Department of Health & Mental Hygiene v. Dillman

DAVIS, Judge. On October 24, 1995, an administrative law judge (ALJ) determined that appellant William Dillman met the statutory-criteria for admission to a State residential center and certified his admission. Dillman appealed to the Circuit Court for Baltimore City, and on October 31, 1995, the court reversed the decision of the ALJ. The Department of Health and Mental Hygiene (DHMH or Department) appeals from the lower court’s decision and presents two questions for our review, which are restated below: I. Is private residential placement “available,” within the meaning of Md.Code (1994 Repl.Vol., 1996 Supp.), § 7-503(e)(l)(iii) of the Health-Gen.

Art. (H.G.), when a private contractor proposes to create such a placement, ³⁰ but the State has exhausted funds allocated for such a placement and has not agreed to fund the proposal?

II

Did the trial court violate the standard of review for an administrative decision under Md.Code (1995 Repl.Vol„ 1996 Supp.), § 10-222 of the State Gov’t Art. (S.G.) by not accepting the ALJ’s finding that a proposed private residential placement was not “less restrictive” than placement at a State residential center? FACTS William Dillman is fifty-three years old and diagnosed with moderate mental retardation and paranoid personality disorder with anti-social traits. Dillman was admitted to Rosewood Center (Rosewood), a State residential center for individuals with developmental disabilities, on March 9, 1978. Dillman was admitted to Rosewood from the Prince George’s County Detention Center where he was incarcerated for a criminal offense which occurred in June 1977.

Subsequently, the criminal charges were dropped, and in May 1979, Dillman was placed in the community under the supervision of the Baltimore Association for Retarded Citizens (BARC). On April 10, 1980, Dillman was returned to Rosewood by Order of the Circuit Court for Baltimore City because of an alleged criminal offense which occurred in March 1980. On May 9, 1992, Dillman was placed in another community residential placement program under the direction of Jesse Grim. On September 17, 1992, Dillman was arrested and charged with second and fourth degree sex offenses.

As a result, Dillman was returned to Rosewood. The District Court of Maryland for Baltimore City found Dillman incompetent to stand trial and committed him to Rosewood pursuant to H.G. § 12-105(b). 1 The criminal charges were dismissed on July 25,1994. ³¹ On October 24, 1994, a hearing was held, pursuant to H.G. § 7-503(a), to determine whether Dillman met the criteria for continued confinement at Rosewood. The ALJ made several findings of fact including that the Rosewood treatment team consistently stated that Dillman requires residential services to maintain and acquire life skills. The findings also stated that Dillman “is independent in areas of domestic tasks and self care, is self aware and expresses appropriate emotional responses.” Dillman, accompanied by a Rosewood staff member, is employed by BARG three to five days a week planting bulbs and shrubs and cutting grass.

The ALJ found that Dillman requires assistance with budgeting and does not fully understand the value of money. The treatment team at Rosewood noted that Dillman “functions best in a highly structured environment where routines are clearly outlined.” The ALJ also found that the intervention team’s annual report, among other recommendations, stated that Dillman should receive twenty-four-hour close supervision, line-of-sight supervision when in the community, and a staff trained in the management of disruptive behavior. In September 1993, interdisciplinary and forensic teams at Rosewood recommended that Dillman be released to Other Options Inc., a community based residential placement program. The team noted that “[w]hen Mr, Dillman has a structured program and appropriate supervision, he presents little to no problems____Other Options Inc. is prepared to provide services to Dillman if funding is approved.

In addition, Joseph Matthew from The Center for Social Change, another residential community based program, met with Dill-man and stated that The Center for Social Change is prepared to place Dillman in community placement with services recommended by the team if funding is provided. ³² In 1994, the Developmental Disabilities Administration (DDA) 2 was allocated funds for the institutional downsizing of Rosewood by providing individuals with needed services in community placements. The funding allowed for community placement of ten individuals for 1994. Dillman was not included among those ten individuals and there are no funds from that budget allocation for additional placements. The DDA Central Maryland Regional Office was also allocated approximately two million dollars for placement of clients in the community to avoid admission into an institution.

These funds, however, are only for persons brought to Rosewood as a temporary option while DDA arranges community placement. DDA does not consider Dillman a community client. There are funds currently available in the budget for these emergency placements, but, as the ALJ concluded, it is within the discretion of the DDA whether to use these funds for community placement. On March 14,1995, the ALJ certified Dillman’s admission to Rosewood.

The ALJ concluded that Dillman was mentally retarded within the meaning of H.G. § 7-503(e)(l)(i) and needed residential care and treatment within the meaning of H.G. § 7-503(e)(l)(ii). The ALJ also concluded that there was no less restrictive setting in which Dillman’s needs could be met that was available pursuant to H.G. § 7-503(e)(l)(iii) because there were no available funds for Dillman’s private placement. The ALJ stated “the fact that Other Options and the Center for Social Change are willing to accept the Appellant, does not make the placements available.” In addition, the ALJ concluded that Dillman would receive the same services in the community programs that he would receive at Rosewood, and thus community placement was not “less restrictive.” Dillman appealed from the ALJ’s order to the Circuit Court for Baltimore City. The court found that the DDA did not show by clear and convincing evidence that there was not a less restrictive ³³ setting in which the needed services could be provided that was available pursuant to H.G. §§ 7-503(e)(l)(iii).

The court held that “a lack of funding is an inappropriate measure of availability for community placement.” The court stated the legislative intent of H.G. §§ 7-502 and 7-503 is “not to deprive individuals of their constitutional right to liberty by placing individuals with developmental disabilities in a restrictive setting.” With regard to a “less restrictive placement,” the court found that DDA relied solely on its financial ability and did not “adequately argue that there was no less restrictive setting in which to place appellant.” On October 31, 1995, the court, finding error of law and that DDA had not shown by clear and convincing evidence that no less restrictive setting was available, reversed the decision of the ALJ. DISCUSSION According to H.G. § 7-503(e)(l)(iii), in order to certify Dillman for admission to a State residential center, DHMH must show by clear and convincing evidence that there is “no less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time after the hearing.” 3 Thus, in order to not certify an individual to a State residential center, the ALJ must find that both an individual’s needs can be met in a less restrictive setting, and that a less restrictive setting is available. We address each criteria below. I "‘Judicial review of agency fact[-]finding is narrow in scope and requires the exercise of a restrained and disciplined judicial judgment.” Liberty Nursing Ctr., Inc. v. Dep’t of ³⁴ Health & Mental Hygiene, 330 Md. 433, 442 , 624 A.2d 941 (1993).

When the agency’s findings are supported by substantial evidence, “in the form either of direct proof or permissible inference, in the record before the agency, an appellate court may not substitute its judgment, even on the question of the appropriate inference to be drawn from the evidence, for that of the agency.” Id. at 443 , 624 A.2d 941 . Whten, however, the decision of the AL J involves a question of law, ordinarily no deference is appropriate and the reviewing court may substitute its judgment for the agency’s decision. Id. In the case at bar, the first issue raised by appellant, the interpretation of “available” within the meaning of H.G. § 7-503(e)(l)(iii), is an issue of law which we review de novo.

The Department argues that a less restrictive placement is not “available” if the price of the placement is unknown and there are no funds allocated to pay for the placement. H.G. § 7-502(b) prohibits the Secretary of DHMH from admitting an individual to a State residential center if there is a less restrictive setting available in which the needed services can be provided. H.G. § 7-503 provides that, within twenty-one days after admission of an individual to a State residential center, an ALJ shall conduct a hearing using the criteria set out in H.G. § 7-5Q3(e)(l)(iii). H.G. § 7-503(e)(l) provides: Findings supporting admission.—(1) At the hearing, in order to certify the admission of the individual, it must be affirmatively shown by clear and convincing evidence that the conclusions leading to the decision to admit the individual are supported by the following findings: (i) The individual has mental retardation; (ii) The individual needs residential services for the individual’s adequate habilitation; and (in) There is no less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time after the hearing. ³⁵ H.G. § 7-503(e)(l).

Neither the statute nor the regulations define the term “available”; thus, to determine the legislature’s intended meaning we must ascertain the legislative purpose of the statute. Motor Vehicle Admin. v. Shrader, 324 Md. 454, 462 , 597 A.2d 939 (1991). To interpret the purpose of H.G. § 7-503(e)(l)(iii) we look to the plain language of this section and the intent of the Maryland General Assembly in promulgating H.G. § 7-503(e)(l) in the context of the overall statutory scheme of Title 7 of the Health-General Article. Motor Vehicle Admin., 324 Md. at 463 , 597 A.2d 939 (“[t]he legislative intent must be gleaned from the entire statute, rather than from only one part.”).

The legislative policy of Title 7 is set forth in H.G. § 7-102 which provides, in part: (1) To promote, protect, and preserve the human dignity, constitutional rights and liberties, social well-being, and general welfare of individuals with developmental disability in this State; (2) To encourage the full development of the ability and potential of each individual with developmental disability in this State, no matter how severe the individual’s disability; (3) To promote the economic security, standard of living, and meaningful employment of individuals with developmental disability; (4) To foster the integration of individuals with developmental disability into the ordinary life of the communities where these individuals live; (5) To support and provide resources to operate community services to sustain individuals with developmental disability in the community, rather than in institutions; (6) To require the administration to designate sufficient resources to foster and strengthen a permanent comprehensive system of community programming for individuals with developmental disability as an alternative to institutional care; ³⁶ (7) To recognize the right of those individuals with developmental disability who need residential services to live in surroundings as normal as possible and to provide adequate facilities for this purpose; (8) To provide appropriate social and protective services for those individuals with developmental disability who are unable to manage their own affairs with ordinary prudence. H.G. § 7-102. Title 7 must be construed in a manner consistent with this policy to encourage the integration of developmentally disabled individuals into community life and designate support and resources for community programs. H.G. § 7-103.

After examining the policy and statutory scheme of Title 7, we hold that the term “available” within H.G. § 7-503(e)(l)(iii) means practically and actually available. That reading necessarily includes a financial or budgetary component and is consistent with the plain language of H.G. § 7-503(e) and with the overall statutory scheme of Title 7. In this case it is undisputed that appellee has mental retardation and requires residential services for adequate habilitation. H.G. § 7-503(e) focuses on the admission of an individual to a State residential center and the criteria that must be established in order for an ALJ to certify an individual for admission.

The ALJ must decide (a) whether the services can be provided in a less restrictive setting and (b) whether that setting is available to appellee. We disagree with the trial court’s conclusion that determining whether a less restrictive setting is available does not include financial