Judge Mitchell L. Beckloff, Case 22STCP01078 2023-03-22 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01078, Date: 2023-03-22 Tentative Ruling

Petitioner, Diego P., seeks an order setting aside the final decision of Respondent, the Director of California Department of Social Services (Department), denying Petitioner protective supervision services under the In-Home Supportive Services (IHSS) program.

Petitioner’s unopposed request for judicial notice (RJN) of Exhibits A and B is granted.

“In 1973, the Legislature enacted the IHSS program to enable aged, blind or disabled poor persons to avoid institutionalization by remaining in their homes with proper supportive services. [Citation.]” (Basden v. Wagner (2010) 181 Cal.App.4th 929, 933; Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1844 (Marshall).) “The Legislature authorized a broad range of support services to eligible persons.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 868 (Miller).)

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 the supportive services are provided. (Welf. & Inst. Code,§ 12300, subd. (a).)

“Supportive services shall include domestic services and services related to domestic services, heavy cleaning, personal care services, accompaniment by a provider when needed during necessary travel to health-related appointments or to alternative resource sites, yard hazard abatement, protective supervision, teaching and demonstration directed at reducing the need for other supportive services, and paramedical services which make it possible for the recipient to establish and maintain an independent living arrangement.”

Applicants must satisfy two eligibility conditions to obtain any IHSS service. First, they must be “unable to perform the services themselves.” Second, they “cannot safely remain in their homes or abodes of their own choosing unless these services are provided.” (Welf. & Inst. Code, § 12300, subd. (a).)

To determine whether a person requires assistance with tasks for which there is an IHSS service (Welf. & Inst. Code, § 12301.2, subds. (a)-(b); MPP § 30-757.1, subd. (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, subd. (a); MPP § 30-761.1.)

Trained county social workers determine which supportive services a recipient requires, 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, subd. (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, subd. (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, subd. (a).)

Protective supervision is a benefit offered through the IHSS program. (Welf. & Inst. Code,

§ 12300, subd. (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, subd. (a).) Such persons “cannot protect themselves from injury.” (Miller, supra, 148 Cal.App.3d at 869.)

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 (1996) 45 Cal.App.4th 607, 615, 616; Marshall, supra, 17 Cal.App.4th at 1852-1853.)

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 Department standardized form (SOC 821) that a physician or other qualified medical professional completes. (MPP § 30-757.173, subd. (a)(1).) Additionally, another standardized 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 on whether an IHSS recipient qualifies for protective supervision. (Welf. & Inst. Code, § 12301.21; MPP § 30-757.173, subd. (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, subd. (a)(1)(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.)

The Department established requirements that counties must follow in assessing a minor’s need for protective supervision. (ACL No. 15-25,^{^[2]} pp. 6-7.) The minor must satisfy the following four requirements to qualify for protective supervision: (1) be nonself-directing due to a mental impairment/illness; (2) be likely to engage in potentially dangerous activities (considering whether the minor is physically able to put him/herself at risk of harm); (3) need significantly more supervision than a minor of comparable age who is not mentally impaired/mentally ill; and (4) need 24 hour-a-day supervision to remain safely at home. (Ibid.)

A child is eligible for protective supervision “only as needed because of the functional limitations of the child.” (Welf. & Inst. Code, § 12300, subd. (e)(4).) Such supervision does “not include routine child care or supervision.” (MPP § 30-763.454, subd. (e).) More specifically, a disabled minor is eligible for protective supervision only when he “need[s] more supervision than a minor of comparable age who is not mentally impaired/mentally ill.” (ACL No. 15-25, p. 7.) In fact, the level of additional supervision required must be significantly more. (Ibid.)

Protective supervision benefits are not routinely offered. They are offered, however, if there is a constant, 24 hour-a-day-need need for them. (MPP § 30-757.173(a).) Need 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:

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.

1. assess all IHSS eligible minors for a mental impairment/mental illness, and request the parent or guardian obtain available information and documentation about the existence of a minor’s mental impairment/mental illness;

2. evaluate a mentally ill/mentally impaired minor in the functions of memory, orientation, and judgment, on an individualized basis;

3. evaluate a mentally ill/mentally impaired minor even if there are no previous injuries;

5. assess whether the minor needs more supervision because of his/her mental impairment than a minor of the same age without such an impairment;

6. evaluate a mentally ill/mentally impaired minor even if the minor can be left home alone for a fixed period of time;

8. advise parents or guardians of the availability of, and the conditions for receiving Protective Supervision; and

9. not presume that services, which are otherwise compensable, will be provided voluntarily by a parent or guardian or anyone else.

(ACL No. 15-25, p. 6, emphasis added; see also id., p. 7. [“ ‘More supervision’ can be more time, more intensity, or both.”])

State regulations and guidelines expressly prohibit a minimum age limit for protective supervision. (Id., p. 6.)

Petitioner has been diagnosed with autism spectrum disorder, severe depression, emotional disturbance, asthma, and problems sleeping. (AR 4.)

The dispute here arises from the Department’s denial of IHSS protective supervision services to Petitioner.

On October 2, 2020, the County conducted an annual reassessment of Petitioner’s eligibility for IHSS. (AR 31-35.) During the reassessment, Petitioner’s mother informed the County social worker that Petitioner had been diagnosed with autism spectrum disorder, an eating disorder and emotional disturbance. (AR 31.) Through the reassessment process, the County determined Petitioner had a mental impairment but found Petitioner was not nonself-directing, likely to engage in potentially dangerous activities, or in need of a 24-hour a day supervision. (AR 33-34.)

On December 16, 2020, the County sent Petitioner a notice of action advising Petitioner it had approved him for 11:07 hours per month of IHSS. It also advised Petitioner it had denied him any IHSS hours for protective supervision. (AR 21, 76.)[3]

On March 11, 2021, Petitioner’s mother filed a request for a hearing challenging the denial of protective supervision services. (AR 4.)

On June 2, 2021, an Administrative Law Judge (ALJ) conducted the hearing requested by Petitioner. (AR 80.)

On July 12, 2021, the ALJ issued his proposed decision. (AR 2.) In the decision, the ALJ found Petitioner had a mental impairment. (AR 15.) The ALJ also found Petitioner is “not impaired in the areas of memory and orientation and is mildly impaired in judgment.” (AR 17.) Third and most importantly, the ALJ found Petitioner is “self-directing and that he therefore does not meet the criteria for protective supervision.” (AR 18.)

On July 12, 2021, the Department adopted the ALJ’s decision as its own. (AR 2.)

Petitioner challenges the Department’s decision (through the ALJ) denying him protective supervision hours under the IHSS program. Petitioner seeks relief from the court pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

There are two possible standards of judicial review: (1) independent judgment and

(2) substantial evidence. (Id., subd. (c).) Code of Civil Procedure section 1094.5 does not specify which cases are subject to independent judgment review, leaving the issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 (Fukuda).) 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.) In all other cases, the court determines whether the findings are supported by substantial evidence in light of the whole record. (See Code Civ. Proc., § 1094.5, subd. (c).)

The parties agree the court must use its independent judgment to review the Department’s administrative decision.[4]

Evidence Code section 664 creates a presumption “that official duty has been regularly performed.” (Evid. Code, § 664.) “In a section 1094.5 proceeding, it is the responsibility of the petitioner to produce a sufficient record of the administrative proceedings; ‘. . . otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed’ prejudicial abuse of discretion.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) This presumption of correctness includes giving great weight to the agency’s credibility determinations even where the standard of review is independent judgment. (Fukuda, supra, 20 Cal.4th at p. 819.)

For the independent judgment standard of review, pursuant to Code of Civil Procedure section 1094.5, subdivision (c), the court decides whether the weight of the evidence supports the administrative findings (rather than whether substantial evidence supports the findings). Thus, a trial court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Id. at 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

“[W]hether an agency has proceeded lawfully is a legal question that the trial court and appellate court both review de novo.” (Stewart Enterprises, Inc. v. City of Oakland (2016) 248 Cal.App.4th 410, 420.) That is, the court exercises its independent judgment on legal issues.

Petitioner argues the ALJ and the Department applied the incorrect standard when considering whether Petitioner qualified for protective supervision services.

Pursuant to the Department’s regulations, the conditions required to demonstrate protective supervision eligibility 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, subd. (a).) The Department’s regulations make clear protective supervision is “available for nonself-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171)

The Department (through the ALJ) found Petitioner did not meet the criteria for protective supervision and did not need such services to remain safely at home. The ALJ’s decision noted Petitioner is self-directing, is not impaired in the areas of memory and orientation, and is only mildly impaired in judgment. (AR 18.)

Petitioner argues the ALJ ignored the simple statutory construction of the disjunctive “or” in MPP section 30-757.171. Petitioner asserts the ALJ treated “nonself-direction” as a separate eligibility requirement for protective supervision. That is, after the ALJ found Petitioner was self-directing, the ALJ did not consider whether because of confusion, mental impairment or mental illness Petitioner needed protective supervision to remain at home safely.

The court finds Petitioner’s challenge well taken. The Department’s decision reveals the ALJ misinterpreted MPP section 30-757.171 by reading the “or” in the regulation as a conjunctive instead of a disjunctive. (White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [citations omitted] [“use of the word ‘or’ in a statute indicates an intention to use it disjunctively so as to designate alternative or separate categories”]; see also In re Marriage of Haugh (2014) 225 Cal.App.4th 963, 971.) Rather, the plain reading of MPP section 30-757.171 allows the issuance of protective supervision for persons who satisfy at least one of the four categories: nonself directing, confused, mentally impaired, or mentally ill.

Accordingly, the ALJ’s use of “nonself-directing” as an independent requirement to qualify for protective supervision conflicts with the Department’s own regulations. (AR 18.)

The Department does not quarrel with Petitioner’s interpretation of MPP section 30-757.171 and use of the word “or” in the regulation as a disjunctive. Instead, the Department reports “[q]ualifying for protective supervision is a very high bar.” (Opposition 14:17.) The Department notes to obtain protective supervision services an individual must be “likely to engage in potentially dangerous conduct due to non-self-direction, confusion or mental impairment” and require constant supervision to remain safely at home. (Opposition 14:17-25 [citing MPP § 30-757.173 and Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754].) The Department appears to concede Petitioner’s plain language interpretation of the regulation. (Opposition 14:17-19. [“Protective supervision services are provided only to eligible nonself-directing, confused, mentally impaired, or mentally ill individuals . . . .” (Emphasis added.)])

Despite the Department’s apparent agreement on the law, the Department’s decision (through the ALJ) demonstrates otherwise. The ALJ reported, “A person must be both mentally impaired or mentally ill and nonself-directing to be eligible for Protective Supervision.” (AR 8. See also AR 15.) The ALJ explained, “It is not sufficient for someone to just be mentally impaired/mentally ill, there must also be evidence that he/she is nonself-directing and who would most likely engage in potentially dangerous activities.” (AR 8.)

The Department (through the ALJ) found Petitioner did not qualify for protective supervision because “it is determined based upon a preponderance of the evidence that the Child is self-directing and that he therefore does not meet the criteria for protective supervision.” (AR 18.) The Department’s analysis is incomplete. Pursuant to the plain language of MPP section 30-757.171, the analysis of eligibility does not conclude with a finding a child is self-directing. The Department therefore erred and failed to proceed as required by law.

Despite the legal error, the Department contends Petitioner has suffered no prejudice. The Department contends its ultimate conclusion that Petitioner is not entitled to protective supervision is correct.

As a person diagnosed with autism spectrum disorder, Petitioner meets the requirements of mental impairment or illness under MPP section 30-757.171. The ALJ made such a finding. (AR 15. [“The County conceded that Claimant is mentally impaired due to his diagnoses of autism spectrum disorder, emotional disturbance and severe depression.”])

Based on the Department’s legal concession in this proceeding and the ALJ’s finding,[5] the remaining issue is whether Petitioner satisfies the regulation’s other eligibility requirement—a need for 24-hour-a-day supervision to allow Petitioner to remain at home safely. (See also ACL No. 15-25, pp. 6-7 [likelihood to engage in potentially dangerous activities and need for significantly more supervision than a minor of comparable age who is not mentally impaired or ill].)

The Department argues “[t]he evidence does not demonstrate that [Petitioner] meets each of the remaining requirements for protective supervision, i.e., whether he is: (a) likely to engage in potentially dangerous activities; (b) needs twenty-four-hours-a-day of supervision in order to remain at home safely; and (c) needs significantly more supervision than a minor of comparable age who is not mentally impaired/mentally ill.” (Opposition 17:7-11.)

In response, Petitioner asserts the ALJ failed to “bridge the analytic gap” between the findings and the conclusion Petitioner is self-directing as required by Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 (Topanga). Petitioner explains non self-directing is an “[inability] to assess danger and risk of harm, thereby creating a likelihood that the individual may engage in potentially dangerous activities that may cause self-harm.” (Opening Brief 8:22-9:2.) Petitioner’s argument is well taken.

The ALJ concluded although Petitioner is mentally impaired, he is not impaired in the areas of memory and orientation, and is only mildly impaired in judgment. (AR 18.) Those findings provided the basis for the ALJ’s finding Petitioner “is self-directing.” (AR 18.) Specifically, the ALJ found:

“Because it is determined that the Child is not impaired in the areas of memory and orientation and is mildly impaired in judgment, it is determined based upon a preponderance of the evidence that the Child is self-directing and that he therefore does not meet the criteria for protective supervision.

Accordingly, based on the totality of the evidence in the record, it is determined that the County correctly denied Claimant’s request for protective supervision for the Child. Although the Child is mentally impaired, the evidence in the record supports the determination that the Child does not meet the criteria for protective supervision because he is self-directing.” (AR 18.)

An administrative hearing officer is required to issue findings that provide sufficient explanation so the parties may determine whether, and upon what basis, to review the decision. (Topanga, supra, 11 Cal.3d at 514-515.) “[I]mplicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Id. at 515; see also Reply 4:6-5:5.)

The Department suggests despite the ALJ’s findings, Petitioner is not entitled to protective supervision services because Petitioner does not meet the other requirements of MPP section 30-757.173. While that may be true, the ALJ did not make such findings. “[T]he court cannot cure the agency’s improper finding. [Citation.] To permit such a post hoc cure would make unattainable the goals of findings elaborated in Topanga [].” (American Funeral Concepts v. Board of Funeral Directors (1982) 136 Cal.App.3d 303, 311.) The court is not permitted to “cut[] and past[e] its premise upon an agency determination founded on a different premise.” (Ibid.) Thus, the court cannot examine the record and make findings not made by the ALJ to cure a flawed agency decision.

Accordingly, the court agrees with Petitioner. The Department cannot now attempt to bridge the gap between raw evidence and an unstated finding. (Reply 2:6-13.) Even if the Department were to persuasively show the raw evidence could support such a finding, the critical issue is whether the ALJ (and Department) relied on that evidence to reach that finding. The court cannot “fill the breach by supplying its own finding.” (American Funeral Concepts v. Board of Funeral Directors, supra, 136 Cal.App.3d at 311.)

Based on the foregoing, the petition is GRANTED and the decision is set aside. The matter is remanded for reconsideration in light of the court’s opinion and judgment. Nothing herein is intended to limit or control in any way the discretion legally vested in the Department.

[1] RJN, Ex. A. contains the MPP.

[2] RJN, Ex. B contains the all county letter.

[3] The County’s assessment was consistent with those services Petitioner received in the past. (AR 66.)

[4] However, Petitioner also argues that he “is not claiming that the findings are not supported by the evidence, pursuant to CCP § 1094.5(c).” (Opening Brief 1, fn 3; Reply 1:21-24.)

[5] As noted earlier and as apparently conceded by the Department, a finding of mental impairment without a finding of non self-directing is sufficient to obtain protective supervision where the individual needs 24-hour-a-day supervision to remain safely at home.