J.W. [Note 1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another [Note 2], [Note 3]

TRAINOR, J. The Department of Developmental Services (DDS) appeals from a Superior Court judgment that vacated the decision of the Division of Administrative Law Appeals (DALA) approving the transfer of J.W. under the provisions of G. L. c. 123B, § 3. [Note 4]

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J.W. is a profoundly mentally disabled, visually impaired, and nonverbal individual. He has little or no concept of personal safety, and therefore, while he can walk independently, he cannot negotiate stairs alone. He has been a resident at the Fernald Developmental Center (FDC or Fernald) for nearly his entire life. The FDC is in the process of closing, however, and the policy decision to transfer its residents, all intellectually disabled individuals, to other appropriate care facilities is no longer subject to review by the Federal courts and would require a change in State law to prevent. [Note 5]

In a comprehensive and balanced decision, an administrative magistrate of the DALA approved the plan proposed by the DDS to transfer J.W. from his residence at Malone Park 23 at the FDC to Heffron Hall A, apartment 4, at the Wrentham Developmental Center (WDC). See G. L. c. 123B, § 3.

A judge of the Superior Court, on review, concluded that "[i]f one accepts the Magistrate's legal rulings — essentially limiting inquiry to a choice between Fernald and Heffron Hall — then there is no lack of substantial evidence for the Decision. Nor (on the same assumption) does the Court find any error in 'the logic of the analysis that the hearing officer articulated in [his] decision.' Covell v. Department of Developmental Servs., 439 Mass. 766 , 782 (2003)." Despite that, the judge concluded that the magistrate erred in his legal ruling by limiting his consideration of J.W.' s best interest to either the existing placement at Fernald or the single alternative proposed by the DDS.

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On the basis of this legal error, the judge ordered DALA's decision vacated and remanded the matter to DALA for further proceedings. This appeal followed. Although we agree with the judge's conclusion that substantial evidence supported DALA's decision, we disagree with his statutory construction. Accordingly, we vacate the judgment of the Superior Court and remand the case for entry of a judgment affirming DALA's decision.

Discussion. This appeal is based upon an issue of statutory interpretation; therefore we set out the terms of the governing transfer statute, G. L. c. 123B, § 3, [Note 6] in some detail. The transfer statute provides a specific process that must be followed by DDS in every case where it seeks to transfer an intellectually disabled individual "from one residential facility for the intellectually disabled to another." [Note 7] G. L. c. 123B, § 3, first par. The first paragraph of the section establishes DDS's general duties to consult with the permanent guardian (or nearest relative) of the individual and to give notice "at least forty-five days prior to the proposed transfer." Ibid.

The second paragraph governs notice, and the section requires DDS to request the consent of the guardians "prior to the transfer . . . from one residential facility for persons with an intellectually disability to another." G. L. c. 123B, § 3, second par. The consent must be requested in writing by registered mail "at least forty-five days prior to the proposed transfer." Ibid. DDS must include certain specific information in the written notice and

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request for consent to the proposed transfer. [Note 8]

The third paragraph of the section governs the adjudicative process in cases, such as this one, where the guardians timely object to the proposed transfer. The statute authorizes a magistrate to conduct a hearing at the request of DDS in order to determine "whether the transfer should proceed." G. L. c. 123B, § 3, third par. DDS has the burden of a proof at the hearing. Ibid. Within thirty days of that hearing, the hearing officer is required, pursuant to the statute, to issue a written decision determining "which placement meets the best interest of the ward giving due consideration to the objections to the placement made by the relative or permanent guardian" (emphasis added). [Note 9] Ibid.

In this case, the judge read the phrase "which placement meets the best interest of the ward" to necessarily refer to multiple alternatives, "especially if it takes an alternative placement to `meet the best interest of the ward.' " On that basis, the judge ruled that faced with two flawed choices, DALA should have allowed consideration of additional alternative placements or ordered DDS to consider them. [Note 10] We disagree with this interpre-

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tation. [Note 11]

We begin, as always, with the text of the statute. See Halebian v. Berv, 457 Mass. 620 , 628 (2010). While the adjective "which" could refer to any number of a group of alternative placements, the judge's adoption of that meaning here improperly ignores, in contravention of fundamental tenets of statutory construction, the plain and unambiguous antecedent language. [Note 12] See Milford v. Boyd, 434 Mass. 754 , 759-760 (2001); Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594 , 601 (2010). In particular, this interpretation is inconsistent with the process articulated in the second paragraph requiring (1) DDS to propose and to give notice of one alternative placement and (2) guardians opposed to that proposed transfer to object to that placement in writing. The multiple alternatives interpretation is also undercut by the jurisdictional grant limiting DALA to determining "whether the transfer should proceed" (emphasis added). G. L. c. 123B, § 3, third par. Given the Legislature's consistent use of the singular throughout the statute, "transfer" can only be understood to refer to the one residential placement proposed by DDS.

The judge's interpretation also conflicts with the statutory standard as construed by this court to require a comparison of the proposed placement with the existing placement. See Molly A. v. Commissioner of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 ,

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277-279 & n.18 (2007); G.R. v. Department of Developmental Servs., 84 Mass. App. Ct. 791 , 797 (2014) ("In undertaking this analysis, the magistrate properly compared the proposed services at WDC to the existing services at FDC at the time of the hearing. . . ."); M.M. v. Department of Developmental Servs., 84 Mass. App. Ct. 809 , 814 (2014) ("As required by the statutory standard, the magistrate compared the offerings of the two facilities and weighed the benefits of the transfer against the disadvantages").

Read properly as a whole, the transfer statute requires DALA to determine which of the two placements referred to in the second paragraph (current or proposed residential facility) meets the best interest of the intellectually disabled individual. If DALA concludes that DDS failed to prove that the proposed residential placement will meet the individual's best interest by providing improved services and quality of life, DALA must disapprove the transfer, thereupon ending the formal statutory transfer hearing. [Note 13] In that case, the intellectually disabled individual will continue to reside at the existing facility, and DDS would have to provide a new forty-five day notice prior to beginning any new proposed transfer.

We agree with DDS that the planning stage of the transfer process is the most appropriate time to consider multiple alternative placements. See M.D. v. Department of Developmental Servs., 83 Mass. App. Ct. 463 , 476-477 (2013). Indeed, the guardians did not "disagree with the notion that alternatives should be considered during the planning process and not at or after the ITP/ISP modification meeting."

Ideally, placement planning is intended to be a cooperative, collaborative process between the guardians and DDS. The transfer statute anticipates that by the time the parties arrive at an impasse requiring litigation, DDS will have already identified and offered a number of appropriate placement options. In fact, here the record established that during the planning phase of the placement process, DDS offered the guardians the opportunity to provide input and proposed multiple alternative placements to the

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guardians, including placements at WDC where openings existed at the time. [Note 14]

We have considered the guardians' other claims of error allegedly tainting DALA's decision and find them foreclosed by M.D. v. Department of Developmental Servs., supra, unsupported by the evidence or facts of record, [Note 15] nonprejudicial, or otherwise lacking in merit.

The judge's interpretation of the transfer statute was legally erroneous. We vacate the judgment and remand the case to the Superior Court for the entry of a new judgment affirming the transfer decision.

So ordered.