Now comes the guardian, Betty Baker, by and through her attorney, Martha A. Churchill, and submits the following Brief in support of a Motion to Dismiss.

On March 1, 2001, Rudolph Shorter of Monroe County CMH filed a petition to remove the guardian, Betty Baker. The petition fails to state any facts in support. Instead, the petition states only a legal conclusion:

"The current Guardian is not acting in the ward’s best interest in the areas of health, social and vocational opportunities, and proper housing/residential."

The issues which apparently precipitated the above Petition were related to the type of treatment appropriate for this individual, and the level of services she should be given by the CMH. The CMH provider and the Guardian apparently had some differences of opinion as to the services and treatment offered to the consumer, and whether some other options should have been made available.

The above issues concerning the type of treatment and level of services must be adjudicated through an administrative procedure, as outlined in 42 CFR 431.200-250. Therefore, the Probate Court is not the proper forum for resolution of this dispute. The Probate Court lacks jurisdiction to determine appropriate services for a Medicaid recipient.

The administrative procedure which must be followed for resolution of this type of dispute begins with a "Person Centered Plan" to develop an individualized plan of services for the individual consumer. The PCP, or Person Centered Plan, is called for by federal Medicaid rules in Michigan, and also by the Michigan Mental Health Code. See MCL 330.1712 (1).

The PCP is essential to working out a plan of services, and is of such importance that the Michigan Department of Community Health (DCH) has included a "PCP Best Practice Guideline" as part of its contract with every CMH provider in Michigan. The PCP Best Practice Guideline is found in the Contract as "Attachment 4.5.1.1" consisting of 11 pages.

If the parties are not in agreement with respect to a PCP, the next step is an appeal to the Administrative Tribunal through the Department of Community Health. This is called the "Medicaid Fair Hearing" because it pertains to CMH consumers who are Medicaid recipients or Medicaid eligible. In this case, Ms. Adams is a Medicaid recipient.

This administrative process allows any party not satisfied with the outcome of the administrative hearing to file an appeal with the applicable Circuit Court. In this case, if either party wished to appeal from a decision of the Administrative Law Judge after the Medicaid Fair Hearing, that party could file an appeal with the Monroe County Circuit Court. Beyond that, appeal could be taken to the Michigan Appeals Court.

For an illustration of a case where this appeal process was used in Michigan for a dispute about Medicaid covered services, see Anderson v. Dept. Social Services, 101 Mich App 488, 300 NW2d 921 (1980). In that case, there was a dispute concerning the level of care or services appropriate for an individual. The dispute was heard before the administrative tribunal, and was then appealed to the Circuit Court in Kent County, which had venue. The case was then appealed to the Michigan Court of Appeals. At no time was the Probate Court involved.

The administrative procedure for resolving this type of dispute can be verified with a simple phone call. The Department of Community Health, Administrative Tribunal, can be reached at (877) 833-0870 or (517) 335-8911. The Chief Judge is Cynthia L. Harrison.

Information about the Administrative Tribunal is also available on a web site for the Department of Community Health. Go to www.mdch.state.mi.us and then click on "Health Legislation and Policy" and click on "Administrative Tribunal."

The Administrative Tribunal at DCH is the proper forum for determining what services or treatment plan is appropriate for a CMH consumer who is a Medicaid recipient. Questions about medical care, residential services, or vocational services are not supposed to be decided in a power struggle at the Probate Court through a guardianship challenge. A Probate Judge does not have the jurisdiction to determine what treatment plan should be adopted for a Medicaid recipient pursuant to federal Medicaid law. If one person advocates a certain plan of treatment for the consumer, and another person advocates a different plan of treatment, the issue should not be decided in a guardianship dispute where a better forum is available for resolution of the issue.

The Contract between DCH and CMH contains "Attachment 4.7.4.1 Grievance and Appeal Technical Requirement." Attachment 4.7.4.1 is basically parallel to 42 CFR 431.200-250, the federal regulations applicable to CMH providers through Medicaid.

In sum, the CMH is required to give a notice to the consumer or guardian, immediately, when a service is terminated or reduced. The notice must provide information to the consumer about his or her right to a Medicaid Fair Hearing, along with the address and phone number of the Administrative Tribunal.

The CMH is not supposed to challenge the guardian’s authority in Probate Court simply because the parties disagree as to what services are medically necessary.

Here, the CMH failed to provide services for extra support staff as promised in a PCP plan of April 4, 2000. It never sent a Notice to the guardian alerting her to this denial or reduction in services. Eventually the guardian felt she had no choice but to remove the consumer from the group home and take her to the Guardian’s own home, for the safety of the consumer. Perhaps the Monroe CMH would like to violate this consumer’s rights with impunity by removing the guardian who is attempting to speak out on the consumer’s behalf.

In determining proper treatment and services for someone with a developmental disability, CMH providers throughout Michigan are expected to follow the mandates and guidelines found in the Medicaid Manual, Chapter III. This document is well-known to the Administrative Tribunal at the DCH. It is also well-known to the Monroe County CMH. It sets forth the programs and services which must be offered to persons such as Ms. Adams in order to keep her in the community in the least restrictive environment.

It would not be reasonable for a Probate Judge to determine whether the services requested by the Guardian in this case are included in the Medicaid Manual. Rather, that issue is best decided by the Guardian and the CMH representatives at a regularly held PCP meeting, and if that does not settle it, then through the usual administrative appeals process.

Ironically, in this case, the parties agreed on April 4, 2000 that Ms. Adams should move into an AFC home (AFC stands for Adult Foster Care) or a supported living apartment at the earliest opportunity. This was actually set forth in writing in the most recent PCP report, dated April 4, 2000. The CMH file contains a "CST Narrative Assessment Outline" attached to the PCP report, in which Sally Smith, the CMH case manager, wrote this statement on page 2:

"An alternative setting such as an AFC or an apartment with supports would offer appropriate staffing levels and a smaller, calm environment which would reduce anxiety levels."

On the last page of that same document, Ms. Smith wrote this statement:

"It is the opinion of this worker that Annie would benefit from a smaller residential setting with adequate staffing supports. This setting could be an AFC home or apartment setting, preferably within Monroe County. Annie's guardian is in agreement with this recommendation."

Apparently the communication channels broke down between the guardian and CMH when Ms. Adams was suffering various injuries at Harmony House, and no one appeared to make any proper investigation as to how the injuries were occurring. Ms. Adams has injured her ankle on more than one occasion, possibly due to a slippery towel when she got out of the shower, but no incident report was ever produced to the guardian explaining what happened or when.

The same is true of a rug burn on Ms. Adams’ arm. The guardian was never able to find out what happened. The guardian has observed Ms. Adams with ripped clothing, especially her pajamas, due to physical altercations associated with her morning routine getting out of bed. No reports or explanations. And finally, just before the Guardian took Ms. Adams out of Harmony House, the Guardian personally observed another resident punch Ms. Adams.

No investigation was conducted of these altercations, as required by the Michigan Mental Health Code, MCL 330.1778. Instead, the employees at Harmony House threatened to call the police on the guardian, and this retaliatory Petition against the guardian was instituted by CMH.

Another breakdown in communications has occurred with respect to Ms. Adams’ laundry. It seems she does not want to do her laundry. She probably needs some psychological or behavioral treatment, but the staff at Harmony House had 16 residents to take care of and could not devote the necessary time to dealing with this individual’s difficulties. So, at the PCP meeting, it was decided that the Guardian, Betty Baker, take care of her sister’s laundry. Oddly enough, this fact came up later in a report by the Monroe County Professional Guardian, Sharon Liedel, R.N., to the effect that Ms. Baker was being overly protective, or co-dependent, by enabling this consumer to avoid her laundry responsibilities.

These conflicts never would have materialized if CMH had honored the PCP plan which it developed in April 2000. That plan indicates that the Harmony House group home was to apply for additional staff hours to assist the consumer with her individual needs and behavioral issues. Since the PCP plan was ignored in the ensuing months, the consumer’s behavior regressed and deteriorated, while the relationship between the Guardian and CMH went south.

Ms. Adams is long overdue for a PCP meeting. She is supposed to have a PCP meeting once a year, or whenever there is a significant change in circumstances. Her laundry is a suitable topic for a PCP meeting, so that the CMH provider can allow sufficient staff time to assist this consumer in learning how to do her own laundry.

The parties have had similar disputes about hot dogs. It seems that the Guardian has sometimes brought Ms. Adams a hot dog when the regular dinner at the group home was not to her liking. This contributed to friction between the Guardian and the providers who run the group home.

It is not appropriate for a Probate Court Judge to settle a dispute as to who should do someone’s laundry in a group home for developmentally disabled adults. It is not appropriate for a Probate Judge to determine how many hours of staff supports are medically necessary pursuant to Medicaid law. It is not appropriate for the Probate Court to decide hot dog questions. If these issues cannot be dealt with adequately at a PCP meeting, they must be appealed to the Administrative Tribunal.

This court should immediately dismiss the petition filed by CMH attempting to remove the Guardian. The Guardian is a loving family member and advocate for Ms. Adams. No facts in the Petition say otherwise.

Again, quoting from the PCP report of April 4, 2000, Sally Smith stated that the consumer’s strengths include her "supportive family."  See also the Michigan Mental Health Code, MCL 330.1711, which requires that family members be treated with dignity and respect.

The individuals who work for CMH of Monroe County are undoubtedly caring professionals who want what is best for this consumer. However, they need to remember that family members can become frustrated and anxious when their loved one breaks her ankle, suffers rug burns, and is assaulted by another resident at the group home.

Rather than criticizing the family member and threatening to call the police on her, it would make more sense for the CMH employees, and their providers, to act like professionals and listen carefully to the concerns of the family. Friends and family members should be nurtured, since they are the "natural support system" for an individual with a developmental disability. Family members can occasionally be mistaken in their suggestions or requests, but even so, the job of CMH is to listen carefully and to give due consideration to the family. At their best, CMH employees can gently educate family members. Here, the CMH reacted defensively, filing this malicious petition in an effort to get rid of a perceived troublemaker.

In fact, family members who intervene on behalf of a developmentally disabled loved one are, at times, the only thing standing in the way of abuse and neglect of a vulnerable individual. What a sad commentary that the Monroe CMH, when faced with a critical or questioning family member, runs to Probate court in an effort to cut her off at the knees rather than following its own procedure as outlined in federal law, state law, and its Contract with DCH.

Making a personal attack on the family in Probate Court is not a good way to foster a working relationship with the consumer’s natural support system. Furthermore, it is a violation of the CMH and DCH administrative appeal procedure, and a violation of federal Medicaid law.

The Petition against Guardian should be dismissed.

Respectfully submitted,

Martha A. Churchill (P30535)
Attorney for Betty Baker, Guardian
108 E Main St.
Milan, MI 48160
(734) 439-4055