California Court of Appeals, First District, Fourth Division
Contra Costa County Superior Court No. N11-1247 Hon. Judith S. Craddick Judge.
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Bay Area Legal Aid, Katherine Siegfried, Bob Capistrano and Kari Rudd for Plaintiff and Appellant.
Kamala D. Harris, Attorney Genercl, Julie Weng-Gutierrez, Assistant Attorney General Susan M. Carson and Ninrod P. Elias, Deputy Attorneys General, for Defendant and Respondent.
Amanda Norasingh-a young adult suffering from significant medical and mental disabilities-appeals from the trial court’s denial of her petition for writ of administrative mandamus. Through these writ proceedings, Norasingh seeks reinstatement of protective supervision benefits under the In-Home Supportive Services (IHSS) Program administered by the State Department of Social Services (CDSS). After a hearing, an administrative law judge (ALJ) concluded tat Norasingh was no longer eligible for the protective supervision benefits that she had been receiving since 2005. The trial court subsequently affirmed the decision of the ALJ. Norasingh contends on appeal that the trial court’s order upholding the ALJ’s decision was legally flawed and not supported by substantial evidence. Finding that a persistent misconception regarding the scope of Norasingh’s mental impairment has fatally undermined the eligibility determination in this case, we reverse.
A. Protective Supervision Under the IHSS Program
“IHSS is a state social welfare program designed to avoid institutionalization of incapacitated persons. It provides supportive services to aged, blind, or disabled persons who cannot perform the services themselves and who cannot safely remain in their homes unless the services are provided to them. The program compensates persons who provide the services to a qualifying incapacitated person.” (Basden v. Wagner (2010) 181 Cal.App.4th 929, 931 [104 Cal.Rptr.3d 394] subdivision (b) of section 12300 of the Welfare and Institutions Code,  the supportive services available under the IHSS program 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.”
CDSS is responsible for overseeing the IHSS program and has promulgated regulations to assist in its implementation. (See Cal. Dept. Social Services Manual of Policies and Procedures (MPP), §§ 30-700 to 30-785; Miller v. Woods (1983) 148 Cal.App.3d 862, 868 [196 Cal.Rptr. 69] (Miller).) Administration of the IHSS program, however, falls to county welfare
departments, under the supervision of CDSS. (Miller, supra, 148 Cal.App.3d at p. 868.) Thus, it is the counties that “process applications for IHSS, determine the individual’s eligibility and needs, and authorize services.” (Basden, supra, 181 Cal.App.4th at p. 934.) Determinations made by the counties with respect to IHSS benefits are reviewable by hearing before CDSS at the recipient’s or provider’s request. (Miller, supra, 148 Cal.App.3d at p. 868.)
At issue in this case is the provision of protective supervision services under the IHSS program. According to CDSS regulation, protective supervision consists of monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill recipients in order to safeguard those individuals against injury, hazard, or accident. (See MPP, §§ 30-757.17, 30-757.171.) As such, protective supervision involves “not only the observation of behavior to safeguard the individual against harm, but also the intervention to prevent harm ‘when the disabled person engages in potentially dangerous conduct.’ ” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 616 [52 Cal.Rptr.2d 846] (Calderon), italics omitted, quoting Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1846;
[22 Cal.Rptr.2d 220] (Marshall).) Protective supervision is not available, however, when the need is caused by a “medical condition” and the form of supervision required is “medical.” (MPP, § 30-757.172(b);
see also Marshall, supra, 17 Cal.App.4th at p. 1853 [describing protective supervision as “nonmedical oversight, akin to baby-sitting”].) Nor may it be provided in “anticipation of a medical emergency.” (MPP, § 30-757.172(c).) Finally, protective supervision is only warranted 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), italics added.)
B. Appellant’s History of Protective Supervision
Norasingh is a young woman in her twenties who suffers from a host of medical and mental health problems, including congenital brain malformation, developmental delay, mental retardation, diabetes, asthma, epileptic seizures, and pseudoseizures. Pseudoseizures are psychological events which superficially resemble epileptic seizures. Norasingh lives at home with her
parents and younger sister. In 2009, Norasingh’s mother and father also became her limited conservators. Under the terms of the limited conservatorship, Norasingh’s parents are entitled to determine her residence and make her medical and educational decisions. The conservatorship also limits Norasingh’s rights to marry, enter into contracts, and control her social and sexual relationships.
Norasingh first began receiving IHSS benefits in August 2004. She was initially determined to be eligible for 32.90 IHSS hours, with no benefit for protective supervision. Norasingh’s mother is her paid IHSS provider. In September 2004, Norasingh filed a request for hearing, disputing the number of IHSS hours authorized. Specifically, Norasingh’s mother requested protective supervision hours because Norasingh was having seizures five times a day. In support of this request, Norasingh’s neurologist (Dr. Klingman) submitted a November 2004 letter confirming that Norasingh suffers from “intractable seizures both non-epileptic and epileptic” and that in-home patient services would therefore be beneficial “for safety purposes.” After hearing, an administrative law judge concluded that Norasingh should have been assessed for protective supervision and ordered an evaluation, with any benefits awarded retroactive to the date of application.
In February 2005, after further consideration of Norasingh’s case, Contra Costa County Employment and Human Services (the County) determined that Norasingh was eligible for protective supervision, largely on the basis of the opinion of Dr. Vivian Igra, one of Norasingh’s treating physicians. Specifically, Dr. Igra stated that Norasingh had a “current and past history of wandering (if not supervised)” as reported by both her mother and her school. According to Dr. Igra, Norasingh “wanders because she has poor judgment where to go or not to go.” Further, Dr. Igra opined that “this poor judgment is directly cause[d] by her cognitive deficit from her congenital malformation in her brain.” Finally, Dr. Igra reported that Norasingh had “many” seizures (both pseudoseizures and physical seizures) and that she was currently in therapy to “treat the cause of why she has the pseudoseizures.” ...