NH Supreme Court AFFIRMS the Rights of Individuals with Intellectual and Developmental Disabilities

For immediate release                                                                    Contact: Amy Messer, Esq. 228-0432
4/10/09

            The NH Supreme Court issued an important decision in a case brought by the Disabilities Rights Center on behalf of a woman with a developmental disability.  Gretchen Parker, of Nashua, challenged the decision of an Area Agency to remove her from her residence that she shared with a friend, Richard, and a couple, Jen and Vince, who provided services to her and her friend. 
            Gretchen loved where she lived and the people she lived with.  Both Gretchen and Richard received support services through an Area Agency, which provides state-funded services for people with developmental disabilities.
            But in November, 2006, the Area Agency notified her that she would have to move.  The Area Agency felt that it was too risky for her to live with Richard due to his past aggressive behaviors, although none had ever been directed toward Gretchen.  Gretchen was very upset about the idea of moving because, as she put it, Richard, Jen and Vince “are like my family”.
            Gretchen challenged the Area Agency’s actions first at a state administrative hearing and then before the NH Supreme Court claiming that there was no reason for her to be treated any differently than any other citizen in deciding where they should live.  Attorney Alan Cronheim of Portsmouth represented Gretchen at the administrative hearing and DRC’s Attorneys Adrienne Mallinson and Amy Messer represented her before the Court.  The DRC is the state’s federally designated protection and advocacy agency. 
A unanimous NH Supreme Court agreed with DRC and Gretchen, reversing the decision of the Area Agency and the administrative hearing officer.  Chief Justice Broderick, writing for the Court, ruled that Ms. Parker had every right to decide where and with whom she could live even if there was some risk involved.  “The risk of harm is part of everyday life and reasonable people commonly choose to engage in activities that include exposure to some risk,” the Court stated.  Recognizing that people with disabilities should be able to make similar decisions about their own lives, the Court stated, “when making life decisions, persons with developmental disabilities may voluntarily expose themselves to circumstances that involve some reasonable risk without jeopardizing the funding for particular services available to them.”  The court highlighted some of the core principles of New Hampshire’s law for services for people with developmental disabilities—RSA 171-A--– independence and autonomy in decision-making, and the right of individuals to make choices weighing quality, safety, relationships, and factors most important to them because individuals “are best able to determine their own needs.”
            The Court also clarified the rights of all individuals taking appeals to the Department of Health Human Services, Administrative Appeal Unit to present all evidence to the administrative body, not limited to that which was before the Agency making the initial decision.  Therefore, in all administrative appeals before the Agency Unit (AAU), the Presiding Officer is “obligated to conduct a full evidentiary hearing, independently review the evidence, and make a determination on the facts and the law.”
            Gretchen will now happily be able to decide where and with whom to live.  Court’s opinion is at: http://www.courts.state.nh.us/supreme/opinions/2009/parke038.pdf.

 

updated July 20, 2017