California: Procedural win is moral victory for family
September 22, 2010 Update: The Supreme Court of California DENIED the Petition for Review, and DENIED requests for an order to depublish the appellate court decision of In re Michael K. Translation: The favorable appellate court decision (linked below) stands unaffected and remains published.
On June 22, 2010, a California appellate court found that Gail Bowen’s legal battles on behalf of her profoundly disabled son, Michael, should never have been. The Court overturned a lower court ruling on a January 2009 lawsuit filed the public defender to force Michael into a “community setting.” The court found the filing improper because just one month earlier (December 2008), an Administrative Law Judge (AJL) had held that Sonoma was the least restrictive environment. The lawsuit filed by the public defender amounted to a re-litigation of issues that had already been resolved.
The full decision can here.Gail Bowen, along with Michael’s father and co-conservator (James), will be the first to agree that their legal struggles, which began following a 2007 Interdisciplinary Team (IDT) meeting for Michael, were unnecessary and unjustified.
Because Agnews, which had been Michael’s home since 1986, was closing, Gail sought a transfer to Sonoma. All members of Michael’s IDT agreed except one: The San Andreas Regional Center (SARC), a state contracted agency charged with developing individual program plans for California citizens with developmental disabilities who are in need of services. SARC’s refusal blocked Michael’s admission to Sonoma, forcing his family to request a Fair Hearing before an administrative judge to appeal SARC’s decision.
In December 2008, Administrative Law Judge (ALJ) Karen Brandt found in favor of the family’s request that Michael be transferred to Sonoma, noting that “it was evident Michael’s family was motivated by their love and devotion to him . . . [and] given his very severe and significant developmental disabilities and medical issues, a developmental center is the least restrictive and best environment for him. The determination of what is the least restrictive environment must be based upon factors that are specific to Michael’s individual needs.”
The public defender challenged this decision in court in January 2009 – a filing the appellate court described as “ostensibly on behalf of Michael but effectively on behalf of SARC.” Still, the trial court sided with the public defender and against the family’s wishes, holding that Sonoma was not the least restrictive environment for Michael.
Gail Bowen appealed and won. Although the appellate court’s decision hinges on a technicality that restores the ALJ’s decision in support of Michael’s placement at Sonoma, it is not a hollow victory. In its decision, the appellate court also provides important guidance for other families seeking to protect developmental center placements. The due process requirements for an initial admission to any developmental center (called Hop hearings in California) are not meant to be replayed over and over again to justify continued admission or transfers to another developmental center.
“The due process concerns for retention in a developmental center are not the same due process concerns that are present when a developmentally disabled person is first involuntarily committed.”