STATE OF NORTH CAROLINA IN THE OFFICE OF

COUNTY OF GUILFORD ADMINISTRATIVE HEARINGS

03 DHR 0575

Becky Wood, Guardian Representative The Arc/NCLifeguardianship on behalf of Mary Short (Ward)
Petitioner
v.
Richard Visingardi, Director
Div. of MH, DD, SAS
Respondent. / )
)
)
)
)
)
)
)
) / DECISION

This matter coming on to be heard and being heard before the undersigned administrative law judge on September 22, 2003, and the parties having been represented by counsel, Deborah Greenblatt, Carolina Legal Assistance for the Petitioner and Diane Martin Pomper, Assistant Attorney General for the Respondent; and the Court having heard the testimony and received the evidence of the parties, hereby makes the following FINDINGS OF FACT AND CONCLUSIONS OF LAW.

I. Jurisdiction

  1. This matter is properly before the court pursuant to N.C.G.S. § 150B-23(a), petitioner having alleged that respondent has substantially prejudiced petitioner’s rights, and petitioner having exhausted all administrative remedies available to her as required by N.C.G.S. §150B-43.

II. Parties

  1. Mary Short has been declared incompetent and the Arc of North Carolina is her legally appointed guardian. Becky Wood is employed by the Arc as a guardian representative, and she has served as Mary Short’s guardian since 1994. She visits Mary Short at least once per month and has done so since 1994. In her role as guardian, Ms. Wood is responsible to give informed consent for Mary’s treatment and medical care as well as her residential placement. Accordingly, she keeps the records from Mary’s service providers and her doctors.
  1. Mary Short was born in 1927 and is a native of Pitt County, North Carolina. From her birth until the age of 22, she lived at home. In 1949, when she began exhibiting bizarre behavior, she was admitted to Cherry Hospital, a state psychiatric institution operated by Respondent. She has diagnoses of moderate mental retardation and chronic undifferentiated schizophrenia. Ms. Short resided at Cherry Hospital for 42 years until she was discharged as a member of the Thomas S. Class at the age of 64. Since 1991 Ms. Short has resided at Rouse’s Group Home in Rockingham County. At the time of the hearing Ms. Short was 75 years old. One of Mary’s needs is for behavioral support.
  1. Dr. Richard Visingardi is Director of the Division of Mental Health, Developmental Disabilities and Substance Abuse Services within the North Carolina Department of Health and Human Services. He is the party responsible for the agency action that is the subject of this dispute.

III. Findings of Fact

  1. Mary Short moved into Rouse’s Group Home on May 10, 1991 upon being discharged from Cherry Hospital. Mary’s placement at Rouse’s was part of her treatment plan which was initiated by her treatment team in Pitt County and then renewed annually thereafter by her team. She has remained there ever since. The Pitt Area Program has continuously provided case management services for Ms. Short and been part of her treatment team since her initial placement there.
  1. Rouse’s is an ICF/MR group home (Intermediate Care Facility for the Mentally Retarded) located in Stoneville, Rockingham County, North Carolina.
  1. When Mary Short first came to Rouse’s, it took a period of time for her to develop trust and adjust to living outside of an institution. She would gulp her food as soon as it was served because she was afraid someone would take it from her. She would hide her clothes and belongings under her bed. During her first years there, Mary made progress and was able to participate in community activities. She did however present a challenge because of unpredictable behaviors.
  1. In 1997, staff at Rouse’s became concerned that Mary’s increasingly aggressive behavior was endangering herself and other residents and staff. A social work evaluation recommended that Mary needed one-on-one staffing during her day and evening hours due to “Random aggressive behavior” and “Random acts of physical violence towards other in her environment” among other reasons. There was testimony that Mary had once broken the nose of a nurse and that her behavior was generating complaints from guardians of other residents because she was hitting, pushing and scratching them. These behaviors appeared to be random and are thought to result from Mary’s mental illness. There was concern that Mary could not stay at Rouse’s and would have to be returned to a psychiatric hospital.
  1. Based on Mary Short’s individual needs, and with input from Dr. Chandler, her treatment team recommended in 1997 that a one-on-one assistant be added to Mary’s treatment plan. The treatment team who participated in this decision consisted of Mary’s case manger from Pitt County, a qualified mental retardation professional from Rouse’s Group Home, Mary’s guardian Becky Wood, Mary’s psychologist, and Mary’s nurse. Mary Short also participates as a member of her team.
  1. The Pitt County Area program approved funding for the one-on-one aide for forty hours per week for Mary pursuant to the treatment team decision, and Rouse’s hired Tena Dillard to work with Mary as her one-on-one aide. All of Mary Short’s treatment plans approved by her treatment team from 1997 through 2002 included the one-on-one aide based on Mary’s needs. At no time throughout this period was there any mention of state or federal policies or rules that would prohibit state funding of this position.
  1. There is no dispute that Tena Dillard has made a great difference in Mary’s life and has an exceptional knack for working with her. She developed a strong rapport with Mary Short and was able to anticipate behavior problems and intervene and redirect some of those behaviors.
  1. Ms. Dillard testified that her secret for working with Mary Short was getting to know Mary really well, knowing her body gestures and even her grunts, and then respecting her as a human being and treating her “as I want to be treated.” In addition to the forty hours per week that Ms. Dillard was paid to work with Mary, she made herself available on weekends or evenings if Mary needed her.
  1. There is a consensus among Mary’s treatment team that the addition of Tena Dillard to Mary’s treatment plan has enabled Mary Short to remain in the community at Rouse’s, to participate in her habilitation plan there, and to participate in other community activities. The respondent does not dispute this. Her team was concerned that without Ms. Dillard’s assistance, Mary could have ended up back at the mental institution, and that she remains at risk of institutionalization.
  1. Rose Stirewalt is the Pitt County service coordinator for clients with mental illness and mental retardation. She supervises case managers and is in charge of funding and budgets for client services. She is the supervisor for Mary Short’s case manager. She testified that she had been aware of the decision of Mary Short’s treatment team to provide a one-on-one aide from the time she assumed her position in 1998 and that she was in consensus with that team decision. She had never heard of any concern that this plan ran afoul of any rules or regulations.
  1. On March 7, 2002, Rose Stirewalt, in her capacity as mental retardation/mental illness coordinator at Pitt Area Mental Health, received a memo from Rose Burnette, service manager of the Eastern Regional office of the respondent, formally terminating state approval for personal assistance and support for Mary Short. The memo stated, “It is against policy to provide state-funded service/supports to individual residing in an ICF/MR facility.” The result of this memo was that the state would terminate funding for Mary’s one-on-one aide.
  1. Rose Stirewalt testified that neither she, Mary Short’s case manager who was then Deborah Gorham, nor Mary’s treatment team were given any advance notice of the decision to terminate Mary’s aide nor were they given an opportunity for input into this decision concerning Mary’s needs.
  1. Rose Burnette who authored the memo terminating the one-on-one service to Mary was a regional service manager at the time. She had once been Mary Short’s case manager and was familiar with her needs. She testified that she was told that with regard to any individuals who resided in an ICF facility, “when their plans came up for renewal based on their date of birth at that point in time, we were not to approve … state funding anymore.” (Tr.110). Ms. Burnette testified that she had no choice in that decision and that the decision was not based on any decrease in Mary’s needs and not based on any person centered planning for Mary. She had never before heard of any conflict between state funding for Mary’s aide and any state or federal regulation.
  1. Other than the March 7, 2002 memo from Rose Burnette to Rose Stirewalt, no written policy or rule was produced in support of the decision of respondent to terminate funding for Mary Short’s aide.
  1. Dr. Mark Chandler, Mary Short’s psychiatrist, learned of the decision to terminate funding for Mary’s aide from Mary’s guardian. He wrote a note to Mary’s chart stating in pertinent part “Mary is a seriously psychotic patient who hallucinates regularly. She is quite paranoid despite medication and can often be combative, hitting out at staff or clients….It is my opinion that given the severity of Mary’s psychotic disorder, her care is much more complicated than the usual ICF-MR patient. A one-to-one aide is needed 8-10 hrs/day to prevent falls, aggression to others. An aide is also important to prevent psychiatric hospitalization, a clear goal in an elderly, developmentally disabled, psychotic person.”
  1. Mary Short’s treatment team was not convened or consulted in connection with the decision to terminate Mary’s one-on-one aide. No member of Mary Short’s team had any opportunity to express an opinion about Mary’s needs as related to the decision.
  1. Members of Mary’s team were concerned that she would not be able to remain at Rouse’s without the assistance of her aide Tena Dillard. After the decision was announced, team meetings were convened to look at alternative placements for Mary Short including a possible return to Cherry Hospital. Because of Mary’s overall success at Rouse’s with her aide and because of Mary’s strong desire to remain at Rouse’s, Mary’s guardian gave notice to appeal the decision.
  1. Mary’s guardian Becky Wood and the staff and residents at Rouse’s are the only “family” Mary has and she wants very much to remain there.
  1. Becky Wood, as guardian representative for Mary Short, duly appealed the decision to terminate Mary Short’s one-on-one assistant. One effect of the appeal was that the decision to terminate funding for Mary’s aide was stayed, and Tena Dillard remained in place from April 18, 2002 to March 25, 2003. During this time, Mary’s guardian and Rouse’s were able to do some planning to “fade” Mary’s dependence on Tena and to arrange for Tena to be otherwise employed at Rouse’s so that even if it was not her job to work with Mary, she would be available to her.
  1. On March 10, 2003, respondent upheld the decision to discontinue state-funded services for Mary Short while she lived at Rouse’s. On March 25, 2003, the contract for services was terminated.
  1. According to both witnesses for the respondent, the respondent has endorsed and promulgated to the public a commitment to serve clients of the Division of MH/DD/SAS according to the principle of “person- centered planning.” This commitment has been published in the Division State Plan, the State’s Olmstead Plan and in many other places and occasions.
  1. Person-centered planning looks at every aspect of the person’s needs and desires and what is most important in trying to deliver services with all of those ideas in mind. Mary Short’s 1998 treatment plan is an example of person-centered planning. Person- centered planning would include participation by Mary Short and her guardian. It would consider Mary’s desire to remain at Rouse’s and her need to keep Tena Dillard in her life.
  1. Respondent’s witnesses acknowledged that the decision to terminate funding for Mary Short’s aide was not based on person-centered planning and that no discussion of alternative funding sources took place.

Statutes, Regulations and Policies

  1. N.C.G.S. Chapter 122C is the Mental Health, developmental Disabilities, and Substance Abuse Act of 1985.
  1. N.C.G.S. § 122C-51 is the Declaration of policy on clients’ rights. It provides in pertinent part that “Each client has the right to an individualized written treatment or habilitation plan setting forth a program to maximize the development or restoration of his capabilities.”
  1. N.C.G.S. § 122C-57(a) provides in pertinent part, “Each client who is admitted to and is receiving services from a facility has the right to receive age-appropriate treatment for mental health, mental retardation and substance abuse illness or disability. Each client …shall have an individual written treatment or habilitation plan implemented by the facility. The client and the client’s legally responsible person shall be informed in advance of the potential risks and alleged benefits of the treatment choices. (Emphasis added).
  1. Session Laws S.L. 2001-424 provides that the Respondent shall “implement utilization review of services provided.” (S.L. 2001-424, §21.66(a)(3).
  1. Session Laws S.L. 2001-424 also provides that the Respondent shall:

(I)  implement the following guiding principles for the provision of services: (a) Services delivery system must be outcome oriented and evaluation based….(e) Families and consumers should be involved in decision making throughout the treatment planning and delivery; and