MOLLY A. [Note 1] vs. COMMISSIONER OF THE DEPARTMENT OF MENTAL RETARDATION.

FOOTNOTES

[Note 1] By her parents and guardians, Frank A. and Kim A.

[Note 2] Justice Laurence participated in the deliberation on this case and authored this opinion prior to his retirement.

[Note 3] Count I alleged that the DMR had failed to comply with G. L. c. 123B, §§ 1-3 (transfer statute), which governs the transfer of mentally retarded individuals between residential facilities. Count II averred that the DMR had failed to comply with its obligations under G. L. c. 71B, §§ 12A-12C (turning twenty-two statute), and the Massachusetts Declaration of Rights to provide Molly with habilitative services. Count III asserted that the DMR had violated several statutory and regulatory procedural requirements governing Molly's transition from the public school system to the DMR under the turning twenty- two statute and related regulations, 101 Code Mass. Regs. §§ 10.01-10.06 (1999).

[Note 4] The judge denied the parents' motion for summary judgment on count I of their complaint. Our decision as to count I disposes of the parents' challenge to that ruling. The judge did not, as he was obliged to do, declare the rights of the parties. See part 3, infra.

[Note 5] Unless otherwise noted, the facts discussed herein were undisputed. We follow a well-trodden path in reviewing the record on this appellate challenge to the allowance of summary judgment. We view the facts in the light most favorable to the parents, as the parties opposing summary judgment; we assume that all of the material facts set forth in their opposing affidavits are true; and we resolve all doubt as to the existence of a genuine issue of material fact -- which would make summary judgment improper -- against the DMR. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Attorney Gen. v. Bailey, 386 Mass. 367, 370-371, cert. denied, 459 U.S. 970 (1982); Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983); Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 603 (1990); Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991); Northrup v. Brigham, 63 Mass. App. Ct. 362, 366-367 (2005). As to materiality, the substantive law identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

[Note 6] Her father, Frank A., is separated from Kim A. and lives in Boston.

[Note 7] In addition to being ambulatory, Molly is able to communicate with her aides through vocalizations (although she cannot speak), facial expressions, and gestures, and to use a modified fork to feed herself with the assistance of an aide. The parents attribute Molly's accomplishments to the high level of care, particularly one-on-one care, she has received at Crotched Mountain.

[Note 8] Among the reasons given (which the parents considered incorrect or disingenuous) were the DMR's inability to certify quality at an out-of-State facility and risks to its receipt of Federal funding for services at such a facility. While initially disclaiming relative cost as a factor, once the controversy was in litigation, the DMR stressed the significantly greater expense of providing services to Molly at Crotched Mountain than at the Massachusetts alternatives it offered the parents.

[Note 9] The turning twenty-two statute, G. L. c. 71B, § 12C, inserted by St. 1983, c. 688, § 1, provides, in pertinent part, that an ITP "shall include" at least the following information: "the habilitative services found by the [transitional advisory] committee to be necessary or appropriate to assist such person in realizing his potential for self-sufficiency in major life activities; the agencies responsible for the provision of such services; the location in the least restrictive environment at which such services will be provided; and the expected duration for the provision of such services."

[Note 10] Section 10.03 authorizes an appeal of an ITP within ninety days of its receipt, failure to do so constituting a waiver of the right to an appeal. The parents specifically asked that the plan "be reconsidered" because it did not designate the location proposed for the provision of Molly's services and failed to acknowledge her continuing need for "1:1" care, primarily because of her seizure disorder, including "drop seizures."

[Note 11] The most significant event between the parents' appeal of the ITP and February 23, 2005, was an evaluation of Molly on January 7, 2005, by Heather Shilo, a registered nurse consultant in the DMR's employ, who evaluated Molly at Crotched Mountain. Over a four-hour period, Shilo observed Molly, spoke with several of her caretakers at Crotched Mountain, and met with Kim A. Shilo was unable to secure the parents' permission to receive a copy of all of Molly's medical records, but did review certain portions supplied by Kim A. On the basis of reviewing these records and her visit at Crotched Mountain, Shilo concluded that Molly could successfully integrate into a community residential facility with a two-to-one staffing ratio, with closer, one-on-one supervision for certain activities of daily living, including eating, dressing, and toileting. Shilo opined that Molly did not need twenty-four hour nursing care and a one-on-one aide at all times, based on her "feeling" that the incidence of Molly's seizures -- the most significant reason advanced by the parents for one-on-one care because of the risk of serious injury resulting from a fall during a seizure -- was not a "serious realit[y]" and that the safety risk such seizures posed had been "overestimated." Shilo was familiar with Rett's and worked with three DMR clients suffering from it, who, she claimed, did not need one-on-one care, although she provided no specifics about those clients that compared with Molly's needs and risks except for one who suffered up to forty-seven seizures per week (but who, unlike Molly, was not at risk for falling because she was nonambulatory and in a wheelchair).

[Note 12] Coyne thereafter extended the deadline for a cutoff of DMR funding to April 14, 2005, and again to June 30, 2005, as the issue of Molly's placement continued to be debated and unresolved. During this period, Molly continued to reside at Crotched Mountain, where her stay was funded by the DMR as of, and after, March 2, 2005; as the result of an injunction eventually obtained from the Superior Court by the parents, Molly has remained there pending the final disposition of this litigation.

[Note 13] Doctor Crocker is an acknowledged expert in the area of developmental disabilities in children (in which he has worked for fifty years); Rett's; the causes and prevention of developmental disabilities; and medical care for mentally retarded children and adults. Sharon Oxx is the DMR's Director of Health Services, specializing in developmental disabilities nursing, and has worked with several Rett's patients. Their conclusions and opinions derived from their visit, as summarized herein, appeared in their affidavits submitted by the DMR in opposition to the parents' subsequent motion for injunctive relief to restrain the DMR from transferring Molly from Crotched Mountain and to require the DMR to continue funding her services there pendente lite.

[Note 14] The transfer statute, which governs the DMR's proposals to transfer individuals "receiving residential services through the department" from one residential facility to another, mandates that the DMR provide that individual's guardians with written notice forty-five days in advance of a transfer. G. L. c. 123B, § 3, inserted by St. 1986, c. 599, § 39. The notice is to specify how the transfer "will result in improved services and quality of life" for the individual; the location of the new facility, with an invitation to visit it; and a statement of the statutory rights of the guardians. Ibid. If the guardians object to the transfer, the DMR must commence and prevail at an adjudicatory hearing before the division of administrative law appeals (DALA) at which the DMR bears the burden of proving how the transfer would meet the "best interest" of the mentally retarded person. Ibid. Any party aggrieved by the DALA hearing officer's decision has the right to appeal within twenty days to the Superior Court. Ibid.

[Note 15] The parents' prayer for injunctive relief was temporarily resolved by a stipulation that the DMR would continue Molly's funding at Crotched Mountain until October 31, 2005, an arrangement that, pursuant to the Superior Court judge's temporary injunction issued December 22, 2005, has remained the status quo pending the outcome of this litigation.

At this juncture, we briefly digress to comment on the unusual procedural posture of the underlying litigation. Given the EOHHS's apparent unwillingness to act on the parents' administrative appeal of the revised ITP, the appropriate vehicle for the parents' grievance should presumably have been an action in the nature of mandamus, pursuant to G. L. c. 249, § 5, to require the EOHHS to respond in some fashion to the appeal (which response 101 Code Mass. Regs. § 10.03 appears to make a mandatory duty), see Trust Ins. Co. v. Commissioner of Ins. (No. 1), 48 Mass. App. Ct. 617, 621-622 (2000); and to allege that the general prerequisite for obtaining mandamus relief, that available administrative remedies have been exhausted, see Karl V. Wolsey Co. v. Building Inspector of Bedford, 324 Mass. 419, 422 (1949), could be dispensed with by reason of exceptional circumstances, in this case arguable futility. See Athol Memorial Hosp. v. Commissioner of the Div. of Med. Assistance, 437 Mass. 417, 426 (2002). Neither occurred here.

One would also have expected the DMR, for its part, to respond to the parents' complaint with certain affirmative defenses, including the parents' unjustified failure to have exhausted their administrative remedies, see id. at 426-427; the applicability of the doctrine of primary jurisdiction because of the need for the agency's expertise to resolve the specialized issues involved, see Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 346-350 (1987); and the general lack of ripeness for judicial review because the agency had several reasonable choices available to it but had yet to make a final determination on the matter. See Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727, 729-730 (1994). The DMR's answer, however, contained no such averments. (We hasten to add that the application of these doctrines, which all serve the same purpose of "promoting proper relationships between the courts and administrative agencies," Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303 [1976], are within judicial discretion and are not "jurisdictional" [at least in the instant circumstances] in the sense that neither the Legislature nor decisional precedent has clearly made the agency's final resolution of the issues involved a jurisdictional prerequisite to judicial review [such a jurisdictional challenge being open to review at any stage of the proceedings]. Contrast Athol Memorial Hosp. v. Commissioner of the Div. of Med. Assistance, supra at 427.)

We have proceeded to address and resolve the questions raised on appeal as presented, because there would be no jurisprudential purpose served by requiring the parties to adhere to what would have been a procedurally more appropriate joinder of issues, that would further delay the determination of this controversy. But we do not intend thereby to suggest our sanctioning of their unorthodox litigation strategy or to assure the future availability of judicial review when established avenues of administrative process are short-circuited without good reason.

[Note 16] The parents submitted several expert opinions regarding Molly's condition and needs, in the form of affidavit and deposition testimony, in support of their motion for preliminary injunctive relief and in conjunction with the parties' subsequent cross motions for summary judgment. The most significant, for purposes of our review, can be summarized as follows:

Doctor James J. Riviello, Molly's treating neurologist for at least ten years, focused primarily on the risks associated with her continued "intractable" seizure disorder, noting that "[t]he increased number of seizures which Molly is experiencing at the present time" include "drop attacks" which "will cause Molly to potentially fall to the ground and seriously injure herself" and could even cause her death. He noted that because Molly is unable to identify the onset of seizures, she should have one-on-one supervision. He also advised that Molly "reside in a closely supervised environment, such as or similar to her current placement, Crotched Mountain Rehabilitation Center." He further cautioned that "[d]evelopmentally disabled individuals do not tolerate change well."

Doctor Claire D. Wilson, Molly's treating pediatrician for twelve years, similarly recommended that Molly not be transferred from Crotched Mountain, unless to a placement with a similar level of care, stressing that "her conditions have progressively worsened" and that her physical safety is alone sufficient reason for the continued provision of one-on-one supervision because her drop seizures created a risk of "significant harm and [are] potentially life-threatening" without a staff person with her at all times to identify the imminence of a seizure and then to activate a vagal stimulator that Dr. Riviello had implanted to curb the seizure activity.

John Daignault, Psy.D., an acknowledged expert in mental retardation, performed an independent evaluation of Molly at the behest of her parents and offered a detailed criticism of the DMR's proposed placements. Based upon his review of Molly's medical history and his observations of Molly, he emphasized the "serious risks to Molly's safety" from her "frequent seizures" (which, he opined, were "truly [a matter] of life and death") and advised placing her in a facility with one-on-one care during the day.

[Note 17] An individual service plan (so denominated in G. L. c. 123B, § 3, but called an "individual support plan" in the DMR regulations thereunder, 115 Code Mass. Regs. § 6.20[1] [2003], both of which are interchangeably referred to herein as an ISP) is to be developed by the DMR for mentally retarded individuals under its jurisdiction, setting forth the services, resources, and strategies that will promote the individual's health and safety. 115 Code Mass. Regs. § 6.20(2). An ISP must identify "the setting," i.e., the location, where the services and strategies are to be provided or implemented. 115 Code Mass. Regs. § 6.23(4)(e)(3) (1996).

The DMR's regulations place three particularly significant limitations on the agency's obligations regarding an ISP that are relevant to Molly's circumstances. First, the DMR's provision of services and supports to mentally retarded individuals (with an exception not claimed to be here applicable) are explicitly made "subject to the availability of resources." 115 Code Mass. Regs. § 6.20(1). Second, the DMR has up to twelve months following a mentally retarded individual's twenty-second birthday to develop an ISP if an ITP has already been developed for that individual (as had been done for Molly, notwithstanding the parents' objections to Molly's ITP). 115 Code Mass. Regs. § 6.20(4)(b) (2006). Finally, there is no requirement that the DMR prosecute the adjudicatory administrative proceeding incident to a guardian's objection to a proposed transfer of a mentally retarded individual from one facility to another if such a transfer involves a "change in placement of an individual from a location providing residential services that the Department had begun funding on an interim basis on or before the individual's 22nd birthday," 115 Code Mass. Regs. § 6.63(1)(c)(3) (1996), the very situation of the DMR's involvement with Molly.

These DMR regulations are presumptively valid, Burke v. Commonwealth, 67 Mass. App. Ct. 88, 91 (2006), and carry the force of law, Doe v. Sex Offender Registry Bd., 447 Mass. 768, 775 (2006). Courts are consequently bound to uphold them in the absence of a persuasive demonstration that they are arbitrary and capricious, i.e., that there is no conceivable rational ground on which the regulation can be sustained. See Arthur D. Little, Inc. v. Commissioner of Health & Hosps. of Cambridge, 395 Mass. 535, 553 (1985). The parents have made no effort to carry their formidable burden of establishing the absence of any conceivable ground on which the relevant DMR regulations can be accorded the judicial deference presumptively due them. They merely assert, in wholly conclusory fashion, that 115 Code Mass. Regs. § 6.63, in particular, is invalid, on the ground that a Superior Court judge so declared in a nonprecedential summary judgment decision, Grady vs. Campbell, Bristol Superior Court, No. 9401163 (May 24, 1995). That declaration, however, not only was (as is discussed below) distinguishable, but also itself provided no coherent legal analysis for so holding. The parents' attempt to rely on such truncated reasoning is unavailing. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

[Note 18] Application of the transfer statute to the turning twenty-two statute's process in the manner pressed by the parents -- i.e., by compelling the DMR, before it could place Molly at any facility in Massachusetts to which the parents objected, to initiate an administrative hearing, pursuant to G. L. c. 123B, § 3, at which the DMR would have the burden of proving that a proposed transfer not only met Molly's "best interest" -- would also require the DMR to establish that the proposed placement "will result in improved services and quality of life for the retarded" (emphasis supplied) individual, ibid., inserted by St. 1986, c. 599, § 39, presumably meaning services and quality superior to what Molly had been receiving at Crotched Mountain.

[Note 19] The comprehensive language of the turning twenty-two statute, G. L. c. 71B, §§ 12A-12C, and the applicable regulations (101 Code Mass. Regs. §§ 10.01- 10.06), can be rationally construed, as the DMR has done here, so as to conclude that the Legislature intended it to govern every disabled individual's transition process from child to adult services. (As a person suffering from disabling mental impairment, Molly falls within the statute. See G. L. c. 71B, § 12A. Cf. G. L. c. 123B, § 1.)

The statute establishes a bureau of transitional planning (BTP) and a transitional advisory committee (TAC). G. L. c. 71B, § 12B. The BTP makes a preliminary determination as to which agency is to develop an ITP. G. L. c. 71B, § 12C. If the TAC approves that determination, the designated agency develops an ITP in cooperation with BTP, the disabled individual, and the disabled individual's parent or guardian, if the disabled individual does not object. Ibid. Once an agency develops an ITP, it must be approved by the TAC before it may be put in effect. Ibid. All of these steps are intended to occur before the individual turns twenty-two. See ibid. The ITP is to specify "the habilitative services [which encompass all services 'directed toward the alleviation of limitations on major life activities of a disabled person, including . . . residential care,' G. L. c. 71B, § 12A, inserted by St. 1983, c. 688, § 1] found . . . to be necessary . . . ; the location in the least restrictive environment at which such services will be provided; and the expected duration for the provision of such services." G. L. c. 71B, § 12C, inserted by St. 1983, c. 688, § 1. The statute's sole form of recourse for guardians who contest the DMR's proposed habilitative services is an administrative appeal of the ITP. See ibid.; 101 Code Mass. Regs. § 10.03.

The disabled individual's ITP governs the provision and location of her adult services, G. L. c. 71B, § 12C, until the relevant agency (here, indisputably, the DMR) shall "have developed an individualized service plan [ISP] for the disabled person as specified on the ITP, and the services listed on the ITP are being provided." 101 Code Mass. Regs. § 10.06. The relevant agency has twelve months after an individual receiving residential support has turned twenty-two to develop such an ISP if the individual has an ITP which "calls for the individual's transition to another residential situation." 115 Code Mass. Regs. § 6.20(4)(b).

The DMR's position, that the Legislature did not intend the transfer statute to override or be grafted onto the elaborate administrative process it created for all disabled individuals in the turning twenty-two statute, is supported by the provision of the transfer statute requiring the DMR to initiate an adjudicatory administrative process "[i]f the individual service plan developed for the mentally retarded person by the department pursuant to its regulations cannot be fully implemented as a result of the guardian's objection to a proposed transfer [from one residential facility to another] . . . ." G. L. c. 123B, § 3, inserted by St. 1986, c. 599, § 39. That language demonstrates -- or at least the DMR (and the judge) could rationally so construe it -- that the Legislature presupposed that an ISP would be in place before an individual becomes eligible for the transfer statute's procedural protections. The transfer statute thus applies only to those individuals who have already completed the transition to the DMR and from an ITP to an ISP, are receiving adult services through the DMR under an ISP, and are being subsequently transferred.

[Note 20] As authority for their argument, the parents rely on two decisions, Grady vs. Campbell, Bristol Superior Court, No. 9401163 (Aug. 31, 1994) (Grady I), and Grady vs. Campbell, Bristol Superior Court, No. 9401163 (May 24, 1995) (Grady II), a Superior Court case with what they deem strikingly similar circumstances. In that case, three individuals aged out of special education upon turning twenty-two, and their guardians, objecting to the DMR's suggested transfers of the individuals, sought an order from the court that the DMR hold an adjudicatory hearing under the transfer statute before transferring them. After one judge granted the guardians a preliminary injunction (Grady I), another judge allowed the guardians' summary judgment motion on the ground that the transfer statute did apply (Grady II). The case is, however, distinguishable from Molly's (in addition to being not binding on this court). As noted in Grady II, the Department had at least two years during which it could have developed an ISP for the individuals but did not do so, and the individuals had been receiving "temporary" funding from the Department for well over a year following their twenty-second birthdays. More importantly, the court in Grady II did not address the issue of harmonizing the transfer statute with the turning twenty-two statute. We do not find the case analysis in Grady I or Grady II either relevant or persuasive in resolving the instant matter.

[Note 21] Although judicial deference to administrative "experience, technical competence, and specialized knowledge" is explicitly enjoined only by G. L. c. 30A, § 14(7), as appearing in St. 1973, c. 1114, § 3, which is not here involved, "[t]he fundamental premise of the administrative agency, and indeed the principal reason for the enormous growth of administrative agency power in the twentieth century, has been the conviction that the administrative agency, by virtue of its acquisition or [sic] expertise, is better able to make intelligent, effective, and continuing decisions in the public interest in its areas of delegated responsibility than either the legislature or the judiciary. . . . Increasingly courts expressed a willingness to defer to administrative expertise, to permit administrative agencies to make their unique contribution to the administrative process, and generally, not to interfere with the technical, specialized decisions reached by administrative agency experts." Cella, Administrative Law and Practice § 1639 (1986). See Matter of McKnight, 406 Mass. 787, 807 (1990) ("The tradition of judicial deference to agency decision making represents an important social policy decision that public agencies are generally in a better position than courts to make particular technical decisions").

Reliance on agency expertise is built into the turning twenty-two statute by the regulations promulgated thereunder, which provide as the sole form of recourse for guardians who contest the DMR's proposed habilitative services (including transfers under an ITP) an administrative appeal to the Secretary of the EOHHS (or his designee), whose decision thereon "shall be final." 101 Code Mass. Regs. § 10.03.

[Note 22] The parents' theory would effectively tie the DMR to service choices made for mentally retarded special education recipients by local school districts operating under quite different and more liberal financial standards than the DMR, namely, to provide special education children with a specified level of programs and services regardless of cost. See G. L. c. 71B, § 2, inserted by St. 1991, c. 138, § 138 (the school "shall ensure that all efforts have been made to meet such child's needs"). See also 20 U.S.C. § 1400(d)(1)(A) (2000 & Supp. IV 2004) (one purpose of Federal Individuals with Disabilities Education Act is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living").

[Note 23] Compare the affidavits of the parties' experts, at notes 11, 13, and 16, supra.

[Note 24] None of the expert affidavits was subjected by the judge to the gatekeeper analysis required under Commonwealth v. Lanigan, 419 Mass. 15, 25- 26 (1994), which applies to all expert testimony, not just that expressing views on scientific matters, Canavan's Case, 432 Mass. 304, 313 (2000). We cannot, however, conclude that the judge committed an abuse of discretion, id. at 312, by failing to have exercised his discretion in this respect, see Commonwealth v. Manning, 47 Mass. App. Ct. 923, 923 (1999), and cases cited, because neither party made a Lanigan challenge to the other's expert evidence. See Cortes-Irizarry v. Corporacion Insular de Seguros, 111 F.3d 184, 188-189 (1st Cir. 1997). Had one been made by the parents, it might have succeeded, not so much by reason of the DMR's experts' lack of qualifications, but rather because their evidence largely failed to satisfy the requirements of Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974), consisting mostly of conclusory opinions not based on admissible facts of personal knowledge (e.g., they based most of their opinions on extremely brief observations and on hearsay records and statements of third persons at Crotched Mountain, whereas the parents' principal experts testified to specific facts based on their first-hand knowledge gleaned from many years of personally treating and observing Molly). The very phenomenon that rival experts present conflicting views on summary judgment motions strongly implies that disputed issues of fact exist. See, e.g., Wyler Summit Partnership v. Turner Bdcst. Sys., Inc., 235 F.3d 1184, 1192 (9th Cir. 2000) ("Weighing the credibility of conflicting expert testimony is the province of the jury"); Larsen v. Simonds Indus, Inc., 337 F. Supp. 2d 331, 336 n.2 (D. Mass. 2004) ("The competing [expert] statistical analyses . . . create[d] a classic 'battle of the experts' that is properly resolved by a jury"). See generally Brunet, The Use and Misuse of Expert Testimony in Summary Judgment, 22 U.C. Davis L. Rev. 93 (1988).

[Note 25] The parents make a number of entirely conclusory legal assertions, including the contentions that the revised ITP was defective and a nullity (see note 26, infra); that the DMR's failure to act within thirty days of their appeal vitiated the revised ITP entirely; that the DMR must be deemed to be the EOHHS Secretary's designee for purposes of ruling on ITP appeals under 101 Code Mass. Regs. § 10.03; and that there being no ITP in place when Molly turned twenty-two, she was entitled to an ISP as of that date and to the procedural protections against transfer afforded by G. L. c. 123B, § 3.

[Note 26] See G. L. c. 71B, § 12C. The requisite location is listed as Molly's family home in Bedford; the expected duration is stated to be "until an appropriate residential placement can be developed"; the rehabilitative services deemed appropriate by the DMR's transitional advisory committee are set forth at length; and the DMR is incontestably the agency responsible for the provision of such services.

[Note 27] As the judge accurately observed, "The cost of services is a legitimate concern for the Department. . . . Unlike the Chapter 766 'unfunded mandate' model under which the cost of Molly's Crotched Mountain placement was funded until age 22, DMR programming is subject to appropriation [by G. L. c. 71B, § 12C]; the Department must . . . serve the Commonwealth's [entire] developmentally disabled adult population with such resources as the Legislature provides."

[Note 28] In count III, the parents continued to protest the failure of the DMR (which they assume is the designee of the EOHHS Secretary for appeal purposes) formally to respond to their June, 2005, appeal of the revised ITP, by "either affirming or modifying the ITP" within thirty days of their appeal, as provided in 101 Code Mass. Regs. § 10.03. They have not, however, demanded any specific relief with respect to that procedural failure. This is presumably because of their legally unsupported theory that the revised ITP was defective and the DMR's failure to "correct" its perceived deficiencies within thirty days extinguished that ITP, so that no ITP was in place when Molly turned twenty-two, and Molly was consequently entitled to the procedural protections accorded those who have an ISP.

We agree with the DMR that any delay in responding to the parents' administrative appeal did not invalidate, per se, the ITP. See, e.g., Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 679-680 (1968). Contrast, e.g., Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983). We also agree with the DMR that such a regulatory violation should be deemed harmless error in any event, because the DMR's continued negotiations with the parents over Molly's placement clearly manifested to them the DMR's position as to the legality and propriety of proceeding in Molly's case under the revised ITP, which effectively constituted an affirmance of the ITP and represented a final decision (under the parents' view that the DMR was the EOHHS designee) that thereby terminated all administrative appeal proceedings under the regulation. That turn of events appeared to leave the parents with only resort to judicial relief to challenge the DMR placement proposals. That is precisely what they did in commencing the underlying litigation shortly after the expiration of the thirty-day decision-making period under the ITP appeal regulation; and it essentially represented the very action they would have had to take in an effort to obtain further relief had the DMR (or the EOHHS Secretary) timely responded to their administrative appeal of the revised ITP with an affirmance. (But see note 15, supra.)

Nevertheless, we agree with the parents that they were entitled -- if only as a matter of efficient, public-service oriented administrative process in this uncertain and emotionally charged situation -- to a timely and more explicit explanation from the DMR in justification of its revised ITP. Such a procedurally proper handling of the parents' objections conceivably could have yielded more cooperative interchanges and obviated judicial proceedings, or at least minimized the contested issues between the parties.