Tri-Counties Association etc. v. Ventura County Public Guardian

T
Filed 5/5/21

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


 TRI-COUNTIES                           2d Civ. No. B300557
 ASSOCIATION FOR                      (Super. Ct. No. 56-2018-
 THE DEVELOPMENTALLY                  00511345-CU-WM-VTA)
 DISABLED, INC.,                         (Ventura County)

      Plaintiff and Respondent,

 v.

 VENTURA COUNTY PUBLIC
 GUARDIAN,
 as Conservator, etc.,

      Defendant and Appellant;

 A.V.,
    Real Party in Interest and
 Appellant.


     A.V. came to the attention of Respondent Tri-Counties
Regional Center1 in 2002 when it evaluated him at age 7 for

       We refer to respondent Tri-Counties Association for the
        1

Developmentally Disabled, Inc., dba Tri-Counties Regional
Center as “Regional Center” throughout this opinion.
autism, one of five qualifying conditions for services under the
Lanterman Developmental Disabilities Services Act. (Welf. &
Inst. Code, § 4500 et seq.; the “Act”).2 Its intake evaluators
observed symptoms of Asperger’s Syndrome but did not consider
his condition severe enough to qualify for services.
       A.V.’s next contact with the Regional Center came at age 19
after he experienced a series of psychiatric emergencies. The
agency noted symptoms of autism spectrum disorder (ASD), a
condition which includes those individuals formerly diagnosed
with Asperger’s. However, its evaluators attributed A.V.’s
intensifying mental health problems to a non-qualifying
condition, schizophrenia, that manifested after he reached the
Act’s eligibility cut-off of age 18. They again denied services.
       A.V. appealed to the Department of Developmental
Services (DDS). An administrative law judge (ALJ) specially
trained in “the law and regulations governing services to
developmentally disabled individuals” overturned the denial after
a lengthy proceeding conducted under the Act’s fair hearing
procedures. (§ 4712, subd. (b).) The ALJ found A.V. met the
statutory criteria for developmental disability: he had a
qualifying condition of autism, i.e., ASD; his ASD was
substantially disabling; and the condition originated before age
18. (§ 4512, subd. (a).) The ALJ rejected the Regional Center’s
argument that a qualifying condition must not only originate but
must also become “substantially disabling” before age 18.
       The superior court reversed the fair hearing decision after
the Regional Center petitioned for a writ of administrative

      2Unlabeled statutory references in this opinion are to the
Welfare and Institutions Code.




                                2
mandamus. The court agreed with the ALJ’s decision to the
extent it found a claimant’s qualifying condition need not become
substantially disabling before age 18. There it parted ways. The
court found the ALJ erred by weighing the parties’ evidence “on
an even playing field” rather than deferring to the Regional
Center’s opinions about A.V.’s eligibility for services under the
Act. It entered judgment against A.V. and his conservator, who
now appeal.
       We conclude the superior court erred when it deferred to
the Regional Center’s eligibility determinations. A fair hearing
under the Act is just that – an even playing field on which the
participants present their evidence to an impartial hearing
officer. The superior court owed deference not to the Regional
Center’s evaluators but to the administrative process created to
fairly resolve disputes over eligibility for services.
       We reverse the judgment and direct the superior court to
review the petition under the appropriate standard on remand.3
                    FACTUAL BACKGROUND
       A.V. grew up in Simi Valley, California. Significant
behavioral problems arose early in his life. Elementary school
teachers observed him vacillate between near-catatonia and
intractable mischief. Tests administered by Simi Valley Unified
School District (SVUSD) in 2001, at age 7, supported a diagnosis
of Asperger’s Syndrome and revealed “significant deficits in his


     3  Neither appellant nor respondent appeal the superior
court’s finding that a claimant’s qualifying condition need not
become substantially disabling before age 18 to constitute a
developmental disability under section 4512, subdivision (a). As
such, our opinion does not consider this question of statutory
interpretation.


                                3
verbal and nonverbal communication and social interaction that
adversely affect his educational performance.” This behavior
prompted A.V.’s parents to apply for developmental services
through the Regional Center. Regional Center evaluators
likewise observed symptoms of Asperger’s Syndrome but
determined the minor did not have substantially disabling
autism or another condition that would qualify him for services
under the Act. Nevertheless, SVUSD found A.V. eligible for
special education under the category of “Emotional Disturbance,”
and in later grades, under the category of “Autism.” It developed
an Individualized Education Plan (IEP) and placed A.V. in a
specialized public school setting from the first grade onward.
      A.V.’s most disruptive behaviors subsided by high school.
His teachers described him as a polite student who enjoyed
discussing science and history in class. He could read and write
at grade level, but his slow processing speed and distractibility
prevented him from keeping up in general education courses. He
graduated in 2013 despite these challenges and began a program
at Moorpark College for students with disabilities.
      A.V.’s mental health deteriorated soon after he left high
school. Police found him incoherent and hallucinating in a
discount store bathroom in June of 2014. He complained to
emergency room staff about hearing voices and feeling “numb” in
his brain. Physicians transferred him to Las Encinas Mental
Health Hospital in Pasadena on a section 5150 hold.4 He


      4 Welfare and Institutions Code section 5150, subdivision
(a) permits peace officers and designated mental health
professionals to take persons considered a danger to self or others
into custody “for a period of up to 72 hours for assessment,
evaluation, and crisis intervention.”


                                 4
received a week of inpatient treatment but returned to the
emergency room four days later when he again heard voices. A
second inpatient admission followed, this time at Del Amo
Hospital in Torrance.
       A.V.’s psychiatric condition eroded further when his 13-
year-old sister died in an apparent suicide in August of 2014.
Now 19, he began leaving his home more frequently and
wandering around Simi Valley half-dressed or naked. He twice
ventured on foot to his former high school. Bystanders would
often find him lying unresponsive on the ground following these
episodes. Hillmont Psychiatric Center (Hillmont), the acute
psychiatric unit of Ventura County Medical Center, assessed him
42 times between August of 2014 and March of 2016. Twenty-
two of these visits required inpatient admission. A.V. also
received several weeks of inpatient care at Henry Mayo Newhall
Memorial Hospital in Valencia and UCLA during this period.
The superior court appointed his mother, and later appellant
Ventura County Public Guardian (Public Guardian), as his
conservator.5
       Hillmont’s staff observed A.V. display repetitive, autistic-
type behaviors once his episodes of stress-induced psychosis
subsided.6 They concluded A.V. would greatly benefit from the

      5In the Matter of A.V. (Super. Ct. Ventura County, 2015,
No. 56-2015-00468470-PR-CP-OXN).

      6This included behaviors such as “stimming” or self-
stimulating by hand flapping; patterned pacing for hours at a
time; acting out with staff to invoke placement in restraints;
applying excessive hand sanitizer; and fixating on rigid routines
and diet during his often-lengthy admissions.




                                 5
type of intensive behavioral therapy provided through the
Regional Center. Hillmont psychiatrist Dustin Sanchez, M.D.
contacted Tri-Counties’ Director of Clinical Services, Steven
Graff, Ph.D., and recommended they collaborate to provide A.V. a
combination of psychiatric treatments and behavioral therapies.7
Several in-person assessments by Tri-Counties evaluators
followed. They observed symptoms of ASD8 but attributed his
present disability to an adult-onset psychiatric illness induced by
his sister’s death. They recommended Tri-Counties deny services
because A.V. did not have a substantially disabling form of
autism or any other eligible diagnosis before he turned 18 – the


      7 Solely psychiatric disorders such as schizophrenia and
major depressive order do not constitute developmental
disabilities. (Cal. Code Regs., tit. 17, § 54000, subd. (c)(1).)
However, the Act directs Regional Centers and county medical
health agencies to cooperate when necessary to improve the
“quality of mental health outcomes” of dually diagnosed
individuals requiring both developmental and mental health
services. (§ 4696.1, subd. (a).)

      8 The concept of autism as a spectrum of conditions evolved
significantly during the decade-plus between A.V.’s first and
second evaluations. Mental health professionals largely
discarded the discrete sub-diagnoses previously grouped within
autism, such as Asperger’s and Rett Syndromes, in favor of
“umbrella” diagnoses of ASD specified as mild (Level 1), moderate
(Level 2), or severe (Level 3). (See, e.g., Barry, Gray Matters:
Autism, Impairment, and the End of Binaries (2012) 49 San
Diego L. Rev. 161, 214 [commenting on Asperger’s impending
“disappear[ance] from the lexicon of the [American Psychological
Association]” upon the transition from DSM-IV to DSM-V in
2013].)




                                 6
age cutoff for those seeking to establish eligibility for Regional
Center services.
                      PROCEDURAL HISTORY
       Tri-Counties served a Notice of Proposed Action to deny
A.V.’s eligibility in May of 2017. The Public Guardian appealed
the decision by requesting a fair hearing under the Act. Matthew
W. Goldsby, an ALJ with the Office of Administrative Hearings
(OAH), conducted the hearing over six days.9 The parties
introduced testimony from two psychiatrists, three psychologists,
a pediatrician, a pharmacologist, two licensed social workers, a
behavioral therapist, and a special education consultant. They
submitted 166 exhibits relating to A.V.’s behavioral health,
mental health, and education over the past 15 years. The
administrative record exceeded 3000 pages.
       The ALJ issued a comprehensive and detailed 25-page
decision at the close of evidence. He concluded A.V. proved his
diagnosis of autism spectrum disorder as defined by the
Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition (DSM-V). He further found that A.V.’s disorder
originated in childhood and became substantially disabling at age
19. The ALJ rejected the Regional Center’s argument that a
qualifying condition must both originate and become
substantially disabling before age 18. He found A.V.’s acute
psychiatric problems did not disqualify him from receiving
developmental services from the Regional Center:
       “‘Substantial evidence supports a finding that claimant has
a diagnosis of autism spectrum disorder, a qualifying condition
for regional center services. . . . Although claimant may have

      OAH is an independent office housed within California
      9

Department of General Services.


                                7
suffered “a psychotic break” and may currently suffer from an
unspecified mental disorder, the regulations do not deny services
to an individual with a psychiatric disorder, so long as the
individual can also establish a qualifying condition under the
Lanterman Act.’” (Underlining omitted.)
       Tri-Counties sought review by petitioning for a writ of
administrative mandate. (Code Civ. Proc., § 1094.5.) The
superior court rejected the Regional Center’s argument that a
claimant’s condition must become substantially disabling before
age 18 to be eligible for services. It nevertheless reversed the
ALJ’s decision because his analysis “accorded no significant
weight or deference to the [Regional Center] professionals who
evaluated [A.V.’s] entire clinical history.” The superior court
found the testimony of Regional Center professionals “to strongly
predominate” on the issue of A.V.’s diagnosis and criticized the
ALJ for “substitut[ing] his own judgment for that of the [Regional
Center] professionals” by applying DSM-V’s autism criteria. It
granted the petition and entered judgment in favor of the
Regional Center. The Public Guardian appealed the judgment on
A.V.’s behalf.
                            DISCUSSION
                         Standard of Review
       We review the superior court’s judgment for substantial
evidence. (Harbor Regional Center v. Office of Administrative
Hearings (2012) 

210 Cal. App. 4th 293

, 304, citing Mason v. Office
of Admin. Hearings (2001) 89 Cal.App.4th. 1119, 1130 (Mason).)
“[W]e exercise independent review to the extent we determine
legal issues such as the interpretation of statutes and
administrative regulations.” (Harbor Regional Center, at p.304




                                8
citing Silver v. Los Angeles County Metropolitan Transportation
Authority (2000) 

79 Cal. App. 4th 338

, 348.)
        Establishing Eligibility for Regional Center Services
                      Under the Lanterman Act
       The Act seeks to integrate developmentally disabled
Californians into mainstream life and to ensure they are
accorded equal access to programs receiving state funds. (§§
4501, 4502; see Association for Retarded Citizens v. Department
of Developmental Services (1985) 

38 Cal. 3d 384

, 389-391.) DDS is
the agency charged with implementing the Act. (§§ 4434, 4629,
4635; Ronald F. v. State Dept. of Developmental Services (2017)

8 Cal. App. 5th 84

, 94 (Ronald F.).) In turn, DDS contracts with
21 private non-profit corporations called Regional Centers to help
disabled individuals secure “those services and supports which
maximize opportunities and choices for living, working, learning,
and recreating in the community.” (§ 4640.7, subd. (a).) Tri-
Counties is the Regional Center serving the counties of Ventura,
Santa Barbara, and San Luis Obispo.
       One must have a “developmental disability” to qualify for
Regional Center services. The Act defines the term as a condition
“that originates before an individual attains 18 years of age,
continues, or can be expected to continue, indefinitely, and
constitutes a substantial disability for that individual.” (§ 4512,
subd. (a); see Cal. Code Regs., tit. 17, § 54000.) Autism is one of
five conditions that may establish an individual’s eligibility.10



      10 The four other conditions include intellectual disability,
cerebral palsy, epilepsy, and what are referred to as “fifth
category” conditions, i.e., “disabling conditions found to be closely
related to intellectual disability or to require treatment similar to


                                  9
(§ 4512.) Neither the Act nor DDS regulations define the term
“autism.” Instead, the Regional Center’s intake coordinators
assess eligibility using diagnostic criteria developed by the
organization’s mental health professionals. (§ 4642, subd.
(a)(1).)11 The Regional Center then notifies claimants whether
they are eligible for services under one or more qualifying
categories.
       Successful claimants obtain an Individual Program Plan
(IPP). The IPP may include services such as speech therapy and
social skills training for children and employment programs and
transportation for adults. Unsuccessful claimants may appeal
the Regional Center’s decision by requesting a “fair hearing.”
(§ 4706, subd. (a).) The Act requires DDS to promulgate hearing
procedures and to provide independent hearing officers to decide
the appeals. (§§ 4705, subd. (a)(1), 4710.5, 4712, subd. (b); Cal.
Code Regs., tit. 17, § 50900 et seq.) DDS contracts with the OAH
to provide these hearing officers. The ALJs assigned to DDS
matters must complete training in “the [Act] and regulations
adopted thereunder, relevant case law, information about

that required for individuals with an intellectual disability.”
(§ 4512, subd. (a).)

      11 We grant appellants’ December 15, 2020 unopposed
request for judicial notice of four DDS publications: (1) the Client
Development Evaluation Report Field Manual; (2) Autistic
Spectrum Disorders: Changes in The California Caseload An
Update: 1999-2003; (3) Quarterly Consumer Characteristics
Report Index for the End of September 2020; and (4) the Glossary
of Terms. We previously granted the unopposed request for
judicial notice of amicus curiae Association of Regional Center
Agencies, Incorporated, in our order dated January 21, 2021.




                                 10
services and supports available to persons with developmental
disabilities, including innovative services and supports, the
standard agreement contract between the department and
regional centers and regional center purchase-of-service policies,
and information and training on protecting the rights of
consumers at administrative hearings . . . .” (§ 4712, subd. (b).)
       DDS Hearing Officers Need Not Defer to the Eligibility
            Determinations of Regional Center Evaluators
       The superior court found the ALJ abused his discretion by
failing “to give substantial weight and deference to [the Regional
Center’s] evaluation, assessment, and determination that [A.V.]
does not suffer from autism within the meaning of section 4512,
subdivision (a).” It concluded ALJ reached the wrong result
because it weighed the evidence of both sides “on an even playing
field” instead of giving Regional Center professionals “the weight
and deference they are due.”
       The ALJ owed them no such deference. The only deference
the Regional Center enjoyed at the hearing was A.V.’s burden to
prove his eligibility by a preponderance of the evidence. (§ 4712,
subd. (j); see Lindsay v. County of San Diego Retirement Board
(1964) 

231 Cal. App. 2d 156

, 161-162, citing Albonico v. Madera
Irr. Dist. (1960) 

53 Cal. 2d 735

[“A party having the burden of
proof before an administrative agency must sustain that burden,
and it is not necessary for the agency to show the negative of the
issue when the positive is not proved”].) One’s affiliation with a
Regional Center does not bolster their credibility. The cases cited
by the superior court do not place an evidentiary halo on any
witness. (Ronald 

F., supra

, 

8 Cal. App. 5th 84

; Samantha C. v.
State Dept. of Developmental Services (2010) 

185 Cal. App. 4th
1462

; 

Mason, supra

, 

89 Cal. App. 4th 1119

.)




                                11
       In reversing the ALJ’s decision, the superior court wrote
“[i]t was not for the hearing officer to substitute his own
judgment for that of the [Regional Center] professionals . . .
[l]ikewise, it is not for this Court to substitute its judgment for
that of the [Regional Center] professionals in determining
whether [A.V.] does or does not suffer from autism.” This
conflates the roles of DDS fair hearing officers and superior court
judges. The initial eligibility determinations of California’s 21
service agencies remain subject to review by DDS consistent with
its statutory directive to “oversee the [Regional Center]’s
assessment of eligibility and provision of services.” (

Mason,
supra

, 89 Cal.App.4th at p. 1127.) Fair hearing officers are
DDS’s internal arbiters of disputed eligibility claims, not judicial
interlopers. (§ 4712.5, subd. (a) [ALJ’s written rulings constitute
DDS’s “final administrative decision”], § 4712.7 [“the director
may delegate his or her authority to adopt final decisions under
this chapter to hearing officers described in subdivision (b) of
Section 4712”].) The line of cases cited by the superior court
espouses deference to the administrative system created to
implement the Act, not to Regional Center professionals
specifically. (Mason, at p. 1129.)
       The deference owed to a Regional Center psychologist is not
distinct from, or superior to, that owed to an ALJ tasked with
making DDS’s final eligibility determination. Each serves an
important function delegated to them under the Act. The fair
hearing process serves as a check on Regional Centers’
considerable discretion to both develop and implement eligibility
criteria under the Act. The ALJ did not abuse his discretion by
weighing the evidence on an even playing field. Doing so
confirms he performed his duties impartially.




                                12
  Courts Must Accord a Strong Presumption of Correctness to the
        Eligibility Determinations of DDS Hearing Officers
      The Administrative Adjudication Bill of Rights directs
courts to “give great weight to the determination” of a DDS-
appointed ALJ “to the extent the determination identifies the
observed demeanor, manner, or attitude of the witness that
supports it.” (Govt. Code, § 11425.50, subd. (b).) This “strong
presumption of correctness” applies even where, as here, the
superior court exercises its independent judgment to determine
whether the weight of the evidence supports the agency’s
findings. (Fukuda v. City of Angels (1999) 

20 Cal. 4th 805

, 817.)
      The superior court recites this presumption twice in its
statement of decision. These references, however, conflict with
the erroneous standard of review woven into the decision’s fabric.
This conflict is evident where the superior court discredits the
ALJ’s finding that A.V.’s treating psychiatrist was “more
believable” on the stand than Regional Center professionals “who
evaluated A.V.’s entire clinical history.” Indeed, making such
credibility determinations was precisely what the Act required
the hearing officer to do. The superior court’s sweeping
conclusion that the evidence “strongly predominates” against
A.V.’s autism diagnosis demonstrates this error colored the
court’s review of a lengthy and nuanced administrative record.
“[W]e cannot properly review the trial court’s findings and
decision for substantial evidence” when those findings are
“infected by fundamental error.” (Fukuda v. City of 

Angels,
supra

, 20 Cal.4th at p. 824.) We will instead reverse the
judgment and instruct the superior court to apply the correct
standard when reviewing the ALJ’s decision and the
administrative record on remand.




                                13
         The ALJ Correctly Relied on DSM-V’s Diagnostic Criteria
 for Autism Spectrum Disorder to Determine A.V.’s Eligibility for
                      Regional Center Services
       The superior court likewise erred when it criticized the ALJ
for “engraft[ing]” DSM-V’s autism criteria onto the Act instead of
deferring to the criteria established by Regional Center
professionals. The decision to integrate DSM-V criteria into the
eligibility analysis was well within the ALJ’s discretion. The Act
did not require him to view the Regional Center’s internally
promulgated criteria as the controlling definition of an undefined
statutory term. Indeed, we question how DDS could provide fair
and impartial hearings if it did not permit hearing officers to
scrutinize the diagnostic standards of front-line evaluators.
       The record shows the ALJ structured his analysis around
DSM-V because the parties agreed it was the appropriate
standard for assessing A.V.’s eligibility. The Regional Center
took the position A.V. did not qualify for services because his
purported qualifying diagnoses, even if established under DSM-
V, did not become “substantially disabling” until he reached
adulthood. The mandamus petition and primary supporting brief
took the same tack and fared no better on mandamus. Assuming
arguendo the ALJ errantly incorporated DSM-V into his decision,
the Regional Center invited the error. (See Santa Clara Waste
Water Co. v. Allied World National Assurance Co. (2017) 

18
Cal. App. 5th 881

, 888, citing Jentick v. Pacific Gas & Electric Co.
(1941) 

18 Cal. 2d 117

, 121 [“Under the invited error doctrine, a
party cannot challenge a court’s finding made at its insistence”].)




                                14
                         CONCLUSION
      The judgment is reversed. We direct the superior court to
review the petition on remand using the standard set forth in this
opinion. Appellants shall recover their costs on appeal.
      CERTIFIED FOR PUBLICATION.




                                    PERREN, J.


We concur:



      GILBERT, P. J.



      YEGAN, J.




                               15
                   Matthew P. Guasco, Judge
               Superior Court County of Ventura
                ______________________________

      Leroy Smith, County Counsel, Mitchell B. Davis, Assistant
County Counsel; Disability Rights California, William Leiner,
Autumn Elliot, Nishanthi Kurukulasuriya and Melinda Bird for
Defendant and Appellant and for Real Party in Interest and
Appellant.
      Benton, Orr, Duval & Buckingham, Bruce Alan Finck and
Donald R. Wood for Plaintiff and Respondent.
      Enright & Ocheltree, Aaron Abramowitz and Noelle V.
Bensussen for Association of Regional Center Agencies,
Incorporated, as Amicus Curiae.




                              16

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