Judge Stephen I. Goorvitch, Case Number: 23STCP02658, Date: 2024-05-03 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP02658, Date: 2024-05-03 Tentative Ruling

Case Number: 23STCP02658 Hearing Date: May 3, 2024 Dept: 82

Jenny Zhan, on behalf of her Case No. 23STCP02658

Daughter, S.W.

Hearing Date: May 3, 2024, at 9:30 a.m.

v. Location: Stanely Mosk Courthouse

Department: 82

Kim Johnson, Director of California Judge: Stephen I. Goorvitch

Department of Social Services

[Tentative] Order Granting in Part and Denying in Part

Petition for Writ of Mandate

INTRODUCTION

Petitioner Jenny Zhan (“Petitioner”) filed this petition for writ of mandate on behalf of her daughter, S.W. (the “Recipient” or “S.W.”). S.W. has cognitive impairment, autism, epilepsy, and Angelman Syndrome. Accordingly, S.W. is a client of Eastern Los Angeles Regional Center (“ELARC”) and has been placed on a Medicaid waiver. While S.W. was a minor, Petitioner applied for In-Home Supportive Services (“IHSS”) from the California Department of Social Services (“DSS”). A social worker from the County of Los Angeles (the “County”) determined that S.W. requires 65:14 hours of monthly IHSS, effective November 5, 2021, and then increased that number to 69:56 hours, effective February 1, 2022. Petitioner challenged that decision and had a hearing before an administrative law judge (the “ALJ”). The ALJ ordered the County to rescind its determinations and issue new determinations that S.W. shall receive 71:44 hours of monthly IHSS, effective November 5, 2021, and 82:38 hours of monthly IHSS, effective February 1, 2022, with retroactive benefits. Now, Petitioner challenges two aspects of the ALJ’s decision.

First, the County denied IHSS hours for “protective supervision,” which is intended to ensure that recipients do not unintentionally harm themselves as a result of their mental condition. The ALJ agreed with that decision, finding that her “potentially dangerous behaviors” mostly are “excluded behaviors,” such as tantrums and or behavior outside the home. The ALJ found that the “only behavior for which protective supervision could be granted is the recipient’s constantly picking of her scabs and scratching the skin causing herself to bleed.” The court grants the petition on this basis because the ALJ did not sufficiently consider whether S.W.’s seizures constitute a condition that requires protective supervision.

Second, Petitioner argues that the ALJ awarded insufficient hours for “bowel and bladder care.” The ALJ ordered that S.W. shall receive 2:15 hours of monthly IHSS, effective November 5, 2021, and 3:20 hours of monthly IHSS, effective February 1, 2022. Petitioner argues that the ALJ erred in failing to consider the amount of time necessary to clean and repair the toilet after S.W. clogged the toilet with toilet paper. The court denies the writ because the ALJ considered the issue in rendering her decision.

FACTUAL AND PROCEDURAL BACKGROUND

A. In-Home Supportive Services

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

The IHSS program is governed by Welfare and Institutions Code sections 12300, et seq., and the Department’s Manual of Policies and Procedures (the “MPP”), sections 30-700, et seq. The Department issues additional guidance on IHSS benefits in All-County Letters (“ACL”) to county departments. Some pertinent provisions of the MPP and All-County Letters are summarized in the administrative decision. (See Administrative Record (“AR”) 35-56.)

B. Protective Supervision

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

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

California law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” (Welf. & Inst. Code § 12301.21(b).) That certification is made on a standard form (the SOC 821), which must be completed by a physician or other qualified medical professional. (MPP § 30-757.173(a)(1).) “The completed form SOC 821 (3/06) shall not be determinative, but considered as one indicator of the need for Protective Supervision.” (MPP § 30-757.173(a)(3).) Other pertinent information in assessing the need for protective supervision includes the social worker’s interview with the recipient. (MPP § 30-757.173(a)(5).)

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

(a) For friendly visiting or other social activities;

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

(d) To prevent or control anti-social or aggressive recipient behavior; or

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

“The Department's regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit….. [¶] Some recipients are old, suffering degenerative diseases. Others are young but retarded, epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive. For example, one autistic, blind and brain-damaged child lapses ‘into seizures and temper tantrums ... venting his frustrations by banging his head against a wall.’ Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette.’” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-615, quoting Miller v. Woods, supra, 148 Cal.App.3d at 867.) “‘Protective supervision’ appears to be similar to care given small children, that is, anticipating everyday hazards and intervening to avert harm.” (Calderon, supra, 45 Cal.App.4th at 615.)

Significantly, “protective supervision is available if ‘[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.’” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754.) Also, “eligibility for IHSS benefits must generally be reassessed on an annual basis.” (Ibid.)

C. Petitioner’s Application for Protective Supervision

At the time of the administrative hearing, S.W. was a 17-year-old female diagnosed with cognitive impairment, epilepsy, Angelman Syndrome, and autism. (AR 3.) S.W. lives with her mother. (Ibid.) On November 5, 2021, Petitioner applied for IHSS on behalf of S.W. After an assessment by a county social worker, Los Angeles County authorized a weekly amount of 65 hours and 14 minutes, effective January 1, 2022. (Ibid.) On February 28, 2022, a change assessment was conducted by telephone. (AR 4.) On March 1, 2022, County increased the hours for bowel and bladder care of S.W. from 2 hours, 15 minutes to 3 hours, 20 minutes. (AR 4.) The County did not authorize IHSS hours for protective supervision of S.W. (See AR 3-4.)

D. Administrative Hearing and Decision

On March 3, 2022, Petitioner filed a hearing request. As relevant to this writ petition, Petitioner challenged County’s determinations with respect to protective supervision and bowel and bladder care. (AR 4.) An administrative hearing was held on June 22, 2022, and July 27, 2022, before an administrative law judge (“ALJ”). (Ibid.) A social worker testified as County’s witness, and Petitioner testified on behalf of S.W. Petitioner was represented by an authorized representative at the hearing. A Mandarin interpreter provided interpretation during the hearing as needed by Petitioner. The ALJ also admitted documentary evidence, including the SOC 821 form, case assessment narrative, a letter from a behavior analyst, the individual program plan (IPP), the individualized education plan (IEP), a letter from the associate clinical supervisor, and Applied Behavior Analysis (ABA) progress notes. (See AR 4-8.)

The ALJ issued a proposed decision finding, in relevant part, that S.W. is not entitled to protective supervision and that S.W. was properly allocated time for bowel and bladder care. (AR 3-57.) On July 30, 2022, Respondent adopted the ALJ’s decision as her final decision (“Decision”). (AR 2.)

E. Relevant Findings Regarding Protective Supervision

All County Letter (“ACL”) No. 15-25 provides a four-step test to determine a child’s need for protective supervision once it has been determined that the child is mentally impaired/mentally ill. (AR 31). Specifically, each of the following must be answered in the affirmative in order to qualify for protective supervision:

1. Is the recipient nonself-directing due to a mental impairment/mental illness?

2. Is the recipient likely to engage in potentially dangerous activities?

3. Does the recipient need more supervision than a minor of comparable age who is not mentally impaired/mentally ill?

4. Does the recipient need 24 hour-a-day supervision in order to remain safely at home?” (Ibid.)

The ALJ found that factors two and three were satisfied, but found that factors one and four were not satisfied. (AR 31-35, 56.)

1. Factor One

The ALJ found that S.W. is self-directing (i.e., her actions are deliberate and intentional) “most of the time” based on her review of the Case Assessment Narrative, Petitioner’s testimony, and other information. The ALJ found that “the recipient is able to understand and carry out simple instructions, and the claimant is able to redirect the recipient before self-injurious behaviors occur.” (AR 31.) Although S.W. “will have tantrums which include crying and screaming, hitting her head, and poking her arms with a pencil … [,] the tantrums will occur when the recipient is presented with a non-preferred activity or when she is not receiving attention. Additionally, per the ABA Progress Report, the recipient will ask the same question repeatedly ‘when can I talk to mom’ ‘when can I go upstairs’ when provided with an instruction to engage in a non-preferred activity or when encountering difficulty with a task rather than engaging in tantrums.” (Ibid.) The ALJ found that “[t]hese behaviors show the deliberateness and intentionality of the recipient’s actions: acting out to get out of a preferred activity or to get attention. Tantrums are excluded behavior for which protective supervision is not granted.” (AR 31.)

The ALJ considered Petitioner’s concern that S.W. may attempt to turn on the stove on her own, but determined the evidence did not show nonself-direction. “These behaviors again are demonstrative of the recipient’s intentionality, she tries to use the stove when she is hungry or to help her mother while she is cooking, showing she is self-directing. Additionally, the claimant testified that the recipient knows not to put her hand on the stove and does not do this; showing the recipient’s awareness of the danger of touching a hot stove.” (AR 32.)

The ALJ also weighed the evidence of community safety and determined S.W.’s behavior did not rise to the level of nonself-direction. (AR 32.) The ALJ found that S.W. “can assess the danger of crossing the street, she understands it, but she cannot/does not put it to practice.” Although there were two instances of S.W. leaving the home, the evidence demonstrated that they both occurred because S.W. was looking for her mother, “which makes this behavior predictable: the recipient is not constantly and at unpredictable times trying to leave the home.” (AR 32.) Finally, for the first factor of ACL No. 15-25, the ALJ found that S.W. is not nonself-directing because she “recognizes her emotional state and independently engages in self-talk.” (AR 32.)

The ALJ acknowledged that some of S.W.’s behaviors were nonself-directing. For example, the ALJ concluded that S.W.’s “overdose of medication in May 2021 is an example of the recipient being nonself-directing. However, following the overdose the recipient informed the claimant hat she had taken all the medication in the medication container when asked what happened to the medicine. Additionally, this behavior is now prevented by environmental modifications, specifically, the claimant hides the recipient’s medications.” (AR 31-32.) Similarly, the ALJ found that “the recipient will grab food from the hot pot, which shows that she does not assess the fact that she could hurt herself by putting her hand in a hot pot or burn her mouth by eating food directly from a hot pot.” (AR 32.)

The ALJ did not consider the role of S.W.’s seizures in determining whether she is nonself-directing. (See AR 31-33.)

2. Factor Four

The ALJ found that there is no need for 24-hour supervision because “[m]ost of the recipient’s potentially dangerous behaviors are excluded behaviors for which protective supervision is not to be granted.” (AR 33.) The ALJ found that S.W. exhibits “tantrum behavior,” which does not qualify for protective supervision. The ALJ also found that S.W.’s behavior outside of the home does not qualify for protective supervision. “[P]rotective supervision is meant to safeguard the recipient in the home and is not provided for friendly visiting or other social activities. The is no indication of the recipient eloping or attempting to elope other than the instances she left the house to look for the claimant. These instances show the intentionality and predictability of the recipient’s behavior in that the recipient will go outside only if the claimant is not in the home: it is not the case that the recipient is constantly trying to elope from home.” (AR 34.)

The ALJ acknowledged that some of S.W.’s behavior would qualify for protective supervision: “The only behavior for which protective supervision could be granted is the recipient picking at her scabs causing them to bleed.” (AR 34.) However, the ALJ found that “while the occurrence of this behavior is frequent, it would not rise to level of needing 24 hour a day supervision in the order for the recipient to remain safely at home.” (AR 34.)

The ALJ discounted the role of seizures, finding that “there is no evidence that during or after a seizure the recipient is engaging in potentially dangerous activities, such as wandering away from the home.” (Ibid.) The ALJ found that “the recipient loses consciousness after a seizure” but “protective supervision cannot be granted in anticipation of a medical emergency.” (AR 34-35.)

F. Writ Proceedings

On July 27, 2023, Petitioner filed her petition for writ of mandate challenging the Decision. Respondent answered the petition. On March 5, 2024, Petitioner filed her opening brief in support of the petition. On April 3, 2024, Respondent filed her opposition. On April 18, 2024, Petitioner filed her reply. The parties have lodged the administrative record.

STANDARD OF REVIEW

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

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

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

A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

EVIDENTIARY ISSUES

The ALJ relies on the Department’s Manual of Policies and Procedures (the “MPP”), sections 30-700, et seq., and quoted certain sections in her decision. However, neither party requested that the court take judicial notice of the MPP. At the hearing, the court provided notice of its intention to take judicial notice of the MPP. The court offered to do so in writing and continue the hearing so the parties may file written objections. The parties waived notice and opportunity to be heard and indicated that they have no objection. Therefore, the court takes judicial notice of the MPP.

DISCUSSION

A. Protective Supervision

1. S.W.’s Seizures

In assessing whether S.W. qualified for protective supervision, the ALJ was required to determine whether “a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.’” (Norasingh, supra, 229 Cal.App.4th at 754.) The ALJ did not sufficiently consider whether S.W. requires protective supervision as a result of her seizures.

The ALJ found that S.W. “has had an increase in seizures since February 2022.” (AR 34.) This is supported by the evidence in the record. For example, Petitioner testified that S.W.’s seizures “increased a lot” starting in January 2022, before the February 2022 assessment. (AR 273.) There is documentary evidence, including from S.W.’s physician, suggesting that S.W. suffered regular seizures prior to February 2022. (AR 18, 20-21, 144.) Moreover, Petitioner testified that S.W. suffered many seizures in July 2022, after the February 2022 assessment. (AR 329-330.) The ALJ acknowledged that S.W. “loses consciousness after a seizure.” (AR 35.) The record contains evidence that injury may result, e.g., S.W.’s neurologist opined that “[t]he recipient is at risk of seizures which could cause her to be in situations where she can injure herself.” (AR 18.) Similarly, Petitioner testified that S.W. fell to the ground during a seizure. (AR 329-330.)

However, the ALJ did not sufficiently address S.W.’s seizures in finding that protective supervision is not necessary. The ALJ found only as follows:

[T]here is no evidence that during or after a seizure the recipient is engaging in potentially dangerous activities, such as wandering away from the home. In fact, the IPP notes that the recipient loses consciousness after a seizure, and the claimant testified that during the recipient’s most recent seizures she stood frozen and crying. Therefore, protective supervision cannot be granted in anticipation of a medical emergency.

(AR 34-35) These findings are not sufficient because the ALJ did not consider whether S.W. risks injury—which is the dispositive issue—as a result of her seizures or losing consciousness. For example, the ALJ did not consider whether S.W. might fall and injure herself if she loses consciousness as a result of a seizure. The ALJ did not address whether S.W. might choke if she has a seizure while eating, especially in light of evidence that “[t]he recipient has a history of choking . . . .” (AR 21.) The ALJ did not consider whether S.W. might drown if she has a seizure while bathing. Petitioner raised this concern during her testimony. (AR 329-330.) Although S.W. receives IHSS for “feeding” and “bathing,” the ALJ did not address whether the respective time allotments are sufficient or whether the risks associated with seizures justify additional supervision, i.e., protective supervision.

Moreover, the ALJ erred in finding that protective supervision is not appropriate because “protective supervision cannot be granted in anticipation of a medical emergency.” Although that is a correct statement of law, supervision to protect a recipient from injury as a result of falling, choking, or drowning is not “medical” or “in anticipation of a medical emergency.” (Norasingh, supra, 229 Cal.App.4th at 758-759.)

Nor did the ALJ consider whether S.W.’s seizures would qualify for protective services under Factor One, i.e., whether they are “excluded behaviors.” Petitioner points out that Norasingh is cited in the Decision’s discussion of applicable law, but not analyzed with respect to the nonself-directing element of protective supervision. (OB 9.) Accordingly, Petitioner contends that a remand is required for Respondent to consider whether S.W.’s seizures justify protective supervision. (Ibid.) Respondent does not address these arguments in its opposition brief and thereby concedes them. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].)

Therefore, the court grants the petition. The court remands the case so the ALJ may consider: (1) Whether S.W.’s seizures qualify for protective supervision under Factor One; and (2) Whether the risks associated with S.W.’s seizures and loss of consciousness risk injury that necessitates protective supervision under Factor Four.

2. The Remaining Issues

Petitioner challenges other aspects of the ALJ’s decision not to authorize protective supervision. The court finds no abuse of discretion in this regard.

a. The stove

Petitioner argues that S.W. “has attempted to turn on the kitchen stove” and contends that such behaviors make her eligible for protective supervision. (OB 6, citing AR 322-326.) The ALJ found that “the recipient’s ability to turn on the stove is a change in circumstances after the initial assessment on November 5, 2021 and one that was not reported during the change assessment on February 28, 2022.” (AR 56.) Petitioner does not address that finding or show that it was an abuse of discretion for the ALJ to limit S.W.’s claim for protective supervision to the circumstances presented in the initial assessment on November 5, 2021, and the change assessment on February 28, 2022.

Regardless, the ALJ did not abuse her discretion in finding that this was excluded behavior because it is self-directing, i.e., deliberate and intentional. The ALJ relied on evidence that: (1) S.W. “tries to use the stove when she is hungry or to help her mother while she is cooking;” (2) S.W. “knows not to put her hand on the stove and does not do this”; and (3) S.W. “does know all the safety rules but is at times impulsive and acts without thinking.” (AR 32.) Petitioner does not address this material evidence, which supports the ALJ’s conclusion that S.W. acts intentionally and has awareness of the dangers of using the stove. (See e.g. AR 324-326 [Petitioner’s testimony]; AR 18-20, 133 [summary of Case Assessment Narrative]; AR 159 [social worker’s assessment narrative, stating that “Recipient told [the social worker] she does not use the stove because she knows she might burn the house down” and S.W. knows the safety rules].)

b. S.W.’s elopement

Petitioner cites evidence that S.W. wandered outside when her mother left her home alone while she retrieved groceries from the car. (OB 7, citing 320-321.) Because S.W. went to look for her mother, they suggest intentionality and self-direction. Further, as the ALJ found, “when the claimant is home with the recipient, she will not leave the home, which makes this behavior predictable: the recipient is not constantly and at unpredictable times trying to leave the home.” (AR 32.) The weight of the evidence, including Petitioner’s testimony and the Assessment Narrative, support these findings. (See e.g. AR 321-322 [Petitioner’s testimony that S.W. left house to look for Petitioner]; AR 159 [Assessment Narrative: “Recipient knows the rules for crossing streets; she knows a red light means stop and a green light means go.”].)

c. S.W.’s overdose of medication

The ALJ considered whether S.W. qualifies for protective supervision due to a medication overdose in May 2021. The ALJ found that protective supervision was not necessary because S.W. had informed Petitioner what happened and such behavior is now prevented by environmental modifications. (AR 31-32.) Petitioner highlights her testimony about the overdose but does not develop an argument that the ALJ’s findings or conclusions were in error. (OB 7:28-8:3.) Accordingly, Petitioner does not show a prejudicial abuse of discretion related to this finding. (Code Civ. Proc. § 1094.5(b); Fukuda, supra, 20 Cal. 4th at 817.)

d. S.W.’s tantrum behavior

Petitioner cites her own testimony that S.W. will sometimes hit or bang her head or poke herself with a pencil if she is frustrated. (OB 8:19-24, citing AR 332-333.) However, as the ALJ concluded, “[t]hese behaviors show the deliberateness and intentionality of the recipient’s actions: acting out to get out of a preferred activity or to get attention.” (AR 31.) The weight of the evidence supports that finding. (See e.g. AR 326, 332-333, 159.) Further, MPP section 30-757.172 specifies that protective supervision is not authorized “[t]o guard against deliberate self-destructive … or when an individual knowingly intends to harm himself/herself.” (AR 31, 40-41.) Petitioner does not sufficiently address these issues.

B. Bowel and Bladder Care

The ALJ did not abuse her discretion in finding that S.W. properly received 2 hours and 15 minutes for bowel and bladder care, effective November 5, 2021, and 3 hours and 20 minutes, effective February 1, 2022. (AR 9.) The ALJ found that S.W. “is correctly ranked a function level 3 in this life skill area.” (AR 9.) MPP section 30-757.14(a)(2) authorizes hours in the range of 1.17 to 3.33 for recipients with a functional level 3 in the life skill area of bowel and bladder care. There are several factors for the ALJ to consider, including “[t]he frequency of the recipient's urination and/or bowel movements.” (MPP § 30-757.14(a)(3).) There are also exceptions justifying increased hours, including “if the recipient has frequent bowel or bladder accidents.” (MPP § 30-757.14(a)(4).) Accordingly, the ALJ found:

Back in November 2021 and December 2021, the recipient had bathroom accidents involving her bowels only three to four times a week. The recipient would go to the bathroom after soiling herself, use a lot of toilet paper to clean herself, and use towels to clean herself. The time being authorized is to assist the recipient with cleaning herself after bowel movements. The time for washing the recipient’s pants, underwear, and towels is authorized under the category of laundry services. Effective February 1, 2022, the recipient was correctly authorized 3:20 hours per week, which is the high range for a functional level 3. Per the claimant’s credible testimony, with the increase in the recipient’s seizures and medication, the recipient began wetting the bed at night and having accidents of peeing herself during the day as well.

(AR 9.)

Petitioner argues that a remand is necessary because S.W. “stuffed the toilet” and a member of the Behavior Training Program stated that Petitioner spends “hours cleaning and repairing the toilet.” (OB 11, citing AR 8, 128.) Petitioner has not shown that the ALJ abused her discretion in ranking S.W. as a “3” for bowel and bladder care. The court concludes that the weight of the evidence supports that ranking. (See AR 6-9 [summary of evidence]; AR 157-158 [social worker ranking S.W. as a 3 for bowel and bladder care].) Contrary to Petitioner’s assertion, the ALJ weighed all of the evidence, including Petitioner’s testimony that S.W. sometimes “will just throw a lot of toilet paper into the toilet and clog it” and that Petitioner has to “unclog the toilet.” (AR 8.) Further, the allotted hours fall within the recommended range for that ranking. Therefore, the petition is denied on this ground.

C. Petitioner’s Remaining Arguments

Petitioner raises a series of new arguments in her reply brief. For example, Petitioner argues that “Respondent abused her discretion by failing to investigate the ‘intervention’ aspect of Protective Supervision” and “[t]his abuse is the failure to provide Petitioner with a fair trial.” (Reply 6.) Petitioner also argues, for the first time in reply, that Petitioner’s testimony that S.W. cannot be left alone for more than a few minutes and sleeps with her shows that that Recipient requires 24-hour supervision. (Reply 10.) Petitioner does not show good cause to raise these arguments for the first time in reply. Accordingly, the court does not consider them. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) However, Petitioner may raise these issues on remand to the extent they relate to S.W.’s seizures.

CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1. The petition for writ of mandate is granted in part and denied in part.

2. The court shall issue a writ directing Respondent to set aside the Decision only with respect to the finding that S.W. is not entitled to protective supervision and to reconsider the matter in light of this court’s opinion and judgment, viz., whether S.W. is entitled to protective supervision based upon her seizures. (Code Civ. Proc. § 1094.5(f).)

3. The petition is denied in all other respects.

4. Petitioner’s counsel shall prepare and lodge a judgment forthwith.

5. Petitioner’s counsel shall provide notice and file proof of service with the court.

IT IS SO ORDERED.

Dated: May 3, 2024 _____________________________

Stephen I. Goorvitch

Superior Court Judge