PETITION OF KYLE GUILLEMETTE (New Hampshire Department of Health and Human Services)
Argued: October 24, 2018
of Health and Human Services
Disability Rights Center-NH, of Concord (James Ziegra on the
brief and orally), for the petitioner.
Shaheen & Gordon, P.A., of Concord (Karyn P. Forbes and
Alexander W. Campbell on the brief, and Ms. Forbes orally),
for Monadnock Worksource.
D. MacIntosh, P.C., of Concord (John D. MacIntosh on the
memorandum of law), for Monadnock Developmental Services.
J. MacDonald, attorney general (Laura E. B. Lombardi, senior
assistant attorney general, on the brief and orally), for the
New Hampshire Department of Health and Human Services, Bureau
of Developmental Services.
petition for a writ of certiorari, see Sup. Ct. R.
11, the petitioner, Kyle Guillemette, challenges the
determination by the Administrative Appeals Unit (AAU) of the
New Hampshire Department of Health and Human Services (DHHS)
that the notice requirements set forth in RSA 171-A:8, III
(2014) and New Hampshire Administrative Rules, He-M
310.07 did not apply when Monadnock Worksource (Worksource)
notified Monadnock Developmental Services (MDS) of its intent
to discontinue providing services to the petitioner because
that act did not constitute a "termination" of
services within the meaning of the applicable rules. Because
we conclude that the AAU's ruling is not erroneous, we
found, or the certified record supports, the following
relevant facts. The petitioner receives developmental
disability services funded by the developmental disability
Medicaid waiver program. MDS is the "area agency,"
which coordinates and develops the petitioner's
individual service plan. See RSA 171-A:2, I-b (2014)
(defining an "area agency" as a "nonprofit
corporation . . . established by rules adopted by the
commissioner [of DHHS] to provide services to developmentally
disabled persons"); see also Petition of
Sawyer, 170 N.H. 197, 199 (2017) (describing area
agencies). Worksource is a "provider agency."
N.H. Admin. R., He-M 310.02(v) (defining
provides services to disabled individuals pursuant to a
"Master Agreement" with MDS. Worksource began
providing day services to the petitioner in August 2012.
There is no indication in the record that Worksource provided
any other services to the petitioner. On March 31, 2017,
Worksource notified MDS, in writing, that Worksource was
terminating services to the petitioner "as of midnight
on April 30." The letter to MDS stated that "[t]he
Board of Directors and administration of . . . Worksource
feel this action is in the best interest of [the petitioner]
and of [Worksource]." The petitioner's mother, who
serves as his guardian, was informed by MDS of
Worksource's decision on April 3.
April 12, the petitioner's mother wrote to Worksource,
asking it to reconsider its decision to terminate services.
In an April 18 letter, Worksource's executive director
declined that request, stating: "As you, the guardian,
have repeatedly and recently expressed such deep
dissatisfaction with our services to your son, the Board and
I feel that you and [the petitioner] would be better served
by another agency . . . ." Thereafter, the petitioner
filed a complaint with the Office of Client and Legal
Services alleging that his services had been terminated
improperly and requesting that they remain in place pending
the outcome of the investigation of his complaint.
See RSA 171-A:19 (2014) (establishing the client and
legal services office); see also N.H. Admin. R.,
He-M 310.07(e) (providing that services must remain in place
while a client's appeal of a provider agency's
termination of services is pending). The petitioner
simultaneously appealed Worksource's decision to the AAU.
Office of Client and Legal Services investigator determined
that Worksource was required to follow the applicable rules
when terminating services to a client, and that Worksource
had failed to comply with them. In his written report, the
investigator stated that the executive director of Worksource
"acknowledged that . . . [Worksource] mistakenly did not
follow the termination process under [the rules] . . ., but
issued a letter to MDS indicating that [it was] terminating
[the petitioner's] day services. She explained that the
contract with MDS is what [Worksource] used as the authority
for terminating services." The investigator reasoned
that because "Worksource, as a provider agency of MDS,
has to follow the [rules] to terminate services, and
admittedly did not, the complaint is substantiated."
Worksource declined to accept the investigator's
determination and asked that the matter be referred to the
Bureau of Developmental Services (Bureau) for review. The
Bureau overturned the investigator's determination.
petitioner appealed the Bureau's decision to the AAU. His
appeal of the Bureau's decision was consolidated with his
earlier appeal of Worksource's decision. In ruling in
favor of Worksource, the AAU assumed without deciding that,
"as a provider agency[, ] Worksource [is] bound by the
requirements set forth" in the applicable rules.
However, the AAU determined that those requirements did not
apply because Worksource did not "terminate"
services to the petitioner within the meaning of the
applicable rules. The AAU denied the petitioner's
subsequent motion for reconsideration, and this petition for
a writ of certiorari followed.