D.F. v. Department of Developmental Services ( 2023 )

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22-P-52 Appeals Court
D.F.1 vs. DEPARTMENT OF DEVELOPMENTAL SERVICES.
No. 22-P-52.
Suffolk. November 8, 2022. - April 27, 2023.
Present: Neyman, Desmond, & Grant, JJ.
Developmentally Disabled Person. Intellectually Disabled
Person. Department of Developmental Services. Medicaid.
Statute, Construction. Administrative Law, Agency's
interpretation of statute.
Civil action commenced in the Superior Court Department on
July 23, 2020.
The case was heard by Jackie A. Cowin, J., on motions for
judgment on the pleadings.
Gerard J. Cedrone (David J. Zimmer also present) for the
plaintiff.
Christine Fimognari, Assistant Attorney General, for the
defendant.
Felicia H. Ellsworth & Charles C. Kelsh, for Harvard Law
School Project on Disability, amicus curiae, submitted a brief.
Joshua M. Daniels, for families of other self-directed
program participants, amici curiae, submitted a brief.
1 By his parent and legal guardian.
2
GRANT, J. This case requires us to interpret G. L. c. 19B,
§ 19, colloquially referred to as the "real lives" statute,
which was enacted in 2014 and has not yet been construed by an
appellate court.2 The real lives statute allows individuals with
intellectual or developmental disabilities who receive services
through the Department of Developmental Services (department),
to do so under a self-directed model that permits them to choose
their own service providers and tailor supports to meet their
needs within an individual budget set by the department.3 The
plaintiff, D.F., contends that when the department set his
individual budget for fiscal year 2020, it violated the real
lives statute in three ways: (1) by not basing his budget on
his "assessed needs," a term included in the definition of an
individual budget in G. L. c. 19B, § 19 (a); (2) by giving undue
weight to his utilization of services during the prior fiscal
year to set his budget for the upcoming year; and (3) by not
2 Rather unusually, G. L. c. 19B contains two sections
numbered 19, enacted nearly simultaneously and effective on
consecutive dates. The one at issue was added by St. 2014,
c. 255, § 1, and was effective November 4, 2014. The other
§ 19, added by St. 2014, c. 234, § 1, as amended by St. 2014, c.
359, § 61, was effective November 3, 2014, pertains to
fingerprint-based databases, and is not relevant here.
3 The self-directed model of service delivery is also
referred to in the statute as "self-determination," G. L.
c. 19B, § 19 (e) (6), and by the department as "participant-
directed."
3
ensuring that the value of his budget was "equivalent to the
amount the department would have spent" if it had provided
services to D.F. under the traditional model, as required by
G. L. c. 19B, § 19 (e) (6). D.F. raised those claims without
success in administrative proceedings and then in his G. L.
c. 30A, § 14, appeal to the Superior Court, where the judge
upheld the budget set by the department. He now appeals from
that judgment. We conclude that the individual budget set by
the department for D.F. was consistent with the statutory
requirements. Thus, we affirm the judgment.4
Background. The controlling facts are not in dispute and
are drawn from the administrative record.
1. D.F.'s receipt of services under the traditional model.
D.F. is an adult with autism who has obtained services from the
department since 2012. Beginning in that year, D.F. received
day program support services that were funded by the department
under the traditional model: the department directly paid
D.F.'s service providers and then received partial reimbursement
from Medicaid's home and community-based services waiver
program. See G. L. c. 19B, § 18 (describing interagency funding
of services to persons "with common needs for care and
4 We acknowledge the amicus briefs of the Harvard Law School
Project on Disability and the families of other self-directed
program participants.
4
treatment"). In connection with those services, the department
generated an individual support plan for D.F. which it updated
annually. See 115 Code Mass. Regs. §§ 6.20 (2016), 6.21-6.25
(2012). For several years up to and including fiscal year 2019,
D.F. attended a day program five days each week at 3L Place,
Inc. (3L Place). The department paid 3L Place for those
services and was partially reimbursed through Medicaid. Under
the traditional model, the department's payments to 3L Place,
and Medicaid's reimbursements to the department, were only for
services that D.F. used; for days that D.F. did not attend, 3L
Place was not paid.
2. D.F.'s transition to receive services under the self-
directed model. In April 2019, D.F. notified the department
that he wanted to transition to the self-directed model. He and
the department agreed to make the change effective for fiscal
year 2020, beginning July 1, 2019. That spring, the department
updated D.F.'s individual support plan for fiscal year 2020,
setting forth information such as D.F.'s activities at 3L Place
and his progress and goals and noting his upcoming transition to
the self-directed model.
In May 2019, the department approved a written plan of care
(May 2019 plan of care) for D.F. for the upcoming fiscal year
2020. The May 2019 plan of care was required for the department
to obtain Medicaid reimbursement under the home and community-
5
based waiver program. See 42 U.S.C. § 1396n(c)(1). As required
by 42 C.F.R. §§ 441.300, 441.301(b), the May 2019 plan of care
stated that, based on an assessment of D.F.'s health and welfare
needs, thirty hours per week of community-based day supports
from 3L Place constituted services that were needed to prevent
his institutionalization.
As of July 1, 2019, the programmatic structure of 3L Place
changed from a traditional, community-based day program to a
pilot program that was not reimbursable by Medicaid.5 Under the
self-directed model, D.F. chose to attend 3L Place's education
and training institute pilot program, which was not licensed or
certified by the department, see G. L. c. 19B, § 15, and cost a
higher hourly rate than the 3L Place day program he had attended
previously. Unlike the traditional model, under which the
department paid 3L Place only for services that D.F. used, the
self-directed model required the department to make D.F.'s
individual budget available to him to purchase services,
supports, or goods. See G. L. c. 19B, § 19 (i). As a result,
under the self-directed model 3L Place could be paid for
services on days that D.F. did not attend the pilot program.
5 From the record before us, it is not apparent whether the
department was aware, when it approved the May 2019 plan of
care, that the 3L Place pilot program that D.F. had chosen was
not eligible for Medicaid reimbursement.
6
Because D.F. chose the self-directed model for fiscal year
2020, the real lives statute required the department to set an
individual budget for him. See G. L. c. 19B, § 19 (e) (4). The
department initially set the budget at $22,000, which was the
amount of the department's contract with 3L Place for fiscal
year 2019 under the traditional model. After a conference with
D.F.'s guardian, the department adjusted the budget to take into
account D.F.'s actual attendance at 3L Place during fiscal year
2019. As a result, the department increased the budget to
$24,516, which was the amount the department had spent on D.F.'s
services for fiscal year 2019. Because the pilot program was
more expensive than the program that D.F. had attended under the
traditional model, his individual budget set by the department
covered his attendance at the 3L Place pilot program for only
two days per week.
D.F. sought a fair hearing, contending that his individual
budget should be set to reflect the thirty hours per week of day
supports set forth in the May 2019 plan of care. D.F. argued
that, computed at the $17.24 hourly rate that the department had
been paying 3L Place under the traditional model, multiplied by
fifty weeks per year, that amounted to $25,860 -- i.e., $1,344
more than the individual budget set by the department. He
contended that his "assessed needs" for the purposes of the real
lives statute, G. L. c. 19B, § 19 (a), were thirty hours per
7
week in a day program, as reflected in the May 2019 plan of
care, and the department's basing his fiscal year 2020 budget on
his "utilization" -- the value of the services he had actually
used during fiscal year 2019 -- did not comply with the real
lives statute.
Following a hearing, a department hearing officer made
findings of fact and proposed conclusions of law, recommending
that the commissioner of the department uphold her decision.
The hearing officer found unpersuasive D.F.'s contention that
the May 2019 plan of care for Medicaid reimbursement set forth
his assessed needs, or that it was relevant to setting his
individual budget under the self-directed model, because the 3L
Place pilot program that he chose to attend would not be
reimbursed by Medicaid. The hearing officer concluded that
"while the statute provides individuals the ability to choose a
more expensive service, the statute does not impose the
additional financial burden on the Commonwealth." The hearing
officer also concluded that "the [d]epartment's consideration
and incorporation of [D.F.]'s prior utilization of his
traditional day program supports in fiscal year 2019 is
consistent with a rational interpretation of the statute." The
commissioner issued a final decision on June 24, 2020, adopting
the hearing officer's findings and recommended decision.
8
On appeal to the Superior Court pursuant to G. L. c. 30A,
§ 14, the parties filed cross motions for judgment on the
pleadings. A judge allowed the department's motion and denied
D.F.'s motion. For essentially the reasons articulated by the
hearing officer and adopted by the commissioner, the judge
concluded that the May 2019 plan of care was not relevant to the
department's setting D.F.'s individual budget for fiscal year
2020 under the self-directed model. Moreover, the judge
concluded that the real lives statute did not preclude the
department from basing D.F.'s individual budget for fiscal year
2020 under the self-directed model on the amount that the
department had spent during fiscal year 2019 to pay for D.F.'s
services under the traditional model. The judge reasoned that
"[t]he conclusion that what has met one's needs in the
immediately preceding year will meet one's needs in the upcoming
year is logical and fair, not arbitrary and capricious."
Moreover, the judge noted that, as D.F. has experienced in the
past, "[the department] will increase its funding when a
participant uses more services than planned, within his assessed
needs." Accordingly, the judge concluded that D.F. "does not
identify how, if at all, [the department's] budget for [fiscal
year 2020] did not meet his assessed needs. Without evidence
that [the department's] calculation did not, actually, fail to
9
provide for his own assessed needs, [D.F.] cannot meet his
burden of proof in this matter."
Discussion. 1. Standard of review. "Appellate review
under G. L. c. 30A, § 14, is limited to determining whether the
agency's decision was unsupported by substantial evidence,
arbitrary and capricious, or otherwise based on an error of law"
(citation omitted). Burke v. Board of Appeal on Motor Vehicle
Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 205 (2016).
"This standard of review is highly deferential to the agency on
questions of fact and reasonable inferences drawn therefrom."
Brookline v. Alston, 487 Mass. 278, 299 (2021) (Alston), quoting
Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420
(1992). D.F., as appellant, bears the burden of proving that
the administrative determination was invalid. See Forman v.
Director of the Office of Medicaid, 79 Mass. App. Ct. 218, 221
(2011). In the context of this G. L. c. 30A, § 14, appeal, D.F.
was "required to show that [his] substantial rights may have
been prejudiced" by the department's actions. M.D. v.
Department of Developmental Servs., 83 Mass. App. Ct. 463, 471
(2013).
D.F. raises issues of statutory construction of the real
lives statute. "Questions of statutory interpretation . . . are
questions of law and thus are reviewed de novo." DiMasi v.
Secretary of the Commonwealth, 491 Mass. 186, 191 (2023). We
10
give "substantial deference" to a reasonable interpretation of a
statute that is made by the administrative agency charged with
its enforcement (citation omitted). Id. "We do not interpret
regulatory statutes in a manner that imposes procedural
requirements on an agency that are not clearly mandated by the
statutory language." Molly A. v. Commissioner of the Dep't of
Mental Retardation, 69 Mass. App. Ct. 267, 281 (2007). However,
"[a]n incorrect interpretation of a statute by an administrative
agency . . . is not entitled to deference" (citation omitted).
DiMasi, supra.
A fundamental tenet of statutory construction is that the
language of the statute "should be given effect consistent with
its plain meaning and in light of the aim of the Legislature
unless to do so would achieve an illogical result" (citation
omitted). DiMasi, 491 Mass. at 191. "Ordinarily, where the
language of a statute is plain and unambiguous, it is conclusive
as to legislative intent (citation omitted)." City Council of
Springfield v. Mayor of Springfield, 489 Mass. 184, 187 (2022).
However, where statutory language is ambiguous, "familiar
principles of statutory construction guide our interpretation"
(citation omitted). Patel v. 7-Eleven, Inc., 489 Mass. 356, 362
(2022). In such circumstances, we may ascertain the intent of
the Legislature from the language of the statute, "considered in
connection with the cause of its enactment, the mischief or
11
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated" (citation omitted). Id. at 362-363.
2. The real lives statute. In considering an appeal based
upon issues of statutory interpretation, we set out the terms of
the statute at issue in "some detail." J.W. v. Department of
Developmental Servs., 86 Mass. App. Ct. 374, 376 (2014). The
real lives statute requires the department to promulgate
regulations implementing it, G. L. c. 19B, § 19 (n), but the
department has yet to do so.6 Absent any regulatory guidance on
the process for setting an individual budget under the self-
directed model, our focus is on the language of the statute.
The real lives statute requires the department to
"facilitate and assist in the preparation of a person-centered
plan, individual support plan and individual budget for each
participant." G. L. c. 19B, § 19 (e) (1). The statute then
defines each of those three documents. First, a "person-
centered plan" is "a plan of service for a participant who
elects to participate in self-determination." G. L. c. 19B,
§ 19 (a). Although the hearing officer equated a person-
centered plan with an individual support plan, the statute
6 During and after oral argument, the parties informed us
that regulations have been drafted and are in the public comment
stage.
12
separately defines the two terms and provides that, once
created, the person-centered plan is to be incorporated into the
individual support plan. G. L. c. 19B, § 19 (a).
Second, the real lives statute defines an "individual
support plan" as meaning the same as in the existing regulations
applicable under the traditional model. G. L. c. 19B, § 19 (a),
citing 115 Code Mass. Regs. § 6.20. As in effect at the time of
D.F.'s transition to the self-directed model, those regulations
described the process for generating an individual support plan,
and directed that it be developed and updated annually by a team
that included the developmentally disabled person and his or her
guardian, as well as employees of the department. See 115 Code
Mass. Regs. §§ 6.20-6.25.
Third, as discussed in more detail below, an "individual
budget" is "an allocation of federal and state funds based upon
the participant's assessed needs." G. L. c. 19B, § 19 (a). As
to the spending of the money in the budget, "[t]he amount of the
individual budget shall be available to the participant each
year for the purchase of self-determination services, supports
or goods." G. L. c. 19B, § 19 (i). The department may
recalculate an individual budget based on the needs of the
participant, or adjust it if the participant does not use all
funds in the budget within the designated year. See id.
13
3. Individual budget. D.F. contends that the department
violated the statute by setting his individual budget for fiscal
year 2020 without adequately considering his "assessed needs,"
as that term is used in the definition of individual budget in
G. L. c. 19B, § 19 (a). He also argues that in setting his
individual budget for fiscal year 2020, the department gave
undue weight to his utilization of services in the previous
year. Finally, D.F. argues that the department violated G. L.
c. 19B, § 19 (e) (6), by not setting his individual budget so
that its value was "equivalent" to the amount the department
would have spent if he had continued to receive services under
the traditional model.
a. Based on assessed needs. D.F. argues that because the
budget set by the department fell short of the amount projected
in his May 2019 plan of care, it was not based on his "assessed
needs" as that phrase is used in the real lives statute, G. L.
c. 19B, § 19 (a). Section 19 (a) defines an "individual budget"
as
"an allocation of federal and state funds based upon the
participant's assessed needs, as determined by the
department in consultation with the participant, the
participant's individual support plan team and chosen
planning team, used to facilitate self-determination and to
purchase services, supports or goods identified or
referenced in the person-centered plan" (emphasis added).
D.F. notes that the May 2019 plan of care form contained
the following preprinted language:
14
"This Plan of Care is prepared to satisfy one of the
conditions of the Commonwealth to receive federal
reimbursement under the Massachusetts [home and community-
based services] [w]aiver for the Department of
Developmental Services. [Department] waiver services
identified in . . . this Plan of Care are based on an
assessment of the individual's health and welfare needs and
constitute services that are needed to prevent
institutionalization" (emphases added).
Because of the similarity between the words emphasized above and
the phrase "assessed needs" in the definition of individual
budget in the real lives statute, D.F. contends that his
assessed needs for the purposes of that statute were what was
set forth in his May 2019 plan of care: thirty hours per week
of community-based day supports.7 The department counters that
D.F.'s assessed needs for the purposes of the real lives statute
were based on D.F.'s initial assessment in 2012, updated
annually in his individual support plans, and those assessed
needs were for community-based day supports.
The real lives statute does not define "assessed needs."
We note that those words come immediately after the phrase "an
allocation of federal and state funds." G. L. c. 19B, § 19 (a).
We interpret that to mean that the Legislature intended that the
7 D.F. argues that the individual budget set by the
department fell $1,344 short of the amount calculated from the
number of hours and the hourly rate set forth in his May 2019
plan of care. He does not argue that the phrase "based upon the
participant's assessed needs" in the definition of an individual
budget, G. L. c. 19B, § 19 (a), meant that the budget was
required to satisfy or fulfill all of his assessed needs. Thus
we do not reach that issue.
15
assessed needs on which the budget was based were those that met
both Federal and State funding requirements. Indeed, § 19 (j)
of the real lives statute provides that "[t]he self-
determination option established under this section shall be
contingent upon federal financial participation," and requires
the department to promulgate regulations that "seek to maximize
federal financial participation in, or funding or reimbursement
for, self-determination." G. L. c. 19B, § 19 (j).8
We also read the definition of an individual budget in
conjunction with two sections of the statute about setting the
budget. First, G. L. c. 19B, § 19 (e) (4), requires the
department to "set individual budgets annually in a fair,
equitable and transparent manner in consultation with the
participant and the participant's individual support plan."
That requirement that the department consult the participant's
individual support plan tends to show that the Legislature
intended that a participant's assessed needs were to be
established after considering the information set forth in the
individual support plan.9 Here, the hearing officer found that
8 The department does not argue that because D.F. chose a
program that was ineligible for Medicaid reimbursement, G. L.
c. 19B, § 19 (j), precluded him from using the self-directed
model. Thus we do not reach that issue.
9 As mentioned above, G. L. c. 19B, § 19 (a), defines an
individual support plan by reference to the preexisting
regulation, 115 Code Mass. Regs. § 6.20. That regulation
16
D.F. "did not offer evidence of an assessed need that the
[department]-proposed self-directed budget fails to meet." We
accord substantial deference to that factual finding. See
Alston, 487 Mass. at 299.
Second, G. L. c. 19B, § 19 (i), provides that "[t]he
department, in consultation with the participant and the
participant's chosen planning team, shall determine the initial
and any revised individual budget for the participant," and
"[a]n individual budget may be recalculated by the department
based on the needs of the participant." That the department
"may" recalculate an individual budget based on the
participant's actual "needs" cuts against D.F.'s argument that
we should read a mandate into the phrase "based upon the
participant's assessed needs" in the definition of an individual
budget, G. L. c. 19B, § 19 (a). See Perez v. Department of
State Police, 491 Mass. 474, 483 (2023).
To support his argument that his "assessed needs" for the
purposes of his individual budget should be what was set forth
in his May 2019 plan of care, D.F. points to the Federal
regulation about modification of a Medicaid plan of care, 42
defines "individual support planning" as "an on-going process of
establishing goals . . . that may be related to the individual's
vision statement . . . and of identifying supports and
strategies that will promote achievement of those goals." 115
Code Mass. Regs. § 6.20(2)(b).
17
C.F.R. § 441.301(c)(2)(xiii)(A), which requires
"[d]ocument[ation]" of a "specific and individualized assessed
need" in order for the modification to be eligible for Medicaid
reimbursement.10 He maintains that because the department
approved his May 2019 plan of care which documented his
"specific and individualized assessed need" under that Federal
regulation, that plan of care was also relevant to his "assessed
needs" within the definition of an individual budget in G. L.
c. 19B, § 19 (a). The argument is unavailing, for two reasons.
First, the real lives statute does not mention the Medicaid
plan of care or the Federal statute and regulation governing it.
See 42 U.S.C. § 1396n(c)(1); 42 C.F.R. § 441.301(b). Instead,
as discussed above, the Legislature referred to the individual
support plan as defined in 115 Code Mass. Regs. § 6.20. Based
on that regulation, and as mentioned above, D.F.'s individual
support plan for fiscal year 2020 set forth information such as
his activities in his day program and his progress and goals.
It did not include projections for the number of hours he would
spend in that program or the cost. Where the real lives statute
requires the department to set the individual budget in
10For reasons not apparent on this record, in fiscal year
2020 the 3L Place pilot program was not eligible for Medicaid
reimbursement. In those circumstances, we cannot assume that
the pilot program would have met a "specific and individualized
assessed need" of D.F. within the meaning of 42 C.F.R.
§ 441.301(c)(2)(xiii)(A).
18
consultation with the individual support plan, G. L. c. 19B,
§ 19 (e) (4), we will not inject into the statute a requirement
that the department also consider the Medicaid plan of care.
"We do not read into the statute a provision which the
Legislature did not see fit to put there, nor add words that the
Legislature had an option to, but chose not to include."
Commissioner of Correction v. Superior Court Dep't of the Trial
Court for the County of Worcester, 446 Mass. 123, 126 (2006).
Second, because Medicaid reimbursed the department only for
services that D.F. actually used, the May 2019 plan of care did
not establish a budget. Rather, it established a maximum amount
of services for which Medicaid would reimburse the department:
thirty hours per week of day support services. The hearing
officer credited the testimony of the department's regional
director that in her thirty-nine years working for the
department, no participant had ever utilized the maximum amount
allocated in a Medicaid plan of care, typically because of
issues such as vacation or illness. We defer to that
credibility finding. See Alston, 487 Mass. at 299.
To the extent that the meaning of the words "based upon the
participant's assessed needs" in G. L. c. 19B, § 19 (a), could
be considered ambiguous, we look to the legislative history of
the statute. See Crossing Over, Inc. v. Fitchburg, 98 Mass.
App. Ct. 822, 832 (2020). A prior version of the bill would
19
have defined an "individual budget" as "a dollar amount for
goods, services and supports specified in the person-centered
plan that is under the control and direction of the individual."
2013 House Doc. No. 4237. That bill was referred to the House
Committee on Ways and Means, which recommended amendments. See
2014 House J. 1735. Ultimately the definition of an individual
budget was amended to the phrasing at issue here. Additional
amendments included the language that became G. L. c. 19B,
§ 19 (j), mentioned above, which makes self-determination
contingent on Federal financial participation and requires the
department to maximize Federal funding for individuals who
choose that model. The Legislature's focus on controlling the
costs of self-determination in enacting the real lives statute,
including in the final language defining an individual budget,
cuts against the broad interpretation of "assessed needs" that
D.F. proposes.
We note that D.F. does not contend that unusual
circumstances caused him to miss attending the 3L Place day
program in fiscal year 2019, or that if he had continued in a
traditional program in fiscal year 2020, he would have attended
it for thirty hours per week throughout that year. If illness,
unavailability of services, significant increases in costs, or
other unusual issues had rendered what the department spent in
fiscal year 2019 a poor comparison, the department would have
20
had to take those factors into consideration when setting D.F.'s
individual budget for fiscal year 2020. We do agree that
looking only at what was spent, without considering any
extraneous factors, would not do justice to the intent of the
statute.
b. Utilization. D.F. also argues that the department
improperly considered, or at least gave undue weight to, his
utilization of services in fiscal year 2019 as an indicator of
his assessed needs for fiscal year 2020. The hearing officer
interpreted the term "utilization" to refer to "an analysis of
the total services and supports delivered or rendered to [D.F.]
at his traditional day program." We cannot agree with D.F.'s
premise that considering his actual utilization of services
during the prior year is not permitted by the real lives
statute, or divorces his individual budget from his assessed
needs. Indeed, G. L. c. 19B, § 19 (i), anticipates that the
department will consider a participant's utilization of services
in setting an individual budget. That section provides: "Funds
not spent by the annual individual budget shall revert back to
the department. The department shall consider adjusting a
participant's individual budget when a participant does not
utilize all funds in the participant's individual budget within
the designated year." G. L. c. 19B, § 19 (i). For those
reasons, we agree with the Superior Court judge that the
21
department's considering the number of hours that D.F. actually
used in fiscal year 2019 when setting his individual budget for
2020 was "logical and fair, not arbitrary and capricious."
c. Value equivalent to amount department would have spent
for services under traditional model. D.F. also argues that the
individual budget that the department set for him under the
self-directed model was not "equivalent" to what it would have
spent under the traditional model, as required by the real lives
statute, G. L. c. 19B, § 19 (e) (6). That section requires that
the department
"ensure that the value of a participant's individual budget
is equivalent to the amount the department would have spent
providing services, supports or goods to the participant if
the participant had chosen to receive services, supports
and goods through a traditional service model supported by
the department" (emphases added).
G. L. c. 19B, § 19 (e) (6).
The parties focus on the word "equivalent" in that section.
D.F. contends that it means "equal in value or amount." See
Commonwealth v. Ray, 435 Mass. 249, 252 (2001). The department
contends that its meaning is ambiguous, and it could mean either
equal in value or equal in effect. Cf. Edwards, petitioner, 464
Mass. 454, 462 (2013) (under G. L. c. 261, § 27F, when indigent
criminal defendant seeks funds for expert services, judge may
order alternative, lower cost services that are "substantially
equivalent").
22
We focus instead on the words "would have spent providing
services." D.F. argues that his fiscal year 2020 individual
budget under the self-directed model should equal the amount of
money the department would have paid if it had provided all of
the services listed in the May 2019 plan of care, which totaled
$25,860. We reject D.F.'s argument that "would have spent"
means that his individual budget should have been set at what
the department and Medicaid would have been willing to spend if
he had maximized his services projected for fiscal year 2020.
We agree with the department that, even if we were to accept
D.F.'s definition of the word "equivalent," the department met
that definition here by setting his fiscal year 2020 individual
budget at an amount precisely equal to the amount it had spent
for D.F.'s services in fiscal year 2019.
Because under the traditional model the department paid for
only those services or programs that D.F. actually used, but
under the self-directed model D.F. may choose to spend his
individual budget on a program and then not attend it on some
days, a precise comparison of the funding under the two models
may not be possible. As the hearing officer put it, "To set
[D.F.]'s budget based on the maximum utilization identified in
his defunct [plan of care] would not be fair to individuals
using the traditional fee-for-service modality, or to persons
who don't have (or who have never had) a [plan of care]." We
23
agree. In setting D.F.'s individual budget, the real lives
statute allowed the department to cap the budget at what it
would have spent for services delivered under the traditional
model. See G. L. c. 19B, § 19 (e) (6). As noted by the hearing
officer, the statute does not require the department to pay for
a more expensive program.
Indeed, in determining whether the value of D.F.'s
individual budget is "equivalent" to what the department would
have spent providing him services under a traditional model,
G. L. c. 19B, § 19 (e) (6), it would be foolhardy for the
department to ignore what it in fact spent in the prior year for
services under the traditional model. D.F.'s actual use of
services in fiscal year 2019 did not equal the thirty hours per
week projected in his plan of care during that year, and D.F.
did not show a likelihood that this would change in fiscal year
2020. The department did not have to ignore that fact in
setting D.F.'s individual budget.
Conclusion. We conclude that D.F. has not met his burden
to show that the department's administrative determination in
setting his individual budget for fiscal year 2020 failed to
comply with the real lives statute. See Forman, 79 Mass. App.
Ct. at 221.
Judgment affirmed.