BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA

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1 BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS STATE OF CALIFORNIA In the Matter of: SHAUN P., OAH No Claimant, vs. SAN GABRIEL POMONA REGIONAL CENTER, Service Agency. DECISION This matter was heard by Deborah Myers-Cregar, Administrative Law Judge, Office of Administrative Hearings, State of California, on October 20, 2010, February 8, 2011, and August 23, 2011, in Pomona, California. Claimant was represented by his parents. San Gabriel Pomona Regional Center (Service Agency) was represented by Daniela Martinez. The documentary and testimonial evidence was received. The record was held open until September 22, 2011, for written closing argument, which was timely received. ISSUE The sole issue presented for decision is whether the Service Agency may terminate funding for Claimant's social skills program at Pasadena Child Development Associates.

2 EVIDENCE RELIED UPON Documentary: Service Agency Exhibits A through I; Claimant s Exhibits 1 through 18; and testimonial evidence. FACTUAL FINDINGS 1. Claimant is a twelve year-old boy. At age five, he was diagnosed with autism, became a consumer of the Service Agency, and began receiving services pursuant to the Lanterman Act. 1 Claimant lives with his parents. Claimant is educated in a general education classroom. He does not receive social skills training through his school district. (Testimony of Ing P., Claimant s father.) 2. As a result of autism, Claimant has impaired social skills and lacks the appropriate techniques to initiate and maintain reciprocal social interactions. Service Agency initially funded a home behavioral training program, which had different goals than the group social skills program. In the home behavioral training program program, Claimant learned to regulate his temper and his parents learned to calm him down when he became excited and disregulated. (Testimony of Miriam Winer, co-director of Pasadena Child Development Associates (PCDA), and Ing P.) 3. Claimant's September 17, 2007 Individual Program Plan (IPP) described Service Agency s funded services and supports. Claimant's Objective Number 4 addressed Claimant s social skills goal: to learn to interact with his peers and gain social skills. By January 2008, Service Agency funded a 90 minute per week social skills training program at PCDA. Claimant s October 2009 IPP reviewed his progress in social skills, and continued the implementation of his social skills goal. (Exhibits B, D, E, F, and G.) 4. Two months later, on December 10, 2009, Service Agency sent Claimant a Notice of Proposed Action (NOPA) to terminate social skills training because Claimant participated in a group social skills program through PCDA since January [and] made significant progress. Skills learned in this program should now be generalized into community settings, with parent support. The NOPA referenced Claimant s November 2, 2009 IPP meeting when Service Agency verbally discussed the proposed termination of funding because social skills training is a time-limited service intended to address specific goals that have been met. Claimant s parents timely appealed the suspension, and the service has continued pending the outcome of the hearing. (Exhibit A.) 5. All the witnesses agreed that Claimant had a pattern of steady and consistent progress in gaining social emotional skills with practice, time, and professional support through PCDA s social skills training program. All the witnesses agreed that Claimant continues to have significant deficits in social skills, as further discussed below. The parties 1 Welfare and Institutions Code section 4500 et seq., 2

3 disagree as to which services should be provided to address these deficits. (Testimony of Daniela Martinez, Miriam Winer, Felicie Standley, Student s social skills facilitator, Jon Hope, Service Agency s expert witness, and Ing P.; and Exhibits B, C, D, E, G, 1, 2, 3, 4, 5, 6, 7, 8, 16, 17, and 18.) 6. Miriam Winer (Winer) is co-director of PCDA. PCDA s social skills program develops the social skills of children with social, communication, and play-skill difficulties. PCDA is a non-profit agency, a vendor for Service Agency, and a certified non-public agency for the California Department of Education. Winer is a registered nurse who earned a Master s Degree from Boston University. Winer previously worked at Eastern Los Angeles Regional Center as a supervisor for almost 12 years, and she continues to work for them as a nurse consultant. 7. Winer developed and authored PCDA s social skills Program Design, the program curriculum approved by the Service Agency. The social skills program design implements strategies using a developmental individual relationship (DIR) model, which helps the autistic child build a foundation of psycho-social development and helps broaden social and emotional capacities. The bio-psycho-social strategies include Floortime, a model which support a child s development across six basic and necessary Milestones to achieving spontaneous, meaningful and consistent interactions with other people. The DIR model teaches skills to children so that they may have purposeful interactions with others across all settings. The program helps children improve, express and regulate their emotions, their social behavior, and improve their spontaneous communication. The child is supported and coached to sustain interactions with family members and peers while expressing emotions across all contexts and settings. Each child has a developmental intervention and social skills facilitator. As the child progresses, he is paired with another child to practice social skills and spontaneously interact, negotiate, problem solve, answer questions, and have shared interactions. Parents are involved in the last fifteen minutes of the session, when the facilitators speak to them in small groups to give feedback and discuss progress made in the session. (Testimony of Winer, Felicie Standley; and Exhibits 11, 12, 12, 14, and 15.) 8. The six social-emotional Milestones of PCDA s program are (1) basic regulation and shared attention; (2) forming relationships, intimacy and trust; (3) two-way purposeful interactions; (4) complex communication and social problem solving; (5) emotional ideas: representational capacity and elaboration; (6) emotional thinking: building bridges between ideas. There are three higher level milestones which the program does not address. Each milestone contains many skills. A child must master the lower level skills and milestones consistently, spontaneously, and across all settings before progressing to the higher milestones. PCDA evaluates progress every six months. (Exhibit 11, and 15.) 9. A typical non-disabled child needs five years to reach Milestone 6. The ultimate goal is for a disabled child to experience imaginative, creative play at the equivalent level of a typical, non-disabled five year old. While typical children achieve Milestone 6 at age five with parent support, a child with a disability requires professional support. (Testimony of Winer.) 3

4 10. Felicie Standley (Standley) assessed Claimant in 2007 and has worked as Claimant s social skills facilitator at PCDA for much of his training. She also authored several of PCDA s progress reports, and she testified at hearing in support of her opinion. Claimant s July 27, 2011 progress report demonstrated that he achieved a rating of five out of six in Milestone 1 and Milestone 2; a rating of four out of six in Milestone 3; and a rating of three out of six in Milestones 4, 5, and 6. Accordingly, Claimant has not mastered all the milestones in PCDA s social skills program. Claimant is currently very successful in Milestone 1 and Milestone 2, and can be expected to successfully complete Milestone 3 soon. Claimant has emerging skills in Milestones 4, 5, and 6, and he has the potential to be successful in those Milestones with continued professional support and practice. (Testimony of Winer, Felicie Standley, Ing P.; and Exhibits 2, 3, 4, 5, 6, 8, 16, 17 and 18.) 12. Claimant had not yet achieved Milestones 4, 5 and 6, even with parent training and support. Claimant continued to demonstrate deficits in reciprocal social interactions, verbal and gestural communication, negotiating and problem solving and confidently initiating peer interaction. His mastery of those skills remained inconsistent and fragmented. Claimant did not have stable and consistent skills required to make and maintain friendships. He did not have two-way purposeful interactions, and often did not express or show emotions. (Testimony of Winer, Standley; and Exhibit 18.) 13. Winer opined that Claimant has met not his IPP goals. The criteria for completion of the PCDA program are the achievement of Milestones 1 through 6, the ability to develop age-level peer relationships and sustain two-way interactive age-level play with a peer independently. Milestone 6 involves a complex set of skills, and the strategies are more complex. Claimant must achieve that level with strength to have meaningful social interactions in life. Winer opined that the Service Agency was oversimplifying the process of learning, which is progressive in nature. Claimant has met his incremental goals, but not his IPP goals. In her opinion, terminating services before Claimant acquires all of the skills would fail to give him the range of complex skills needed for social relationships. Claimant would not be able to keep up with typical peers, with the rapid firing of questions and with complex interests. (Testimony of Winer, and Exhibit 11.) 14. Winer opined that Claimant s social skills were significantly delayed due to his late autism diagnosis and due to the late start of his social skills services. Claimant made steady and significant progress in his social-emotional development by consistently attending PCDA s social skills program, one ninety-minute session per week, over the last three years. He would have progressed twice as quickly if he had received the service twice per week. Claimants parents regularly participated in the 15 minute parent meeting each week to learn how to implement the DIR strategies. Claimants parents did not have the professional skills needed to support him at higher social emotional levels. (Testimony of Winer.) 15. Service Agency s Associate Director of Clinical Services, Jon Hope (Hope), earned an Autism Specialist credential from the University of California, Davis, after two years of study and an internship. He has started his coursework in a PhD. Program. He is 4

5 the Chair of the Service Agency s Autism Committee, and runs an autism support group for families and consumers. 16. Hope reviewed Claimant s records, PCDA s progress reports, and spoke with Winer about Claimant s level of progress. Winer believed that Claimant would require a total of three to four years of professional intervention and strategies, based on Claimant s individual needs. However, Hope opined that Claimant should probably be terminated from PCDA s social skills program at some point because his participation exceeded the recommended POS policy duration, especially when considering Claimant had participated in both the home behavioral training program and the DIR group social skills program. Hope did not observe Claimant during any sessions. 17. Service Agency developed a Purchase of Service Policy (POS) after reviewing DDS s best practices guide, reviewing literature, studies and other regional center policies. The POS states that social skills training is provided to children to develop appropriate social interaction skills for participation at home and in the community. It addresses significant challenges in the area of engagement and awareness of other people; social interaction; verbal and non-verbal social communication; and play skills. (Testimony of Hope, and Exhibit I.) 18. The POS states that the social skills training program should be provided in either group or individual sessions. It is typically provided one to two times weekly and is time limited, usually not to exceed one to two years. It involves a detailed curriculum with meaningful and measurable outcomes and parent participation. It should address specific goals and objectives identified by the IPP team and prepare the child to transition to inclusive environments to practice the skills learned and continue to build new ones. (Exhibit I.) 19. The POS further states that: Regional center may purchase social skills training if the following criteria are met: The child.. exhibits significant needs in communication and social interaction that prevent him... from forming relationships in the community or benefitting from social and recreational activities with typical peers, AND An assessment conducted by a qualified professional provides evidence that the individual s social skills will improve with a structured, time-limited intervention: AND 5

6 The parents.. agree to assume a major role in implementing training strategies between sessions. Services will not continue unless the individual, parent,...and the regional center agree and reasonable progress toward IPP objectives have been made. Progress in reaching the objectives will be reviewed every six months or at the end of a program session. 20. Hope believed that Claimant still has social skills deficits which could be longterm and ongoing. Hope believed Claimant may always need others around him for support. Hope opined that Claimant had sufficient social skills at this time, but did not opine that Claimant had met his IPP social skills goals. 21. Hope opined that Claimant needed professional training for a limited period of time. Service Agency funded two programs through PCDA: the home behavior program, which assisted Claimant with behavioral issues when he was younger; and the current DIR model group social skills training program. While Hope looked to Claimant s individual needs, he considered the use of generic and regional center resources, paid resources, and the cost-effectiveness of those resources. Hope opined that Claimant would still have some support to address his social skills from school, his karate program, and parent training. 22. Hope intended to utilize a parent training model as a critical component to Claimant s social skills training. He would be willing to fund parent training with a DIR specialist vendor for six to 12 months, and re-authorize the social skills program if Claimant had future difficulties. Hope did not expect parents to be as proficient as the professionals Claimant presently sees, but believed they could help with instruction and skills to help at home and in the community. Hope opined that research supports the conclusion that parent training could be effective because a parent spends more time with a consumer each day than a direct provider. Hope did not expect the parents to achieve the competency of a professional, but believed that the parents could be effectively trained to provide social skills opportunities to Claimant in the community. Hope believed that Claimant s enrollment in a public school and karate class might provide social skills opportunities. LEGAL CONCLUSIONS 1. Service Agency seeks to change Claimant s IPP by suspending a contracted service. By suspending Claimant s previously-funded social skills program, Service Agency bears the burden of proving by a preponderance of the evidence that the change in services is necessary. It must establish that Claimant has met his social skills goals, that the service is time-limited, and that the termination of service is necessary. (See Evid. Code, 115 and 500.) 2. For the reasons set forth in Factual Findings 1 through 22 and Legal Conclusions 3 through 17, the Service Agency has not met its burden. The evidence did not 6

7 establish that Claimant met his social skills goals and that its POS policy requires this timelimited service to be terminated. As Claimant has not met his social skills goals, and his unique needs require additional professional social skills support, the Service Agency may not terminate funding for Claimant's social skills program at PCDA. 3. The Lanterman Act, Welfare and Institutions Code Section 4500 et seq., sets forth a regional center s obligations and responsibilities to provide services to individuals with developmental disabilities. As the California Supreme Court explained in Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 388, the purpose of the Lanterman Act is twofold: to prevent or minimize the institutionalization of developmentally disabled persons and their dislocation from family and community and to enable them to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community. Under the Lanterman Act, regional centers are charged with providing developmentally disabled persons with access to the facilities and services best suited to them throughout their lifetime and with determining the manner in which those services are to be rendered. (Id. at p. 389, quoting from Welf. & Inst. Code, 4620.) 4. To comply with the Lanterman Act, a regional center must provide services and supports that enable persons with developmental disabilities to approximate the pattern of everyday living available to people without disabilities of the same age. (Welf. & Inst. Code, 4501.) Under section 4512, subdivision (b), the determination of which services and supports are necessary for each consumer shall be made through the individual program plan process (IPP). The determination is made on the basis of the needs and preferences of the consumer, and shall include consideration of a range of service options, the effectiveness in meeting the goal, and the cost-effectiveness of each option. 5. The types of services and supports that a regional center must provide are specialized services and supports or special adaptations of generic services and supports directed toward the alleviation of a developmental disability or toward the social, personal, physical, or economic habilitation or rehabilitation of an individual with a developmental disability, or toward the achievement and maintenance of independent, productive, normal lives. (Welf. & Inst. Code, 4512, subd. (b).) Services and supports may include training, recreation, camping, community integration services and social skills training. (Ibid.) The determination of which services and supports the regional center shall provide is made on the basis of the needs and preferences of the consumer or, when appropriate, the consumer's family, and shall include consideration of a range of service options proposed by individual program plan participants, the effectiveness of each option in meeting the goals stated in the individual program plan, and the cost-effectiveness of each option. (Ibid.) As the California Supreme Court recognized in Association for Retarded Citizens, supra, 38 Cal.3d at p. 390, while a regional center has no discretion at all in determining whether to implement an individual program plan, it has wide discretion in determining how to implement an individual program plan. (Italics added.) 7

8 6. As set forth in Welfare and Institutions Code section 4646, subdivision (a): It is the intent of the Legislature to ensure that the individual program plan and provision of services and supports by the regional center system is centered on the individual and the family of the individual with developmental disabilities and takes into account the needs and preferences of the individual and the family, where appropriate, as well as promoting community integration, independent, productive, and normal lives, and stable and healthy environments. It is the further intent of the Legislature to ensure that the provision of services to consumers and their families be effective in meeting the goals stated in the individual program plan, reflect the preferences and choices of the consumer, and reflect the cost-effective use of public resources. 7. As set forth in Welfare and Institutions Code section 4646, subdivision (d): Individual program plans shall be prepared jointly by the planning team. Decisions concerning the consumer s goals and objectives, and services and supports that will be included in the consumer s individual program plan and purchased by the regional center or obtained by generic agencies shall be made by agreement between the regional center representative and the consumer or, where appropriate, the parents, legal guardian, conservator, or authorized representative at the program plan meeting. 8. However, Welfare and Institutions Code section , subdivision (a), provides: Effective September 1, 2008, regional centers shall ensure, at the time of development, scheduled review, or modification of a consumer's individual program plan developed pursuant to Sections 4646 and , or of an individualized family service plan pursuant to Section of the Government Code, the establishment of an internal process. This internal process shall ensure adherence with federal and state law and regulation, and when purchasing services and supports, shall ensure all of the following: (1) Conformance with the regional center's purchase of service policies, as approved by the department pursuant to subdivision (d) of Section (2) Utilization of generic services and supports when appropriate. (3) Utilization of other services and sources of funding as contained in Section

9 (4) Consideration of the family's responsibility for providing similar services and supports for a minor child without disabilities in identifying the consumer's service and support needs as provided in the least restrictive and most appropriate setting. In this determination, regional centers shall take into account the consumer's need for extraordinary care, services, supports and supervision, and the need for timely access to this care. 9. In addition, a regional center is responsible for using its resources efficiently. Welfare and Institutions Code section 4648, subdivision (a)(2), provides that: In implementing individual program plans, regional centers, through the planning team, shall first consider services and supports in natural community, home, work, and recreational settings. Services and supports shall be flexible and individually tailored to the consumer and, where appropriate, his or her family. 10. Welfare and Institutions Code section 4648, subdivision (a) (8), provides that: Regional center funds shall not be used to supplant the budget of any agency which has a legal responsibly to serve all members of the general public and is receiving public funds for providing that service. 11. Service Agency contends that group social skills training is time-limited under its POS policy and that Claimant has sufficient social skills to justify termination of the program. Claimant contends he has not reached his IPP social skills goals and that his individual needs require continued funding of the social skills program. 12. Here, Service Agency did not establish that Claimant has met his IPP social skills goals. PCDA s social skills training Program Design is completed after achievement of Milestone 1 through 6 with strength: the development of age level peer relationships and ability to sustain two-way interactive age-level play with a peer independently. Winer and her staff conducted assessments and regular progress reports documenting Claimant s social skills, using measureable goals, baselines and data. The data measured Claimant s steady but incremental progress. The evidence demonstrated that Claimant had not mastered all six Milestones. The evidence demonstrated Claimant he had strong emerging skills in Milestones 3, 4, 5, and 6, achieving ratings of four out of six, and three out of six, respectively. Claimant needed continued professional support, not just parental support, to achieve his IPP goal. Winer was in the best position to understand Claimant s pattern of development and growth in the social skills program. Her testimony was persuasive and established that Claimant, at age 12, has not gained the social emotional skills of a typical 9

10 five year old, the goal of the social skills Program Design and his IPP. Claimant has not completed the program because he has not met his goals. 13. The witnesses all agreed Claimant continued to have social skills deficits, which were likely lifelong. Significantly, Service Agency s expert witness Hope never testified that Claimant actually met his IPP goals. Hope s testimony that Claimant had sufficient social skills to have met his IPP goals was not persuasive because all the witnesses agreed that Claimant continued to have social skills deficits, which were likely lifelong. While Hope reviewed Claimant s records and spoke to Winer, he never met or observed Claimant in his program. Hope s testimony that Claimant s general education school district placement and his karate class setting were sufficient social skills opportunities to be effective in meeting his IPP goals was not persuasive. There was no evidence that another service and support in the natural community and home would adequately address his IPP goals. Hope s testimony that parent support only would help Claimant achieve his IPP goals was not persuasive. Hope admitted that parents could not achieve the level of training that a professional possessed. The evidence established that Claimant has not mastered all six Milestones with three years of parent training and professional support, so it is unlikely Claimant could master the remaining skills that have thus eluded him, with only parent training. 14. Here, Service Agency did not establish that its POS policy required termination of a time-limited social skills program, because Claimant has met the requirements to authorize continued funding. First, PCDA s social skills program provided detailed curriculum containing meaningful goals, measurable outcomes and parental participation. The program addressed specific goals and objectives identified by the IPP team and prepared Claimant to transition to inclusive environments. Second, Claimant exhibited significant needs in communication and social interaction which prevent him from forming relationships in the community or benefitting form social and recreational activities with typical peers. Third, PDCA and its qualified professionals conducted multiple assessments using accepted methodologies which evinced that Claimant s emerging social skills would continue to improve with a structured, time-limited intervention, in this case up to four years. Fourth, the parents have assumed a major role in implementing training strategies between sessions. Fifth, Service Agency and parents agree that Claimant is making reasonable progress toward his IPP objectives. 15. Service Agency contends that authorization for social skills is limited to one to two years. However, Claimant s multiple assessments and multiple progress reports demonstrating Claimant will benefit from time limited professional intervention of approximately three to four years. The POS Policy authorizes social skills to be typically provided one to two times weekly and usually not to exceed one to two years. Here, Claimant s program was provided once weekly, not twice weekly. Predictably, he did not progress as quickly as if he had attended it twice weekly. Moreover, the evidence established that Claimant s deficits were more significant and required additional time because of the delay in his autism diagnosis and social skills services. The late provision of services, coupled with the slower delivery of services, supported a finding that Claimant s 10

11 social skills deficits required more time and professional training to address than the proscribed usual one to two year protocol. Thus, the POS policy recognizes that there may be unusual circumstances, such as this one, in which the particular developmental disability justifies the continuation of a social skills program beyond one to two years. 16. Service Agency is also required to take into account Claimant s need for extraordinary care, services, supports and supervision and the need for timely access to this care. Claimant has demonstrated a need for extraordinary care, services, supports and supervision, and a need for timely access to his care in the form of additional social skills training. Claimant requires more than one to two years of social skills training to meet his IPP goals. Claimant would have progressed more rapidly if he had received social skills training at an earlier age, and if he had received two sessions per week of social skills training. 17. Based on all the foregoing, Claimant has met the requirement of Welfare and Institutions Code section , subdivision (a). Claimant s appeal must be sustained, and the Service Agency may not terminate funding of social skills training at this time. ORDER Claimant's appeal is granted. The Service Agency shall continue to fund Claimant's services in the social skills program at Pasadena Child Development Associates. DATED: October 3, 2011 DEBORAH MYERS-CREGAR Administrative Law Judge Office of Administrative Hearings NOTICE This is the final administrative decision; both parties are bound by this decision. Either party may appeal this decision to a court of competent jurisdiction within 90 days. 11