Item 96-06-03A

California Department of Social Services - State Hearings Division
Notes from the Training Bureau - June 20, 1996

Item 96-06-03A
IHSS -- Protective Supervision -- Calderon v. Anderson (1996)

In Calderon v. Anderson (1996) 52 Cal.Rptr. 2d 846, 45 Cal. App. 4th 607, the California Court of Appeal, Second Appellate District, held that Jose Calderon, severely mentally retarded and nonself-directing, was not entitled to protective supervision because his physical condition made it impossible for him to engage in activities that would require observation or preventive intervention. The court, citing Marshall v. McMahon (1993) 17 Cal. App. 4th 1841, 22 Cal. Rptr. 2d 220, said:

"While Marshall determined that ‘nonself-direction’ was a requirement for protective supervision services, it was not the only criteria.... Marshall also described protective supervision as involving not only the observation of behavior to safeguard the individual against harm, but also the intervention to prevent harm "when the disabled person engages in potentially dangerous conduct."

The court continued:

"Accordingly, a proper interpretation of Marshall includes a finding that protective supervision is available for those IHSS beneficiaries who are ‘nonself-directing’, in that they are unaware of their physical or mental condition and, therefore, cannot protect themselves from injury, and who would most likely engage in potentially dangerous activities.... While Calderon's medical condition is severe and his situation unfortunate, protective supervision is not available merely to provide constant oversight in anticipation of environmental or medical emergencies, or exigent circumstances."

In Calderon v. Anderson, the California Court of Appeal upheld Judge James Sharp’s state hearing decision.