual injury is not necessary. Norasingh v. Lightbourne, (“Norasingh”) (2014) 229 Cal.App.4th 740, 759. “What is required is evidence of a propensity for engaging in self-endangering behavior as a result of her mental impairment” rather than a “contention that [claimant] is required to actually engage in dangerous activity in order to remain eligible for protective supervision.” Id.; see also ACL 15-25, p. 5 (“A person with a documented history of non-self-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.”) Wandering away from home has been expressly recognized as the type of potentially dangerous conduct for which protective supervision is appropriate. See Calderon, supra, 45 Cal.App.4th at 616. Pet. Op. Br. at 14.

Beyder argues that the evidence was that Beyder would turn on the stove or elope from her house multiple times. In light of this evidence, the ALJ correctly found that Mrs. Beyder had a propensity for engaging in self-endangering behavior as a result of her mental impairment. AR 13.[8] Despite this finding, the ALJ denied protective supervision because Beyder had not eloped while under Daughter’s supervision. In contradiction to Norasingh, the ALJ required Beyder to continue to engage in actual dangerous activity to be eligible for protective supervision. The ALJ wrongly reasoned Beyder was not eligible for protective supervision because Daughter’s presence effectively ceased the eloping episodes. Daughter’s presence, however, did not cure or otherwise remove Beyder’s propensity for dangerous activity; it merely mitigated its occurrence. By requiring Beyder to continue to engage in actual dangerous activity, the ALJ committed dual legal errors: one error of requiring the aid of third parties as in Maryann L. and a second error of contravening the rule against actual injury in Norasingh. Had the ALJ applied the correct legal standard, she would have found that Beyder had engaged in multiple acts of dangerous behavior and therefore had a propensity to engage in them. The inquiry would have ended there. Instead, the ALJ imposed a heightened standard that effectively ensured that Beyder would not access the services needed for her to remain safely in her own home. Pet. Op. Br. at 15.

This argument is erroneous. There must be a constant 24 hour-a-day need to be eligible for protective services. MPP §30-757.173(a). The need for around-the-clock supervision hinges on whether the applicant would engage in potentially dangerous behaviors if he/she did not have 24-hour supervision. MPP §§ 30- 756.372, 30-757.171; Calderon, supra 45 Cal.App.4th at 615, 616; Marshall, supra, 17 Cal.App.4th at 1852-53. If a potentially dangerous activity is considered predictable, and the need for supervision is at certain times of the day, there is no protective supervision eligibility because there is not a 24 hour-a-day need. ACL No. 15-25, p. 5. Alternatively, “unpredictable episodic behavior does meet the 24/7 requirement, but the behavior must be frequent and long enough that constant supervision is necessary.” Id. (emphasis added).

Under this standard, the ALJ was required to evaluate not only whether Beyder engaged in potentially dangerous activity, but also whether that activity was sufficiently frequent to require 24 hour-a-day supervision. Therefore, the ALJ was entitled to consider the fact that no elopement had occurred for seven months by the date of the hearing. This evaluation was not a requirement of actual injury (Norasingh) but it was a requirement for propensity of dangerous behavior, and rightly so. It also was not a requirement of third-party protection (Maryann L.).

The Petition is denied. DSS’s counsel is ordered to prepare a proposed judgment, serve it on Beyder’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 July 25, 2024 at 9:30 a.m.

[1] DSS has issued two ACLs clarifying protective service: ACLs 15-25 and 17-95. The parties do not present these letters but their existence is undisputed.

[2] Citation to the ALJ’s decision is not proof of the underlying fact. However, the facts cited by the court from the ALJ’s decision are undisputed.

[3] Although SW Begeyan contradicted Daughter on whether Beyder or Daughter answered her questions in the interview (AR 133-34) and whether Byeder has Alzheimer’s as well as dementia (AR 165), there is no need to discuss this testimony in detail.

[4] DSS’s opposition refers to protective supervision provided to her beginning in October 2023. Opp. at 13-14. Beyder correctly objects to this reference as unsupported by the administrative record and the court has not considered it. See Reply at 10-11.

[5] Although Beyder’s opening and reply briefs contend that the ALJ misapplied the law (Pet. Op. Br. at 1-15; Reply at 5), her reply also argues that the ALJ’s findings are not supported by the weight of the evidence. Specifically, Beyder points out that Daughter testified that she had not put locks on the doors to prevent Beyder from leaving. AR 152. From this, Beyder argues that the ALJ’s finding that Daughter never had to stop her mother from leaving is unsupported. Reply at 9.

This is a new issue raised for the first time in reply and has been disregarded. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. In any event, the ALJ correctly concluded that Daughter never had to stop her mother from leaving because Daughter testified to only three eloping instances and did not say there were any aborted attempts.

[6] Beyder relies on a trial court decision by former Judge Beckloff in Maryann L. v. Johnson, (“Maryann L.”) 2022 Cal. Super. LEXIS 84855. There, an adult claimant applied for and was denied protective supervision. At the administrative hearing, testimony was introduced that the claimant would engage in dangerous behaviors of eloping, unsafe use of Ajax cleaning powder, touching very hot items, and turning knobs on the gas oven. The claimant argued that DSS’s decision to deny protective services was flawed because it failed to consider what claimant would “do if left alone”. Judge Beckloff agreed and determined that the ALJ applied the wrong legal standard when determining the claimant’s eligibility for protective supervision. “The correct approach is to assess risk as if [the claimant’s familial caretakers] are not present, and Petitioner is instead alone.” Reliance on other household members to protect a petitioner cannot be used to deny protective supervision benefits. Pet. Op. Br. at 13-14.

DSS’ opposition points out that Maryann L. is an unpublished trial court opinion and has no precedential value. CRC 8.1115(a) & (b); see also TBG Ins. Services Corp. v. Superior Court, (2002) 96 Cal.App.4th 443, 447, n. 2Therefore, any reference to this case is inappropriate. Further, DSS distinguishes Maryann L. as a case where the family acted to protect the claimant and the ALJ “failed to assess Petitioner’s needs without regard to Petitioner’s household members acting to protect her” whereas here the ALJ assessed Beyder’s needs without regard to Daughter’s actions. Opp. at 12-13.

This distinction applies to elopement but not the stove knobs. Nonetheless, there were four different potential dangerous activities in Maryann L. and, unlike here, Judge Beckloff had no reason to conclude that the family had a duty to perform safeguarding services for the adult claimant.

[7] Beyder makes a policy argument that considering familial or household support when assessing a need for protective supervision harms IHSS claimants by discouraging and disincentivizing familial support. Under the ALJ’s analysis and conclusions, an applicant or their family would have no incentive to seek familial, household, or even community support. Instead, the individual would be forced to survive on their own and assume the great risk and likelihood of neglect or injury to garner necessary and critical care. Pet. Op. Br. at 16.

DSS’ opposition is correct that this policy argument is simply a reprise of Beyder’s argument that Daughter’s presence should not be the basis for denial of protective supervision. Opp. at 14-15. Daughter’s presence was not the basis of, or a factor in determining, the denial of protective supervision for elopement and was a legitimate factor for environmental modification.

[8] Bender also refers to the fact that she left the water running which the ALJ expressly did not find to be potentially dangerous. AR 12.