Court finds people can get services and supports to live with their families,
even if the supports and services look like Supported Living Services
This memo
discusses J.K. v. Office of
Administrative Hearings (OAH) et. al., 2004 WL 2713269 (Cal.App. 4th
Dist.), an unpublished California Court of Appeal decision about supported
living services (SLS). The court held that,
while adult regional center consumers living in their family’s home can not
receive SLS, they can receive the services
and supports they need in order to maintain their living arrangement.
What is the J.K. v. OAH case?
In J.K. v. OAH, the Court of Appeal decided
that the supported living regulation
limiting SLS to consumers who do not live
with a parent does not violate the Lanterman Act. But the Court found that the
supported living regulation as applied to J.K. violates the Lanterman Act because
the services J.K. requested were not SLS
within the meaning of the Act.
J.K. is a
young woman who is an Inland
Regional
Center consumer. Through her
family, J.K. requested that the regional center meet her around-the-clock care
and supervision needs by approving a supported living plan. The regional center
denied this request and based its denial, among other things, on the reasoning
that the DDS regulations prohibit the
regional center from providing supported living services to a consumer who
lives with a parent.
Can I receive SLS if I live with my
parents?
No. The
Lanterman Act provides: “[T]he Legislature places a high priority on providing
opportunities for adults with developmental disabilities, regardless of the
degree of disability, to live in homes
that they own or lease with support available as often and for as long as
it is needed, when that is the preferred objective in the individual program
plan. In order to provide opportunities for adults to live in their own homes, the following procedures shall be adopted...” Welf.
& Inst. Code § 4689 (emphasis added). The Lanterman Act also says that
“consumers shall have control over the environment within their own home.” Welf. & Inst. Code § 4689 (a)(4) (emphasis
added). Furthermore, the Lanterman Act provides that: “[A]ssessment of consumer
needs may begin before 18 years of age to enable the consumer to move to his or her own home when he or she
reaches 18 years of age. Welf. & Inst. Code § 4689 (emphasis added).
The
regulation provides: “A consumer shall be eligible for [supported living
services] upon a determination made through the [individual program plan]
process that the consumer ... is living in a home that is not the place of
residence of a parent or conservator of the consumer.” Cal.
Code Regs., tit. 17 § 58613. The Court of Appeal reasoned that children do not
live in their own homes; rather, they live “at home” or “in the home”. Welf.
& Inst. Code § 4685 (a) and (c). The Court concluded that when the
Legislature referred to a developmentally disabled person’s “own home,” it
intended to exclude the home of a parent. Therefore, the Court of Appeal determined
that the regulation is consistent with the Lanterman Act. The Court of Appeal
found that the fact that J.K. has leased space in her parents’ home did not
change the substance of her living arrangement – that she is still not living
in her own home, in the sense that the Legislature intended in the Lanterman
Act.
Can I get supports and services if I live with my parents?
Yes. After
holding that the SLS regulation is
consistent with the Lanterman Act, the Court of Appeal considered whether the
regulation as applied in this case is consistent with the Lanterman Act. The
Court found that there is substantial evidence that J.K. needed the services
and supports she had requested, despite the fact that her parents had entitled
their proposed plan for services a “supported living plan.” The Court stated
that while J.K. was not eligible for supported living services, she was
eligible for the actual services proposed because under the Lanterman Act a
consumer is entitled to choose whatever services are to be provided, subject
only to his or her needs, the cost-effectiveness of the service, and the
state’s role as the payor of last resort.
The Court
noted that “the characterization of a service as a supported living service is
based on its purpose, not its content, type, or nature. If a service is
provided to help a developmentally disabled person live independently in his or
her own home, it is a supported living service; and if not, not.” Therefore,
the Court of Appeal determined that the fact that J.K. needs round-the-clock
care and supervision or the fact that her parents requested to be vendored by
the regional center to be her service providers, did not mean that the proposed
plan necessarily provided for SLS. “Nothing,
either express or implied, in the Lanterman Act makes a developmentally
disabled person living with a parent categorically ineligible for
round-the-clock care. Round-the-clock care is potentially available to other
developmentally disabled persons who do not live in their homes, such as those
in a residential or nursing facility.”
What does it mean that the case is not published?
This
decision is not officially published. An opinion of a California Court of
Appeal that “is not certified for publication or ordered published must not be
cited or relied on by a court or a party in any other action.” California
Rules of Court 977.
How can I use the Court’s opinion?
Even though
you cannot cite to this decision in a court proceeding and even though the
decision is not legally binding authority, it is helpful to be familiar with the
decision and see how the court interpreted the issue. At an administrative
hearing, you can refer to the unpublished opinion and explain that you are not
citing to the decision as precedent. You can, however, use the decision to make
a reference to the reasoning the Court used to arrive at the result. Also, you
can simply read the decision and use the court’s analysis to help you in making
your own arguments.
Conclusion:
You can only
get SLS when you live in a home that you
control. You cannot get SLS is you live with
your family. If you choose to live with your family and you need supports and
services to help you maintain your living arrangement, however, you can ask
your IPP team to include those services in your IPP. It does not matter that
the services you are asking for are similar to or serve the same function as
supported living services.
The
Lanterman Act says that you can get the supports and services you need in order
to live in the living arrangement of your choice. For example, if you need
around-the-clock supports in order to live in your parents’ home, or if you
need supported employment or transportation, you can request that the regional
center secure these services for you. If you live with your family, you do not
have to move out and live in a group home or in a supported living arrangement
in order to qualify for the supports and services you need.
How can I get more information about SLS?
For more
information about SLS, please call PAI and
ask for publication number 5143.01 (Supported
Living), and publication number 5257.01 (General Information and Materials on Supported Living Services). For
more information about regional center supports and services, call PAI for
publication number 5063.01 (Rights Under
the Lanterman Act). You can also download these publications online at
www.pai-ca.org.
Attachment:
J.K.
v OAH decision