G.R. v. Department of Developmental Services

4 N.E.3d 926, 84 Mass. App. Ct. 791, 2014 WL 563291, 2014 Mass. App. LEXIS 13
CourtMassachusetts Appeals Court
DecidedFebruary 18, 2014
DocketNo. 12-P-951
StatusPublished
Cited by2 cases

This text of 4 N.E.3d 926 (G.R. v. Department of Developmental Services) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.R. v. Department of Developmental Services, 4 N.E.3d 926, 84 Mass. App. Ct. 791, 2014 WL 563291, 2014 Mass. App. LEXIS 13 (Mass. Ct. App. 2014).

Opinion

Katzmann, J.

Through his guardian, G.R., a severely intellectually disabled individual who resides at the Femald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3.3 We focus our analysis on whether the Department of Developmental Services (DDS) presented the administrative magistrate at the DALA hearing with substantial evidence to support her decision that the interfacility transfer would be in G.R.’s best interest. After reviewing the administrative record and the parties’ submissions, we conclude that the magistrate’s decision was supported by substantial evidence and that there is no ground to set aside the DALA’s decision. We affirm the judgment of the Superior Court approving the DALA’s decision. See G. L. c. 30A, § 14(7).

1. Background. At the time of the administrative hearing, G.R. was sixty-six years old. He has lived at FDC since 1956. G.R. is severely intellectually disabled as well as blind and deaf. He cannot communicate verbally, although he will vocalize sometimes.

In 2003, the year that its closure was announced, FDC served 280 residents. In November, 2010, FDC only served twenty-three residents. There are over eighty buildings on the FDC [793]*793campus, and approximately fifty are not in use. As an older facility, FDC has extensive physical plant maintenance issues; however, funds are only available for necessary repairs, rather than renovations. There have also been significant staffing changes associated with FDC’s closure. From 2004 to the time of the administrative hearing, there were fifteen consolidations in residences or day programs. Staff members have transferred to other facilities, have retired, or have been laid off.

As a Ricci class member, see Ricci v. Okin, 823 F. Supp. 984 (D. Mass. 1993) (Ricci III), with special eligibility for services, G.R. is entitled to a lifetime of supports from DDS without regard to “the availability of resources.” 115 Code Mass. Regs. § 6.07(l)(a) (2009). His guardian, however, cannot dictate where those supports are provided. See Ricci v. Patrick, 544 F.3d 8, 19 (1st Cir. 2008), cert. denied, 556 U.S. 1166 (2009) (Ricci V).4

The Legislature has made clear that the decision to close FDC does not reduce its commitment to the individual residents of FDC, including Ricci class members like G.R. See, e.g., St. 2011, c. 68, § 2, item 5930-1000 (“any client transferred to another ICF [Intermediate Care Facility]/MR as the result of a facility closure shall receive a level of care that is equal to or better than the care that had been received at the closed ICF/ MR”); M.D. v. Department of Developmental Servs., 83 Mass. App. Ct. 463, 467 n.8 (2013) (M.D.). Thus, before it may close FDC, DDS must find placements to which to transfer each resident that will provide him or her with improvements in his or her services and quality of life and be in his or her best interest. See G. L. c. 123B, § 3.

DDS has proposed to transfer G.R. from his current residence at FDC to Heffron Hall apartment 4B at WDC. On May 28, 2010, DDS, as required by 115 Code Mass. Regs. § 6.63 (2009), and G. L. c. 123B, § 3, issued a forty-five day notice and request for proposed facility transfer to G.R.’s guardian. The guardian [794]*794objected to the transfer, and DDS then referred the case to DALA. A DALA magistrate conducted a hearing over three days in the fall of 2010. On April 14, 2011, the DALA magistrate concluded that DOS’s proposed transfer of G.R. to WDC was in his best interest. On March 28, 2012, a Superior Court judge affirmed the DALA magistrate’s decision. The guardian then filed a timely notice of appeal to this court.

2. Standard of review. This is an appeal under G. L. c. 30A, § 14. By statute, therefore, we must review the conclusion of the administrative magistrate to determine whether it is supported by “substantial evidence.” G. L. c. 30A, § 14(7)(e). “[T]o determine whether an agency’s decision is supported by substantial evidence, we examine the entirety of the administrative record and take into account whatever in the record fairly detracts from the supporting evidence’s weight.” Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 390 (1999). We defer to the administrative magistrate’s subsidiary factual findings unless they are unsupported by substantial evidence. See, e.g., Kippenberger v. Board of Registration in Veterinary Med., 448 Mass. 1035, 1036 (2007). Moreover, “ ‘it is for the agency, not the reviewing court, to weigh credibility of witnesses and resolve factual disputes involving contradictory testimony.’ In addition, the reviewing court must defer to the agency’s right to draw inferences from the testimony and evidence before it.” Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674 (2010), quoting from Cobble v. Commissioner of the Dept. of Social Servs., supra at 393 n.8.

Ultimately, “substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981), quoting from G. L. c. 30A, § 1. Where an administrative decision is supported by substantial evidence, we “may not replace the [administrative magistrate’s] choice between two conflicting views even though we might justifiably have made a different choice had the matter been before us in the first instance.” Hanover Ins. Co. v. Commissioner of Ins., 443 Mass. 47, 50 (2004).

3. Findings of fact. During the three-day administrative hear[795]*795ing, the magistrate heard from a long list of witnesses5 and then arrived at the following findings of fact. G.R. is severely intellectually disabled. He is also blind and deaf. He cannot communicate verbally, although he will vocalize sometimes. When he is frustrated, upset, or angry, G.R. will lightly touch his torso or the side of his head as a warning. If the warning is not heeded, G.R. will hit himself harder or become aggressive toward others. G.R. has a seizure disorder, which is controlled by medication, the levels of which are measured regularly and adjusted when necessary. G.R. also has a number of additional medical conditions.

G.R. currently lives in cottage 8 at FDC. G.R. moved to cottage 8 from Farrell Hall at FDC as part of an internal consolidation. The transition went smoothly. In advance of the move, G.R. and an orientation and mobility specialist visited cottage 8 to explore the perimeter of the space. The orientation and mobility specialist helped G.R. identify landmarks to orient him to the new space. Direct care staff who were familiar to G.R. were also present during the successful transition process.

Cottage 8 is a horseshoe-shaped structure with two sides which can each accommodate eight people. A shared kitchen, pantry, dining area, and office space are located in the middle of the cottage. Each side contains four bedrooms, three and one-half bathrooms, a living room, and a sunroom. G.R. lives with three other men, two of whom are blind. G.R.

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Bluebook (online)
4 N.E.3d 926, 84 Mass. App. Ct. 791, 2014 WL 563291, 2014 Mass. App. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gr-v-department-of-developmental-services-massappct-2014.