D.F. v. Department of Developmental Services

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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.