Almost 20 years ago California established the In-Home Supportive Services (IHSS) program “to enable aged, blind or disabled poor to avoid institutionalization by remaining in their homes with proper supportive services.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 867 [196 Cal.Rptr. 69]; see Welf. & Inst. Code § 12300 et seq.1) By definition, IHSS recipients “cannot safely remain in their homes . . . unless these services are provided.” (§ 12300, subd. (a).) The purposes underlying the program, part social and part fiscal, are a fiinction of the problems associated with institutionalization, the necessary alternative if the supportive services were not available. Socially, recipients are more comfortable in familiar surroundings which contribute to their physical and psychological well being. Fiscally, institutionalization costs far more than providing supportive services in the home.
The challenged Department of Social Services (DSS) regulation singles out one of the enumerated support services, “protective supervision,” and denies it to anyone other than persons with a mental disability. Having defined protective supervision as “monitoring behavior,” DSS suggests that concept can be further defined as providing the cognitive behavior control which certain mentally impaired persons lack. Analogizing it to other IHSS support services, DSS points out that persons without yards obviously do not need “yard hazard abatement” and persons without a prosthesis clearly do not require “[c]are and assistance with prosthetic devices.” (§ 12300, subds. (b) and (c).) Therefore, it concludes, only the mentally impaired need protective supervision. Respectfully, the DSS argument is a bit like defining a “yard” to be a “lawn” and denying yard hazard abatement services to anyone with trees or shrubs.
DSS does not assert that it is only mentally disabled persons “who cannot remain safely in their homes” unless protective supervision is provided. Plaintiffs identify various categories of individuals whose physical disabilities create risks (e.g., falls, choking, strokes, seizures) which require virtually 24-hour monitoring. While conceding these risks exist, DSS contends they are properly characterized as potential medical emergencies. Protective supervision, it argues, can be provided only for persons “who are unable to perform the services themselves.” (§ 12300, subd. (a).) DSS maintains that responding to a medical emergency is not the sort of protective supervision contemplated by the Legislature because generally no person, whether or not disabled, can respond to their own medical emergency.
DSS’s argument fails to appreciate the conjunctive nature of the statutory requirements. Services under the IHSS program are available only to persons *1855“who are unable to perform the services themselves and who cannot safely remain in their homes . . . unless these services are provided.” (§ 12300, subd. (a), italics added.) It is true that individuals left by themselves might always be subject to medical emergencies where they would be better off if someone else was present to call paramedics or otherwise remedy the dangerous situation. In most cases, however, the risk is not so great that the person cannot otherwise “safely remain in their home[].” But where an eligible individual’s physical disability creates a risk so serious that they cannot otherwise remain in their home,2 protective supervision is authorized by the statute.3 The alternative—unnecessary institutionalization—is the exact vice the IHSS program was designed to avoid.
The majority opinion recognizes that interpretive regulations must be “consistent and not in conflict with the statute and reasonably necessary to effectuate [its] purpose . . . .” (Gov. Code, § 11342.2.) The mere fact that the Legislature did not expressly define “protective supervision” does not authorize DSS to administratively deny these services to otherwise eligible individuals in a manner inconsistent with the purposes underlying the IHSS program. (See Horn v. Swoap (1974) 41 Cal.App.3d 375, 381 [116 Cal.Rptr. 113].) Here DSS does not dispute there is a category of individuals with physical disabilities who will be unable to safely remain in their homes without protective supervision. There is no reasonable interpretation of the IHSS enabling statutes which would deny these persons those critical services, and an administrative regulation purporting to do so is necessarily invalid.
A petition for a rehearing was denied September 15,1993, and appellants’ petition for review by the Supreme Court was denied November 17, 1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
All statutory references are to the Welfare and Institutions Code.
I view it as within DSS’s administrative responsibilities to promulgate regulations which define the degree of risk necessary before individuals will be deemed unable to “safely remain in their homes . . . unless these services are provided.”
The majority opinion cites no authority for the proposition that a nonskilled provider of protective supervision services must be able to “avert” the medical emergency. (Maj. opn., ante, p. 1849.) Where all an individual needs to avoid institutionalization is the presence of someone who can alert medical personnel in the event of an emergency, “common sense” and the purpose underlying the statute suggest that such services should be provided.