State of Michigan
Probate Court of Monroe County
In re: ANNIE ADAMS [not her real name]
BRIEF IN SUPPORT OF MOTION TO DISMISS
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.
(A) PETITION FAILS TO STATE FACTS
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."
(B) THE ISSUE IS THE TYPE OF TREATMENT AND LEVEL
OF SERVICES
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.
(C) THE ISSUES MUST BE ADJUDICATED ADMINISTRATIVELY
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.
(D) GRIEVANACE AND APPEAL TECHNICAL REQUIREMENT
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.
(E) MEDICAID MANUAL CHAPTER III
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.
(F) APARTMENT, LAUNDRY, AND HOT DOGS
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.
CONCLUSION
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
Dated: May 29, 2001