Norasingh v. Lightbourne

Filed 9/9/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
AMANDA NORASINGH,
Plaintiff and Appellant,
A137967
v.
WILL LIGHTBOURNE, as Director etc., (Contra Costa County
Super. Ct. No. N11-1247)
Defendant and Respondent.
Amanda Norasingh—a young adult suffering from significant medical and mental
disabilities—appeals from the trial court’s denial of her petition for writ of administrative
mandamus. Through these writ proceedings, Norasingh seeks reinstatement of protective
supervision benefits under the In-Home Supportive Services (IHSS) Program
administered by the California Department of Social Services (CDSS). After hearing, an
administrative law judge (ALJ) concluded that Norasingh was no longer eligible for the
protective supervision benefits that she had been receiving since 2005. The trial court
subsequently affirmed the decision of the ALJ. Norasingh contends on appeal that the
trial court’s order upholding the ALJ’s decision was legally flawed and not supported by
substantial evidence. Finding that a persistent misconception regarding the scope of
Norasingh’s mental impairment has fatally undermined the eligibility determination in
this case, we reverse.
1
I. BACKGROUND
A. Protective Supervision Under the IHSS Program
“IHSS is a state social welfare program designed to avoid institutionalization of
incapacitated persons. It provides supportive services to aged, blind, or disabled persons
who cannot perform the services themselves and who cannot safely remain in their homes
unless the services are provided to them. The program compensates persons who provide
the services to a qualifying incapacitated person.” (Basden v. Wagner (2010) 181
Cal.App.4th 929, 931 (Basden).) Pursuant to subdivision (b) of section 12300 of the
Welfare and Institutions Code,1 the supportive services available under the IHSS program
include “domestic services and services related to domestic services, heavy cleaning,
personal care services, accompaniment by a provider when needed during necessary
travel to health-related appointments or to alternative resource sites, yard hazard
abatement, protective supervision, teaching and demonstration directed at reducing the
need for other supportive services, and paramedical services which make it possible for
the recipient to establish and maintain an independent living arrangement.”
CDSS is responsible for overseeing the IHSS program and has promulgated
regulations to assist in its implementation. (See Cal. Dept. Social Services Manual of
Policies and Procedures (MPP), §§ 30-700 to 30-785; Miller v. Woods (1983) 148
Cal.App.3d 862, 868 (Miller).) Administration of the IHSS program, however, falls to
county welfare departments, under the supervision of CDSS. (Miller, supra, 148
Cal.App.3d at p. 868.) Thus, it is the counties that “process applications for IHSS,
determine the individual’s eligibility and needs, and authorize services.” (Basden, supra,
181 Cal.App.4th at p. 934.) Determinations made by the counties with respect to IHSS
benefits are reviewable by hearing before CDSS at the recipient’s or provider’s request.
(Miller, supra, 148 Cal.App.3d at p. 868.)
At issue in this case is the provision of protective supervision services under the
IHSS program. According to CDSS regulation, protective supervision consists of
1
All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
2
monitoring the behavior of nonself-directing, confused, mentally impaired, or mentally ill
recipients in order to safeguard those individuals against injury, hazard, or accident. (See
MPP, §§ 30-757.17, 30-757.171.) As such, protective supervision involves “not only the
observation of behavior to safeguard the individual against harm, but also the
intervention to prevent harm ‘when the disabled person engages in potentially dangerous
conduct.’ ” (Calderon v. Anderson (1996) 45 Cal.App.4th 607, 616 (Calderon), quoting
Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1846 (Marshall), italics omitted.)
Protective supervision is not available, however, when the need is caused by a “medical
condition” and the form of supervision required is “medical.” (MPP, § 30-757.172(b);
see also Marshall, supra, 17 Cal.App.4th at p. 1853 [describing protective supervision as
“nonmedical oversight, akin to baby-sitting”].) Nor may it be provided in “anticipation
of a medical emergency.” (MPP, § 30-757.172(c).) Finally, protective supervision is
only warranted if “[a]t the time of the initial assessment or reassessment, a need exists for
twenty-four-hours-a-day of supervision in order for the recipient to remain at home
safely.” (MPP, § 30-757.173(a), italics added.)
B. Appellant’s History of Protective Supervision
Norasingh is a young woman in her twenties who suffers from a host of medical
and mental health problems, including congenital brain malformation, developmental
delay, mental retardation, diabetes, asthma, epileptic seizures, and pseudoseizures.
Pseudoseizures are psychological events which superficially resemble epileptic seizures.2
Norasingh lives at home with her parents and younger sister. In 2009, Norasingh’s
2
Norasingh submitted uncontradicted evidence at the administrative hearing in this
matter that pseudoseizures (also known as psychogenic or non-epileptic seizures) are
psychological rather than medical in origin. Indeed, the current Diagnostic and Statistical
Manual of Mental Disorders—DSM-5—includes psychogenic, non-epileptic seizures
under “conversion disorder” which is defined as “[o]ne or more symptoms of altered
voluntary motor or sensory function” found to be incompatible with “recognized
neurological or medical conditions.” (Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013) at pp. 318-319.) In other words, psychogenic seizures are a
mental impairment, not a medical condition. Respondent acknowledges as much on
appeal.
3
mother and father also became her limited conservators. Under the terms of the limited
conservatorship, Norasingh’s parents are entitled to determine her residence and make
her medical and educational decisions. The conservatorship also limits Norasingh’s
rights to marry, enter into contracts, and control her social and sexual relationships.
Norasingh first began receiving IHSS benefits in August 2004.3 She was initially
determined to be eligible for 32.90 IHSS hours, with no benefit for protective
supervision. Norasingh’s mother is her paid IHSS provider. In September 2004,
Norasingh filed a request for hearing, disputing the number of IHSS hours authorized.
Specifically, Norasingh’s mother requested protective supervision hours because
Norasingh was having seizures five times a day. In support of this request, Norasingh’s
neurologist (Dr. Klingman) submitted a November 2004 letter confirming that Norasingh
suffers from “intractable seizures both non-epileptic and epileptic” and that in-home
patient services would therefore be beneficial “for safety purposes.” After hearing, an
administrative law judge concluded that Norasingh should have been assessed for
protective supervision and ordered an evaluation, with any benefits awarded retroactive
to the date of application.
In February 2005, after further consideration of Norasingh’s case, Contra Costa
County Employment and Human Services (the County) determined that Norasingh was
eligible for protective supervision, largely on the basis of the opinion of Dr. Vivian Igra,
one of Norasingh’s treating physicians. Specifically, Dr. Igra stated that Norasingh had a
“current and past history of wandering (if not supervised)” as reported by both her mother
and her school. According to Dr. Igra, Norasingh “wanders because she has poor
judg[]ment where to go or not to go.” Further, Dr. Igra opined that “this poor judgment is
3
“IHSS is actually provided under three programs: the original IHSS program (the
residual program) (§ 12300 et seq.); the Medi-Cal personal care services program (PCSP)
(§ 14132.95); and the IHSS Plus waiver program (§ 14132.951). The latter two programs
tap into federal funds, and IHSS recipients will receive services under the residual
program only if they do not qualify under the other two programs. (§§ 12300, subd. (g),
14132.95, subd. (b), 14132.951, subd. (d).).” (Basden, supra, 181 Cal.App.4th at p. 933,
fn. 4.) According to the ALJ, Norasingh receives IHSS through PCSP.
4
directly cause[d] by her cognitive deficit from her congenital malformation in her brain.”
Finally, Dr. Igra reported that Norasingh had “many” seizures (both pseudoseizures and
physical seizures) and that she was currently in therapy to “treat the cause of why she has
the pseudoseizures.” The county public health nurse concluded that Norasingh was
eligible for protective supervision “because of her self-endangering behaviors stemming
from her cognitive deficit,” but was not eligible because of her pseudoseizures or
physical seizures. As a result of this change in position, Norasingh was granted 195
IHSS hours as “non-severely impaired.” In August 2007, Norasingh was reassessed and
her protective supervision services were continued. Effective October 2008, Norasingh’s
IHSS hours were increased to 226.70 when (without explanation in the record) her
protective supervision status was changed to severely impaired. In March 2010, her
IHSS hours were further increased to 233.10 after it was determined that Norasingh was
“still at risk” and required protective supervision for “safety.”
On March 17, 2010, Norasingh’s neurologist, Dr. Austin, submitted a Physician’s
Evaluation stating that Norasingh was “mildly confused” and could ambulate and transfer
alone. However, she was in need of assistance for some personal care and domestic
services. Dr. Austin—who reported seeing Norasingh every three to six months and
knowing her for approximately ten years—listed her current diagnoses as diabetes,
obesity, medically refractory complex partial seizures, non-epileptic seizures, and
developmental delay. In his opinion, Norasingh required assistance to stay in her home
and was at risk of permanent out of home placement without IHSS. In particular, he
stated that the seizures and developmental delay were the main reasons for the needed
care and supervision.4
Then, on January 28, 2011, a County social worker, newly assigned to
Norasingh’s case, conducted an in-home visit to reassess Norasingh’s eligibility for IHSS
4
The administrative record also contains an Assessment of Need for Protective
Supervision For In-Home Supportive Services Program which was completed by
Dr. Austin on that same date. A standard CDSS form commonly known as a SOC 821,
the assessment indicated that Norasingh had moderate issues with memory and
orientation and mildly impaired judgment, with related problems of “falling, wandering.”
5
services, including protective supervision. With respect to the pseudoseizures, the social
worker’s notes from the home visit indicated that seizures will happen about every two
hours when Norasingh is tired and that, as a result, she can collapse and vomit. Further,
the social worker reported that during a major seizure Norasingh can freeze and drop to
the ground. These major seizures—which can be brought on by “[a]ny small
activities”—occur two or three times a week for two to four minutes and were the cause
of a fractured elbow. The social worker’s notes further described Norasingh as
developmentally at about a third grade level. They also indicated that, during the visit,
Norasingh was able to take the dog to the backyard to use the bathroom without her
mother accompanying her, although she was never out of sight. In addition, while the
social worker was present, Norasingh had a pseudoseizure for several seconds with “no
noticeable changes” occurring afterwards.
With respect to protective supervision, the social worker’s notes state as follows:
“[Social Worker] has to remove [Protective Supervision] because [client’s] mother was
not able to report any risky behavior due to client’s cognitive impairment. [Social
Worker] spent at least 10 mins trying to figure out if there were any actions that would
warrant [Protective Supervision]. [Client’s] mother stated that [client] is aware of where
she is. However, when she has her pseudoseizures, she gets fearful and can walk out of
the home then not know how to return home. However she stated that this occurs ONLY
when [client] has a pseudoseizure.” Moreover, the social worker found Norasingh to be
“very aware” of her surroundings and able to participate during the interview. She was
impressed that Norasingh was able to anticipate her dog’s needs and take care of them on
her own. And, relying on Dr. Austin’s March 2010 SOC 821, the social worker
determined that Norasingh was only “mildly impaired with ‘falling, wandering.’ ” Based
on all of these factors, the social worker concluded: “It appears that [client’s] need for
[Protective Supervision] is more for[/]related to her medical condition and in anticipation
of a medical emergency. Since these are not allowable reasons, [Protective Supervision]
must be removed at this time.” As a result, Norasingh’s IHSS hours were reduced from
233.10 to 56.80 effective April 1, 2011. Unsurprisingly, Norasingh disagreed with the
6
characterization of her condition and the elimination of her protective supervision
benefits. On February 23, 2011, she requested a hearing before CDSS.
C. The Administrative Hearing
The sole issue at the June 8, 2011, administrative hearing was the denial of
protective supervision for Norasingh. After detailing the history summarized above, the
County argued that the social worker had properly assessed Norasingh “based on the
medical evidence, observation at the home visit and discussion with the claimant’s
mother.” Although the County admitted that Norasingh has medical and psychological
conditions “which impact her ability to perform activities of daily living” and that such
conditions “rise to a level of such concern that she is at risk of out-of-home placement
without assistance,” it maintained that protective supervision was not warranted.
Specifically, adopting the position of the social worker, the County stated: “Protective
supervision was not granted for pseudo-seizures or epileptic seizures but for self-
endangering behaviors stemming from her cognitive deficit.” Since Norasingh’s mother
had not reported any risky behavior due to her daughter’s cognitive impairment, any
request for protective supervision was “more related to the claimant’s medical condition
and in anticipation of a medical emergency” and should therefore be denied. At the
hearing, the social worker reiterated that Norasingh’s wandering was the result of her
seizure activity and was therefore related to a medical condition. She also noted that
Norasingh’s day program had three-to-one staffing, an indication that constant one-on-
one supervision might not be necessary.
In response, Norasingh presented significant additional evidence supporting her
position that protective supervision services were warranted. Norasingh’s mother
indicated that her daughter had been given one-on-one supervision while in school.
However, she had been unable to find a one-on-one adult program. As a result,
Norasingh’s mother reported that, at times, Norasingh could not attend her current
program at the CAP Center because she had too many seizures and they lacked staff.
Indeed, Norasingh’s mother reported that her daughter had fallen at least five times in the
last year at the CAP Center due to her uncontrolled seizures, one time fracturing her
7
wrist. Previous injuries from falling included a broken ankle, broken tooth, and cut on
the head. According to Norasingh’s mother, the danger from her daughter falling was
exacerbated by her weight of 206 pounds. She requested protective supervision for
Norasingh to safeguard her from injury due to “uncontrolled seizures and mentally
impaired such confused and fear, fainting and walk away from us or from a group with
out conscious to another area of the house or out side of the house, she also try to open
the car door while driving.” Similarly, in her January 2011 Provider Service Report,
Norasingh’s mother indicated that her daughter “walk[s] away to wherever she wants to
go.” At the administrative hearing, Norasingh’s mother testified that she never leaves her
daughter alone “[b]ecause she can’t fend for her ok to be alone I know that I can’t
imagine (inaudible) and she can walk out from home she can burn herself and she can
(inaudible) that she cannot leave home she might forget.” She agreed that her daughter
would not know what might cause her danger.
In addition, Norasingh submitted a March 2011 letter from Dr. Austin, the
neurologist who had treated her for over ten years, which stated that Norasingh “has
uncontrolled seizures and needs protective 24 hour supervision 7 days a week so that she
will not injure herself.” The record also includes a May 2011 Mental Impairment
Questionnaire completed by Dr. Austin with respect to Norasingh. In the Questionnaire,
Dr. Austin opined that Norasingh was “unable to exercise good judgment.” As signs of
mental impairment, Dr. Austin identified: difficulty thinking or concentrating;
psychological or behavioral abnormalities associated with a dysfunction of the brain;
disorientation as to time and place; perceptual or thinking disturbances; illogical thinking;
easy distractibility; and memory impairment. Dr. Austin concluded that Norasingh has
“severe” problems in memory, judgment, and insight and requires supervision to prevent
her from placing herself in a potentially dangerous situation, such as wandering.
In a document dated February 2011, Dr. Shah reiterated Norasingh’s many
diagnoses, including pseudoseizures and developmental delay/mental retardation, and
stated: “Due to the above diagnoses Amanda is impaired and unable to care for herself
without protective supervision 24 hours per day. She has pseudoseizures daily and has
8
epileptic convulsive seizures [] several times per week. Please continue IHSS services
for her.” Dr. Shah also submitted a SOC 821 dated March 31, 2011, which indicated that
he had been treating Norasingh since 2007 and concluded that she was moderately
impaired with respect to memory, orientation, and judgment. Specifically, Dr. Shah
opined that “[a]t times of pseudoseizures she does not have her full mental capacity.”
Similarly, Dr. Shah reported that Norasingh is disoriented and confused in the aftermath
of her seizures and pseudoseizures. Moreover, with respect to judgment, Dr. Shah found
“mild to moderate impairment due to mental retardation.” Injuries reported due to
Norasingh’s mental deficits included “[s]lipped on puddle on floor; walks
away/wanders.” Dr. Shah additionally commented that Norasingh “[h]as been known to
walk away, open the front door for no reason, open car door while in motion, not
understand why water faucet gets hot [and] burns, etc.”
Finally, Dr. Olowin, a psychiatrist, completed a SOC 821 dated April 4, 2011,
listing Norasingh’s diagnoses as mental retardation and psychogenic seizure. Dr. Olowin
found Norasingh to be moderately impaired in both memory and orientation, but severely
impaired in judgment. With respect to judgment, Dr. Olowin noted specifically that
Norasingh “wanders into potential danger when experiencing a psychogenic seizure, or
drop[s] to the floor.” Injuries caused by Norasingh’s mental impairments included the
fracture of her arm on July 7, 2010. Finally, Dr. Olowin concluded that “[w]ithout
constant supervision Amanda is in danger of accident or injury.” In a letter dated
April 27, 2011, Dr. Olowin reiterated that Norasingh is not capable of being left alone for
a significant period of time. Rather, Dr. Olowin “determined that her impulse control,
insight, and judgment are poor, thus she could expose herself to harm without the
supervision of others.”
After considering all of the evidence, the ALJ concluded—in a July 13, 2011,
decision—that Norasingh “does not require 24-hour supervision to protect her from
injury, hazards or accidents because of her mental impairment.” The basis for this
determination was the ALJ’s observation that there was no current evidence presented
regarding Norasingh’s propensity to wander. Rather, according to the ALJ, the only
9
evidence of wandering was a “March 17, 2011,” evaluation in which the doctor indicated
he was aware of “past injuries or accidents related to wandering.”5 Finally, the ALJ
opined: “Although the recipient has seizures, these seizures are part of her medical
condition and to allow protective supervision to monitor her seizure activity would be to
allow protective supervision in anticipation of a medical emergency.” Subsequently, on
July 21, 2011, CDSS adopted the ALJ decision.
D. The Petition for Writ of Mandate
On August 9, 2011, Norasingh filed a petition for writ of mandate in superior
court, challenging the ALJ’s decision and seeking to compel CDSS to provide protective
supervision services. In particular, she argued that the ALJ’s decision was contrary to
CDSS regulation, against the advice of her treating physicians, and otherwise
unsupported by the evidence. She also claimed that the ALJ had improperly shifted the
burden of proof from the County (to support its termination of protective supervision) to
Norasingh (to prove her continued need for such services).6 Finally, Norasingh asserted
that the ALJ improperly found her psychogenic seizures to be a medical condition for
which protective supervision is unavailable. For its part, CDSS maintained that the
ALJ’s decision was supported by the weight of the evidence and that Norasingh could not
overcome the “strong presumption of correctness” to which this administrative decision
was entitled. Specifically, CDSS averred that there was no current evidence of risky
behavior. Further, although it conceded that Norasingh’s pseudoseizures “appear to be
5
Presumably, the ALJ was referring to Dr. Austin’s report dated March 17, 2010,
although this was not the most current evaluation, nor was it the only evidence of
wandering presented.
6
We see no merit in this contention. As the trial court pointed out, the County never
contested the fact that, pursuant to CDSS regulations, it had “the burden of going forward
in the hearing to support its determination.” (MPP, §§ 22-073.3, 22-073.36.) The
County presented a summary of Norasingh’s IHSS history, including medical opinions
and the social worker’s assessment, to meet this burden. Norasingh was then free to
attempt to rebut the evidence presented and to argue that it was insufficient to meet the
County’s burden, both of which she did. The fact that the ALJ ultimately disagreed with
her did not mean that the initial burden of proof was improperly shifted away from the
County.
10
psychological in origin,” CDSS argued that there was insufficient evidence that
Norasingh was prone to engaging in self-endangering behavior because of her
pseudoseizures. At the hearing on November 27, 2012, Norasingh’s attorney argued that
there was no recent evidence of actual dangerous behavior by Norasingh precisely
because she had been under protective supervision, which “encompasses not just
watching the individual, but constantly redirecting them from doing any type of
dangerous behavior or activity.” CDSS, in contrast, countered that there was no evidence
during the relevant timeframe that Norasingh “even had a penchant to wander, that she
even had a proclivity to engage in the self-endangering activity.”
On December 28, 2012, the trial court issued its order denying appellant’s petition
for a writ of administrative mandamus, holding that the ALJ’s determination was
supported by the weight of the evidence. Preliminarily, the trial court determined that—
given the County’s obligation to reassess Norasingh’s need for benefits on an annual
basis—the only question before the court was whether to affirm the social worker’s 2011
assessment. The court then concluded that the ALJ properly gave “substantial weight” to
the opinion of the social worker in this case, because Norasingh had not offered any
evidence that the social worker was biased, unqualified, failed to spend adequate time on
her assessment of Norasingh, or failed to apply the correct criteria in making her
assessment. In contrast, the trial court found the many medical opinions offered by
Norasingh’s treating physicians to be of “limited evidentiary value,” both because the
doctors had not observed Norasingh in her home setting and because the court deemed
their opinions conclusory. With respect to potentially self-endangering behaviors, the
trial court noted that the medical opinions “would appear to be based on second-hand
information rather than personal observation.” Thus, their persuasiveness was
“substantially” diminished. Finally, the trial court found probative the fact that
Norasingh was “apparently unable to offer even a single specific example of self-
endangering behavior occurring in 2010 or 2011.” The court therefore denied
Norasingh’s petition. Notice of entry of judgment was served on January 16, 2013, and
this timely appeal followed.
11
II. DISCUSSION
A. Standard of Review
Judicial review of a denial of Medi-Cal benefits is governed by the administrative
mandate process set forth in section 1094.5 of the Code of Civil Procedure.7 (Ruth v.
Kizer (1992) 8 Cal.App.4th 380, 385 (Ruth); see also § 10962.) “In reviewing decisions
denying applications for public assistance such as Medi-Cal benefits, the superior court
exercises its independent judgment, i.e., it reconsiders the evidence presented at the
administrative hearing and makes its own independent findings of fact.” (Ruth, supra, 8
Cal.App.4th at p. 385; see also Frink v. Prod (1982) 31 Cal.3d 166, 174-180
[independent judgment applied in cases involving fundamental vested rights, including
the denial of welfare benefits].) In doing so, however, the court “ ‘must afford a strong
presumption of correctness concerning the administrative findings, and the party
challenging the administrative decision bears the burden of convincing the court that the
administrative findings are contrary to the weight of the evidence.’ ” (LaGrone v. City of
Oakland (2011) 202 Cal.App.4th 932, 940 (LaGrone).)
Put another way, while the presumption of correctness is “the starting point for the
trial court’s review,” as a presumption it is rebuttable and may be overcome by the
evidence. (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064,
1077 (Breslin).) Thus, when applying the independent judgment test, the trial court may
reweigh the evidence and substitute its own findings for those of the agency, after first
giving “due respect” to the agency’s findings. (Ibid.) In the end, when ruling on an
application for a writ of mandate, “the trial court uses its independent judgment to
determine whether the weight of the evidence supports the administrative decision.”
(LaGrone, supra, 202 Cal.App.4th at p. 940; see also Code Civ. Proc., § 1094.5, subd. (c)
7
Pursuant to Code of Civil Procedure section 1094.5, subdivision (b), “the inquiry in
such a case shall extend to the questions whether the respondent has proceeded without,
or in excess of, jurisdiction; whether there was a fair trial; and whether there was any
prejudicial abuse of discretion. Abuse of discretion is established if the respondent has
not proceeded in the manner required by law, the order or decision is not supported by
the findings, or the findings are not supported by the evidence.”
12
[“in cases in which the court is authorized by law to exercise its independent judgment on
the evidence, abuse of discretion is established if the court determines that the findings
are not supported by the weight of the evidence”].)
On appeal from a decision of a trial court applying its independent judgment, we
review the trial court’s findings rather than those of the administrative agency.
(Calderon, supra, 45 Cal.App.4th at p. 612.) Specifically, we review the trial court’s
factual findings for substantial evidence. In doing so, we must resolve all conflicts in
favor of CDSS, the party prevailing below. Further, we cannot reweigh the evidence.
Thus, we do not determine whether substantial evidence would have supported a contrary
judgment, but only whether substantial evidence supports the judgment actually made by
the trial court. (Natalie D. v. State Dept. of Health Care Services (2013) 217 Cal.App.4th
1449, 1455; see also LaGrone, supra, 202 Cal.App.4th at p. 940.) In sum, “[t]he question
on appeal is whether the evidence reveals substantial support—contradicted or
uncontradicted—for the trial court’s conclusion that the weight of the evidence supports
the [agency’s] findings of fact. [Citation.] We uphold the trial court’s findings unless
they so lack evidentiary support that they are unreasonable.” (Breslin, supra, 146
Cal.App.4th at p. 1078.)
With respect to issues of law, in contrast, our review is de novo. (Breslin, supra,
146 Cal.App.4th at p. 1077; Ruth, supra, 8 Cal.App.4th at p. 385.) In this regard, we
acknowledge that an administrative agency’s interpretation of its governing regulations—
such as CDSS’s interpretation of the regulations governing the IHSS program in this
case—is entitled to “great weight and deference.” (Calderon, supra, 45 Cal.App.4th at
pp. 612-613.) It is not, however, dispositive. (Motion Picture Studio Teachers &
Welfare Workers v. Millan (1996) 51 Cal.App.4th 1190, 1195 [deference does not permit
an agency to disregard a regulation’s plain language].) Further, “ ‘ “[w]hen the facts do
not conflict and the issues involve proper application of a statute or administrative
regulation, a reviewing court is not bound by the trial court’s determination.” ’ ”
(Calderon, supra, 45 Cal.App.4th at p. 612; see also Breslin, supra,146 Cal.App.4th at
p. 1078, fn. 14 [“[s]ubstantial evidence review in an administrative mandamus case
13
includes within it the duty to determine whether the administrative body committed errors
of law in applying the facts before it”].)
Applying these standards to the present case leads us to the inescapable conclusion
that reversible error has occurred.
B. Application of the Evidence to IHSS Regulations
As stated above, “protective supervision is available for those IHSS beneficiaries
who are non-self-directing, in that they are unaware of their physical or mental condition
and, therefore, cannot protect themselves from injury, and who would most likely engage
in potentially dangerous activities.” (Calderon, supra, 45 Cal.App.4th at p. 616.) Prior
cases analyzing the availability of protective supervision have listed examples of
“ ‘potentially dangerous’ ” conduct for which supervision may be authorized, including
playing with matches; immersing electrical appliances in water; wandering away from
home; cooking; smoking a cigarette; and engaging in self-destructive behavior such as
temper tantrums and head-banging against a wall. (Ibid.) However, pursuant to CDSS
regulation, protective supervision is only available “for observing the behavior of
nonself-directing, confused, mentally impaired, or mentally ill persons.” (MPP, § 30-
757.171.) Thus, it cannot be authorized “[w]hen the need is caused by a medical
condition and the form of the supervision required is medical.” (MPP, § 30-757.172(b).)
And, it is unavailable “[i]n anticipation of a medical emergency.” (MPP, § 30-
757.172(c).)
In the present case, protective supervision was initially granted to Norasingh based
on wandering behavior due to her cognitive deficit. This fact alone, however, does not
control our resolution of this matter. Rather, protective supervision is available if “[a]t
the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-
day of supervision in order for the recipient to remain at home safely.” (MPP, § 30-
757.173(a), italics added.) And, in fact, eligibility for IHSS benefits must generally be
reassessed on an annual basis. (MPP §§ 30-761.13, 30-761.212.) Thus, the only issue
before us (as the trial court correctly found) is whether, at the time of the 2011
reassessment, any basis existed for determining that Norasingh was likely to engage in
14
potentially dangerous conduct due to nonself-direction, confusion or mental impairment.
(MMP §§ 30-757.17, 30-757.171; Calderon, supra, 45 Cal.App.4th at p. 616.) Of
course, evidence of past benefits is relevant to this inquiry, but it is current eligibility and
need that is dispositive.
Here, the assessing social worker removed Norasingh’s protective supervision
benefit after her 2011 reassessment because she claimed that Norasingh’s mother was
unable to identify any current, risky behavior caused by Norasingh’s cognitive
impairment. Similarly, the ALJ determined that there was no current evidence presented
regarding Norasingh’s propensity to wander, the original basis for Norasingh’s receipt of
protective supervision benefits in 2005.8 Finally, the trial court also concluded that
protective supervision was inappropriate because Norasingh was reportedly “unable to
offer even a single specific example of self-endangering behavior occurring in 2010 and
2011.”
In fact, however, there was significant evidence in the record that, as a result of
her psychogenic seizures, Norasingh has repeated periods where she is nonself-directing
and that, during these timeframes, she is unable to protect herself from injury and is
likely to engage in potentially risky behavior. By the social worker’s own report
generated in connection with her January 2011 home visit, Norasingh has pseudoseizures
approximately every two hours when she is tired from which she can collapse and vomit.
Further, the social worker reported that during major seizures—which can be brought on
by “[a]ny small activities” and occur two or three times a week—Norasingh can freeze
and drop to the ground, involuntary behavior that has caused injury, including a fractured
elbow. In addition, the social worker acknowledged that when Norasingh “has her
pseudoseizures, she gets fearful and can walk out of the home then not know how to
return home.” Although it is true that no specific timeframe was ascribed to this
8
In the instant case, the ALJ concluded, in essence, that Norasingh’s level of need had
changed. Thus, we need not reach Norasingh’s argument that CDSS’s previous
authorization of protective supervision benefits created some kind of blanket presumption
that such benefits must continue absent proof of changed circumstances.
15
inclination to wander, since the information was elicited at the January 2011 home visit
in response to the social worker’s request for reports of risky behavior to support the
continuation of protective supervision, it is reasonable to assume that it was current.
Indeed, the social worker did not reject the information as untimely, but rather discounted
it because it related to Norasingh’s “medical condition.”
Additionally, Norasingh’s mother reported that her daughter had fallen at least five
times in the last year at her day program due to her seizures, one time fracturing her
wrist. Previous injuries from falling at the program included a broken ankle, broken
tooth, and cut on the head.9 The record does not clearly establish that all of these falls
stemmed from Norasingh’s psychogenic seizures, rather than her epileptic seizures.
However, given the fact that she has psychogenic seizures every two hours and epileptic
seizures only twice a week, it seems likely that at least some of the falls are attributable to
her psychological condition. Further, Dr. Olowin, a psychiatrist, reported that Norasingh
falls (and broke her arm in July 2010) as a result of her psychogenic seizures.
Norasingh’s mother also described Norasingh’s mental impairment, including confusion,
fear, fainting, walking away, and trying to open the car door while driving. She testified
at the administrative hearing that she never leaves her daughter alone because she would
not know what might cause her danger. Rather, if left alone, Norasingh might walk away
from home and not know how to return or might burn herself.
Finally, current statements by Norasingh’s treating physicians support her need for
protective supervision based on her psychogenic seizures. For instance, a March 2011
letter from Dr. Austin, a neurologist who had treated Norasingh for over ten years, stated
that Norasingh “has uncontrolled seizures and needs protective 24 hour supervision 7
9
The social worker argued at the administrative hearing that one-on-one supervision
might not be needed for Norasingh as she goes to a day program where there is only
three-on-one supervision. According to Norasingh’s mother, she has been unable to find
a one-on-one adult program. However, given the number of injuries sustained by
Norasingh while at the program and the fact that she is, at times, unable to attend because
she is having too many seizures and the program lacks staff, this situation would seem, if
anything, to be a strong indicator that more intensive supervision is required.
16
days a week so that she will not injure herself.” In addition, Dr. Austin completed a
detailed Mental Impairment Questionnaire in May 2011 regarding Norasingh in which he
concluded that Norasingh has “severe” problems in memory, judgment, and insight and
requires supervision to prevent her from placing herself in a potentially dangerous
situation, such as wandering. Further, Dr. Shah submitted a SOC 821 dated March 31,
2011, which indicated that he had been treating Norasingh since 2007 and concluded that
she was moderately impaired with respect to memory, orientation, and judgment.
Specifically, Dr. Shah opined that “[a]t times of pseudoseizures, she does not have her
full mental capacity” and that she is disoriented and confused in the aftermath of her
seizures and pseudoseizures. Injuries reported due to Norasingh’s mental deficits
included “[s]lipped on puddle on floor; walks away/wanders.” Finally, in her SOC 821
dated April 2011, Dr. Olowin, a psychiatrist, found Norasingh to be severely impaired in
judgment, stating specifically that Norasingh “wanders into potential danger when
experiencing a psychogenic seizure, or drop[s] to the floor.” According to Dr. Olowin,
Norasingh broke her arm in July 2010 as a result of her mental impairment and
“[w]ithout constant supervision [Norasingh] is in danger of accident or injury.”
Norasingh complains that the trial court impermissibly discounted the opinions of
her treating physicians, finding that the opinion of the social worker assigned to assess
her took precedence over all other evidence. In reality, the trial court found the social
worker’s assessment to have “substantial weight” after determining that it had several
indicia of reliability. In contrast, the trial court concluded that the medical opinions
offered by Norasingh were of “limited evidentiary value” for several stated reasons.
Although Norasingh may not agree with the outcome, the trial court was entitled to weigh
the evidence and determine its relative value. (See Breslin, supra, 146 Cal.App.4th at
p. 1077.) Further, the trial court’s process mirrored that required of the County when
assessing the need for protective supervision. Under CDSS regulation, protective
supervision is only available “as determined by social service staff.” (MPP, § 30-
757.173.) Further, any medical opinions submitted via a SOC 821 “shall be used in
conjunction with other pertinent information, such as an interview or report by the social
17
service staff or a Public Health Nurse, to assess the person’s need for Protective
Supervision.” (MPP, § 30-757.173(a)(2); see also § 12301.21, subd. (b).) Finally, the
SOC 821 “shall not be determinative, but considered as one indicator of the need for
Protective Supervision.” (MPP, § 30-757.173(a)(3); see also § 12310.21, subd. (b).) In
sum, the trial court did not give “precedence” to the social worker’s report (which would
be inappropriate under the above-cited CDSS regulations), but instead considered “all of
the evidence” and found the social worker’s opinion, in this particular case, to be the
more credible.
Nevertheless, we conclude that error has occurred. The parties agree that
Norasingh has psychogenic seizures and that these seizures “appear to be” psychological
in nature. However, we are convinced from our review of the record that both the social
worker who assessed Norasingh and the ALJ who reviewed that assessment were
operating under the misapprehension that Norasingh’s psychogenic seizures were a
medical condition and therefore any dangerous behaviors related to those seizures could
not be considered for purposes of qualifying Norasingh for protective supervision. The
social worker, for instance, although she acknowledged that Norasingh can get fearful,
walk out of the home, and not know how to return, indicated that “this occurs ONLY
when” Norasingh has a pseudoseizure. As a result, the social worker determined that
Norasingh’s need for protective supervision related to her medical condition and was in
anticipation of a medical emergency. When asked at the administrative hearing whether
she understood that psychogenic seizures are actually a mental illness and not a physical
issue, the social worker testified: “I was reading up on that (inaudible) . . . .” Similarly,
in denying Norasingh’s application for protective supervision, the ALJ expressly stated:
“Although the recipient has seizures, these seizures are part of her medical condition and
to allow protective supervision to monitor her seizure activity would be to allow
protective supervision in anticipation of a medical emergency.”
It is true that, in its decision denying Norasingh’s writ of administrative mandate,
the trial court made no findings regarding the character of Norasingh’s psychogenic
seizures, despite the uncontroverted evidence presented that they were psychological in
18
origin. However, even discounting the opinions of Norasingh’s treating physicians as the
trial court did, it is difficult to square the court’s conclusion that Norasingh did not offer
“even a single specific example of self-endangering behavior occurring in 2010 and
2011” with the evidence of falling and injury in the record, unless Norasingh’s
psychogenic seizures were deemed by the trial court to be a non-qualifying medical
condition. Indeed, the trial court indicated that it’s decision rested on the general
consideration that protective supervision is “not authorized to protect a person from
medical risks.” Finally, it opined that no evidence was presented “showing that the social
worker failed to apply the correct criteria in making her assessment,” a statement which
could only be true if the trial court agreed with the social worker that Norasingh’s
pyschogenic seizures constituted a medical condition.
In sum, a persistent misunderstanding regarding the nature of Norasingh’s
psychogenic seizures fatally infected the entire assessment process and cannot be squared
with the plain language of CDSS regulations authorizing protective supervision except in
cases where “the need is caused by a medical condition and the form of the supervision
required is medical.” (MPP § 30-757.172(b).) In fact, the need caused by Norasingh’s
psychogenic seizures is not caused by a medical condition. In addition, medical
supervision does not seem to be required to protect her from wandering or sustaining
injury due to falls. Rather, what is needed is a type of “non-medical oversight, akin to
baby-sitting.” (Marshall, supra, 17 Cal.App.4th at p. 1853.) We note in this regard that
MPP section 30-757.172(b) is written in the conjunctive. Thus, evidence on either of
these points should be sufficient to remove Norasingh from the purview of the “medical”
exception to protective supervision. Indeed, it seems that Norasingh’s nonself-directing,
confused behavior in the wake of her epileptic seizures as described by Dr. Shah should
also be considered when determining her eligibility for protective supervision, so long as
any supervision required is not “medical.” (See Marshall, supra, 17 Cal.App.4th at p.
1853 [nonself-directing behavior due to a physical ailment may support eligibility for
protective supervision].) For similar reasons, supervision to redirect Norasingh from
wandering and/or falling as a result of her psychogenic (or epileptic) seizures does not
19
appear to be “[i]n anticipation of a medical emergency.” (MPP § 30-757.172(c).)
Wandering away from home has been expressly recognized as the type of potentially
dangerous conduct for which protective supervision is appropriate. (Calderon, supra, 45
Cal.App.4th at p. 616.) Moreover, we perceive no distinction between falling as the
result of nonself-direction and head-banging, another type of self-destructive conduct for
which protective supervision has been endorsed. (Ibid.)
Given the pervasiveness of the problem, we cannot, on this record, definitively
determine whether Norasingh is actually entitled to protective supervision due to risky
behaviors associated with her psychogenic seizures. For instance, because Norasingh’s
psychogenic seizures were viewed as interchangeable with her epileptic seizures for
protective supervision purposes, the two were often discussed together, making it
difficult to distinguish between the behaviors caused by each. Further, given the social
worker’s disinterest in behaviors related to Norasingh’s psychogenic seizures, the timing
of those behaviors was not sufficiently explored in the 2011 assessment. Norasingh is
therefore entitled to a new assessment which properly considers behaviors related to her
psychogenic seizures as a potential basis for protective supervision, along with all other
relevant evidence. As part of this new assessment, Norasingh should provide any
available evidence of a current propensity for engaging in self-endangering behavior
during periods of nonself-direction or as a result of a mental impairment such as her
psychogenic seizures.
As a final matter, we note our disagreement with Norasingh’s contention that she
is required to actually engage in dangerous activity in order to remain eligible for
protective supervision. As CDSS properly points out, what is required is evidence of a
propensity for engaging in self-endangering behavior as a result of her mental
impairment. Thus, while evidence of falling and related injury due to her psychogenic
seizures would certainly be probative of a need for protective supervision, so too would
evidence of the number of times that Norasingh’s mother has stopped her from falling.
Similarly, evidence of actual wandering related to her psychogenic seizures or other
mental impairments would clearly support provision of protective supervision, but so too
20
would evidence of the many times Norasingh’s mother (or another caretaker) is required
to redirect Norasingh away from the front door, the stove, the hot water faucet or any
other potentially dangerous situations. A simple log indicating the date and the nature of
the incident would be useful evidence. In addition, well-supported medical opinion
that—because of her nonself-direction, cognitive deficit or other mental impairment—
Norasingh lacks the judgment to protect herself from harm (either generally or during her
persistent seizures) would also be relevant.
III. DISPOSITION
The judgment is reversed and the case is remanded to the trial court with
instructions to issue a peremptory writ of mandate compelling CDSS to set aside its
decision denying Norasingh eligibility for protective supervision benefits and to
reconsider its eligibility determination in light of this decision. Appellant is entitled to
her costs on appeal.
21
_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P.J.
_________________________
RIVERA, J.
22
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Judith S. Craddick
Counsel for Plaintiff and Katherine Siegfried
Appellant: Bob Capistrano
Kari Rudd
Bay Area Legal Aid
Counsel for Respondents: Kamala D. Harris
Attorney General of California
Julie Weng-Gutierrez
Senior Assistant Attorney General
Susan M. Carson
Supervising Deputy Attorney General
Nimrod P. Elias
Deputy Attorney General
23