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Harbor Regional Center v. Office of Administrative Hearings

October 22, 2012

HARBOR REGIONAL CENTER, PLAINTIFF AND APPELLANT,
v.
OFFICE OF ADMINISTRATIVE HEARINGS, DEFENDANT AND RESPONDENT; HANNAH G., A MINOR, ETC., ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.



(Super. Ct. No. BS123942) APPEAL from a judgment of the Superior Court of Los Angeles County. Robert H. O'Brien, Judge.

The opinion of the court was delivered by: Bigelow, P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Harbor Regional Center (Harbor) appeals from the judgment in this administrative mandate action, contending that the trial court erred by determining that an Administrative Law Judge (ALJ) from the state's Office of Administrative Hearings (OAH) had jurisdiction under the Lanterman Developmental Disabilities Services Act (Lanterman Act or Act; Welf. & Inst. Code, § 4500 et seq.) to order the center to pay a higher wage to the in-home care provider of a severely disabled girl.*fn1 We conclude that under the circumstances of this case, jurisdiction to hear such disputes rests with the OAH, and therefore affirm the judgment.

INTRODUCTION

After several years of acquiescing to administrative law orders to fund salaries above the established rate to the caregivers of a profoundly disabled girl receiving services under the Lanterman Act, Harbor chose to dispute a temporary pay increase of approximately $1,650 for a substitute caregiver. At issue over this small sum are the rights of developmentally disabled children to contest decisions by service agencies such as Harbor to refuse funding for pay increases above the state-approved general rate. We hold that such increases may be required by unique circumstances in order to fulfill the Lanterman Act's mandate to take all steps possible to keep such children at home with their families.

FACTS AND PROCEDURAL HISTORY

1. Background on Hannah's Medical Condition

Within a few months of Hannah G.'s birth in 1996, she was diagnosed with Canavan disease, a rare genetic defect that causes progressive deterioration of myelin, the so-called "white matter" of the brain that protects nerve function. Symptoms such as visual inattentiveness and a decline in motor skills eventually progress to loss of muscle tone, deafness, inability to move, seizures, feeding problems, an enlarged head, and lack of cognitive skills. There is no cure and the disease is always fatal. Most children die by age 4, though some may live into their teens or early adulthood.

By 2009, when Hannah was almost 13, she was 42 inches tall and weighed 42 pounds, a size more typical of a 6-year-old. She was blind, and was unable to walk, feed or care for herself, or sit up without help. As a result, Hannah required around-the-clock care for all of her needs. Despite these disabilities, Hannah could hear and understand what people said, and could respond in turn by whining or through body language. She needed to be told in advance if her routine would change. If not, she became upset. Hannah was considered highly intuitive and aware of other people's feelings.

Over the years, Hannah's mother, Sandra G., had devised an extensive daily regimen that included range of motion exercises, stretching, and tactile stimulation designed to ward off the effects of Canavan disease. This program had been largely successful, and Hannah was doing much better than the typical Canavan sufferer.

Although Hannah's parents took on much of the burden of her care, Hannah's disabilities qualified her for assistance under the Lanterman Act and other programs. By the time of the 2009 administrative hearing at issue here, the family received 283 hours of in-home support each month through Los Angeles County and 372 hours per month of non-medical care under the Lanterman Act through Harbor. Harbor is one of 21 nonprofit corporations approved by the California Department of Developmental Services (DDS) to oversee the delivery of services under the Act. Harbor in turn contracted with Cambrian Home Care to provide services to Hannah.

2. Administrative Rulings Order Harbor to Provide Increased Care and Fund Higher Caregiver Wages

The high level of care Hannah receives was the result of a series of orders by ALJ's from the OAH who conducted several hearings between 2000 and 2009 pursuant to Hannah's right to a fair hearing under the Lanterman Act.*fn2 (§§ 4705-4706.)

As a result of these hearings, Harbor was first ordered to increase the amount of in-home care it was funding for Hannah from 84 hours a month to 84 hours per week. Harbor was later ordered to reimburse Sandra more than $28,000 she had paid to supplement the income of, and provide sick leave and vacation pay to, the Cambrian employee who had become Hannah's primary caregiver. Harbor was eventually ordered to make that pay increase prospective.*fn3

These administrative rulings were based on Lanterman Act requirements that regional centers be flexible and innovative when designing programs for each individual disabled person they served, and take all steps possible to keep disabled children at home. These policies were called into play, the ALJ's ruled, because of the program Sandra had developed to deal with Hannah's unique and extraordinary disabilities. As one ALJ concluded, instead of a typical request for services, Sandra "has created a behavioral and living skills program for her child and has fully implemented that program for [Hannah]" and was essentially seeking funding for that program.

Sandra's program required a level of care and commitment that most prospective caregivers could not meet, especially with the low level of compensation offered by Cambrian -- $9.50 per hour with no vacation time or sick leave. This was compounded by Sandra's high expectations, the odd work hours, and transportation difficulties getting to Sandra's home. Nearly all the prospective caregivers that Cambrian sent to the house walked away from the job because of these issues.

As a result, Sandra went through outside employment agencies to locate adequate caregivers on her own. One of those, Vivian Mendez, began working with Hannah approximately in 1997, and began to be employed through Cambrian in February 2000. Mendez eventually became Hannah's primary caregiver. Over the years, Mendez formed a close bond with Hannah and her family, and had become intimately familiar with Hannah's program and the girl's needs. The work Mendez performed was much harder than that of most home health aide workers. Losing Mendez would "devastate" Hannah's care, and it would take a long time to find someone to replace her.

Even though Harbor had increased Mendez's hourly wage to $11.50 in recognition of these facts, the increase was not enough to have her remain as Hannah's caregiver. Sandra therefore paid Mendez extra wages out of her own pocket, along with sick leave and vacation time. Because Cambrian was unable to provide adequate caregivers under its normal employee compensation plan, and because the Lanterman Act required flexibility to meet unusual circumstances, Harbor was first ordered to reimburse Sandra for the sums she had paid Mendez, and was later ordered to fund a permanent pay raise to $16.25 per hour, along with vacation time and holiday pay. Another raise of 49 cents per hour was ordered in 2008 based on Mendez's superior qualifications.

After Harbor stopped funding vacation pay for Mendez in 2008, an ALJ ordered it to resume doing so because Mendez's services were invaluable and no other comparable services were available.

3. Harbor Is Ordered to Fund a Higher Wage for Mendez's Temporary Replacement

The administrative mandate action that led to the judgment on appeal here arose from a July 2009 hearing initiated by Sandra to make Harbor fund a temporary pay raise of $2.50 per hour to Irma Murphy, who had taken over Mendez's role as Hannah's primary caregiver while Mendez was out on maternity leave. The ALJ who conducted that hearing concluded that Sandra had proven Hannah's entitlement to that order because Murphy was assuming Mendez's role during her maternity leave and was qualified to do so. The ALJ also found that this was "a cost-effective way to meet [Hannah's needs]." The ALJ therefore ordered Harbor to reimburse the family for amounts it had paid to Murphy to cover the wage difference, and to fund the increased salary from then on until Mendez returned from her maternity leave.*fn4

4. Harbor's Administrative Mandate Petition

In response to the ALJ's July 2009 order to fund a temporary pay increase for Murphy, Harbor brought an administrative mandate action in superior court against OAH, naming Hannah as the real party in interest.*fn5 (Code Civ. Proc., § 1094.5, subd. (b).) The petition did not dispute any of the underlying facts concerning Hannah's condition or the services she required. Instead, it alleged that only DDS had the power to determine pay rates for service providers like Cambrian, and that pursuant to DDS regulations enacted to implement the Lanterman Act, the right to appeal any such decision rested solely with Cambrian. The petition also alleged that the temporary pay increase order violated recent legislation that barred any rate increases due to the state's fiscal crisis. Based on this, Harbor alleged that OAH exceeded its jurisdiction and abused its discretion.

The record from the administrative hearing was admitted in evidence at trial, including the transcript of witness testimony, the previous administrative hearing orders, and various documents relating to Hannah's condition and need for care, including the individual plan developed by Harbor and Sandra for that care.

Sandra testified that she devised Hannah's extensive daily regimen, which included range of motion exercises, massage, tactile stimulation, and oral motor exercises to help Hannah eat and drink. According to Sandra, Cambrian cannot just send over a new caregiver because it takes weeks of training by Sandra to learn how to handle Hannah safely and competently. Sandra did not think she could leave the house for 10 minutes with such persons because they would not know how to pick up Hannah, put her in her exercise equipment, feed her or give her water, or help her if she had trouble swallowing.

The level of care Hannah gets is so intense, Sandra testified, that without appropriate care at home, the only alternative, as Harbor once advised, would be placing Hannah in a pediatric nursing home. Doing so would disrupt the lives of Hannah and her family, and was something they could not afford.

Ed Swan is a Harbor service coordinator and had been Hannah's counselor since 2006. He testified that respite care is designed to give parents a break from caring for a disabled child, and that Cambrian is a respite care agency. However, the care Hannah gets is not respite care and is considered non-medical. Swan agreed that most of Hannah's caregivers had been located by Sandra, and acknowledged the difficulties in finding adequate caregivers, including the travel time and the rigorous program of care. According to Swan, not everyone could carry out Hannah's program because it was so physically demanding that her caregivers had to be physically fit.

Paul Quiroz, Cambrian's director of operations, testified that Cambrian's contract with Harbor was for respite care. Quiroz confirmed the problems in finding adequate caregivers and agreed that Sandra had had the most success doing so. He admitted that due to the nature of the care Hannah required, Cambrian did not have a ready pool of available caregivers to draw on for her. Quiroz had been with Cambrian since 2002 and believed that Hannah's caregivers were excellent and that her condition had improved over the years.

Michele Carlton, a Cambrian employee who did home visits with Hannah for more than four years, testified that Sandra did most of the caregiver training and that Hannah had become stronger and healthier over time.

The trial court found that OAH had jurisdiction to order Harbor to fund Murphy's temporary pay increase, and that the ALJ who conducted the hearing had not abused his discretion. It then entered judgment for Hannah. Harbor contends the trial court erred.

STANDARD OF REVIEW

At issue in administrative mandate proceedings is whether the agency acted without or in excess of jurisdiction, whether there was a fair hearing, and whether there was a prejudicial abuse of discretion. An abuse of discretion occurs when the agency did not proceed in the manner required by law, its order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

In reviewing the hearing officer's decision, the trial court had to exercise its independent judgment on the evidence presented in the administrative hearing and determine whether the weight of that evidence supported the decision, which carries a strong presumption of correctness. We review the trial court's judgment to determine if it is supported by substantial evidence. (Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1130.) However, we exercise independent review to the extent we determine legal issues such as the interpretation of statutes and administrative regulations. (Silver v. Los Angeles County Metropolitan Transportation Authority (2000) 79 Cal.App.4th 338, 348.)

Harbor contends that the evidence is undisputed, and that we therefore exercise independent review of both the legal and factual issues. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 722.) Certainly some of the facts are undisputed, but they are merely the framework for our analysis - the who, what, when, and where. As set forth in our analysis, however, the applicability of the various Lanterman Act provisions at issue here turns in part on facts that Harbor hardly acknowledges or discusses - Hannah's medical condition, her need for certain services under the Act, the difficulties in finding and keeping suitable caregivers without the increased pay, the indispensable role played by Mendez in meeting those needs and thereby keeping Hannah at home, and the need to have Murphy assume those duties during Mendez's maternity leave.

It appears to us that these facts are undisputed only in the sense that Harbor's failure to discuss them has waived any sufficiency of the evidence challenge it might otherwise have mounted. The same is true of the administrative decisions issued in every hearing except for the one at issue on appeal. Because Harbor never challenged those rulings by way of a mandate petition in superior court, its failure to exhaust its judicial remedies makes the factual findings in those rulings final and binding. (In re Michael K. (2010) 185 Cal.App.4th 1112, 1126 & fn. 10; California School Boards Assn. v. State of California (2009) 171 Cal.App.4th 1183, 1201.) As a result, although the substantial evidence standard applies to the trial court's rulings, ...


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