APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. (Super. Ct. No. 37-2010-00106799- CU-WM-CTL)
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PUBLICATION
The In-Home Supportive Services (IHSS) program enables aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services. (Welf. & Inst. Code, §§ 12300 et seq., undesignated statutory references are to this code.) In this case, we examine whether an overpayment occurred where an individual provider admitted that he received payments for providing IHSS services, but that he did not personally provide any services. Instead, he informally subcontracted the provision of services to another family member.
As we shall discuss, the administrative hearing officer's decision finding that an overpayment occurred was supported by substantial evidence. Accordingly, we reverse the trial court's decision granting the individual provider's petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, the County of San Diego (the County) determined that Nancy Bedoe was eligible to receive IHSS. Nancy chose her son, Michael Bedoe, as her individual provider. (For clarity and ease of reference, we refer to these individuals and other witnesses sharing the same last name by their first names.) In 2010, the County sought return of $29,560 it had paid Michael between March 2007 and June 2009, on the ground he did not perform the services. Michael sought an administrative review of the County's overcharge determination. At an administrative hearing, a hearing officer heard testimony from Michael, Nancy and others.
Michael testified that he informed the County that he lived in Los Angeles County, but intended to move to San Diego. Michael, however, never moved to San Diego because he became disabled. Michael admitted that from about March 2007 to August 2009 he received payments for providing IHSS services, but that he did not provide these services. Instead, his sister Julie, who lived with Nancy provided the services. Nancy or Julie mailed the monthly IHSS timesheets to Michael. Michael then filled out and signed the timesheets based on the IHSS services that Julie provided.
Michael obtained the IHSS checks and deposited most of the money into Nancy's bank account because Julie did not have a bank account. Michael kept about $100 or $200 from each check for "basic taxes and stuff." Michael claimed that Nancy and Julie worked out what to do with the money deposited into Nancy's account. Nancy testified that the payments deposited into her account were used by Julie to pay the monthly rent on Nancy's home. Michael admitted that the County explained his rights and responsibilities as a care provider and that he should have informed the County of this arrangement, but that he failed to do so.
Yoko Tanaka, a County representative, confirmed that Michael never informed her that he would not be providing Nancy's care. She testified that IHSS rules and regulations did not allow subcontracting of IHSS services. Tanaka testified that Michael's actions constituted subcontracting because IHSS provider payments are intended to pay an individual provider to provide care for the recipient and are not intended to be used for the recipient's rent or other expenses. Finally, Avery Richey, a District Attorney investigator, testified that Julie told him that she was never offered any money for taking care of Nancy, that she never received any money, and that she received a place to live in exchange for taking care of Nancy. (Although Michael objects to Richey's testimony as inadmissible hearsay, this objection was forfeited as it was not made below. In any event, at the administrative hearing, hearsay is admissible to supplement or explain other evidence. However, hearsay, if objected to, is not sufficient to support a finding, unless it would be admissible in a civil action -- in other words, unless it is within an exception to the hearsay rule. (Gov. Code, § 11513, subds. (c), (d).)
The hearing officer subsequently issued a decision upholding the overcharge determination, finding that an overpayment occurs where an individual provider "submits timesheets and collects payment for more hours than actually worked." The hearing officer found it was undisputed that Michael submitted claims and received provider payments from IHSS from March 2007 to August 2009, but that he did not provide any services to the IHSS recipient.
Michael filed a petition for writ of mandate in the San Diego County Superior Court. The trial court granted the petition, finding that the hearing officer's decision was not supported by substantial evidence. The trial court acknowledged that, "[i]n her administrative decision . . . the hearing officer interpreted the IHSS statutory and regulatory scheme to not allow a provider to be paid for services performed for the recipient by another person." It found, however, that "[e]ven assuming, arguendo, that the hearing officer's interpretation is implied by the IHSS statutory and regulatory scheme, a lay person such as [Michael] could not have been expected to know that he was prohibited from arranging for another person to perform the services for the recipient." The County timely appealed.