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22-P-52 Appeals Court

D.F.1 vs. DEPARTMENT OF DEVELOPMENTAL SERVICES.

No. 22-P-52.

Suffolk. November 8, 2022. - April 27, 2023.

Present: Neyman, Desmond, & Grant, JJ.

Developmentally Disabled Person. Intellectually Disabled 

Person. Department of Developmental Services. Medicaid. 

Statute, Construction. Administrative Law, Agency's 

interpretation of statute.

Civil action commenced in the Superior Court Department on 

July 23, 2020. 

The case was heard by Jackie A. Cowin, J., on motions for 

judgment on the pleadings.

Gerard J. Cedrone (David J. Zimmer also present) for the 

plaintiff.

Christine Fimognari, Assistant Attorney General, for the 

defendant.

Felicia H. Ellsworth & Charles C. Kelsh, for Harvard Law 

School Project on Disability, amicus curiae, submitted a brief.

Joshua M. Daniels, for families of other self-directed 

program participants, amici curiae, submitted a brief.

1 By his parent and legal guardian. 
2

GRANT, J. This case requires us to interpret G. L. c. 19B, 

§ 19, colloquially referred to as the "real lives" statute, 

which was enacted in 2014 and has not yet been construed by an 

appellate court.2 The real lives statute allows individuals with 

intellectual or developmental disabilities who receive services 

through the Department of Developmental Services (department),

to do so under a self-directed model that permits them to choose

their own service providers and tailor supports to meet their

needs within an individual budget set by the department.3 The 

plaintiff, D.F., contends that when the department set his 

individual budget for fiscal year 2020, it violated the real 

lives statute in three ways: (1) by not basing his budget on 

his "assessed needs," a term included in the definition of an 

individual budget in G. L. c. 19B, § 19 (a); (2) by giving undue 

weight to his utilization of services during the prior fiscal 

year to set his budget for the upcoming year; and (3) by not 

2 Rather unusually, G. L. c. 19B contains two sections

numbered 19, enacted nearly simultaneously and effective on 

consecutive dates. The one at issue was added by St. 2014, 

c. 255, § 1, and was effective November 4, 2014. The other 

§ 19, added by St. 2014, c. 234, § 1, as amended by St. 2014, c. 

359, § 61, was effective November 3, 2014, pertains to 

fingerprint-based databases, and is not relevant here.

3 The self-directed model of service delivery is also 

referred to in the statute as "self-determination," G. L. 

c. 19B, § 19 (e) (6), and by the department as "participantdirected." 
3

ensuring that the value of his budget was "equivalent to the 

amount the department would have spent" if it had provided 

services to D.F. under the traditional model, as required by 

G. L. c. 19B, § 19 (e) (6). D.F. raised those claims without 

success in administrative proceedings and then in his G. L. 

c. 30A, § 14, appeal to the Superior Court, where the judge

upheld the budget set by the department. He now appeals from 

that judgment. We conclude that the individual budget set by 

the department for D.F. was consistent with the statutory 

requirements. Thus, we affirm the judgment.4

Background. The controlling facts are not in dispute and 

are drawn from the administrative record. 

1. D.F.'s receipt of services under the traditional model. 

D.F. is an adult with autism who has obtained services from the 

department since 2012. Beginning in that year, D.F. received 

day program support services that were funded by the department

under the traditional model: the department directly paid 

D.F.'s service providers and then received partial reimbursement 

from Medicaid's home and community-based services waiver 

program. See G. L. c. 19B, § 18 (describing interagency funding 

of services to persons "with common needs for care and 

4 We acknowledge the amicus briefs of the Harvard Law School 

Project on Disability and the families of other self-directed 

program participants.
4

treatment"). In connection with those services, the department 

generated an individual support plan for D.F. which it updated 

annually. See 115 Code Mass. Regs. §§ 6.20 (2016), 6.21-6.25

(2012). For several years up to and including fiscal year 2019, 

D.F. attended a day program five days each week at 3L Place, 

Inc. (3L Place). The department paid 3L Place for those 

services and was partially reimbursed through Medicaid. Under 

the traditional model, the department's payments to 3L Place, 

and Medicaid's reimbursements to the department, were only for 

services that D.F. used; for days that D.F. did not attend, 3L 

Place was not paid. 

2. D.F.'s transition to receive services under the selfdirected model. In April 2019, D.F. notified the department

that he wanted to transition to the self-directed model. He and 

the department agreed to make the change effective for fiscal 

year 2020, beginning July 1, 2019. That spring, the department 

updated D.F.'s individual support plan for fiscal year 2020, 

setting forth information such as D.F.'s activities at 3L Place 

and his progress and goals and noting his upcoming transition to 

the self-directed model. 

In May 2019, the department approved a written plan of care 

(May 2019 plan of care) for D.F. for the upcoming fiscal year 

2020. The May 2019 plan of care was required for the department

to obtain Medicaid reimbursement under the home and community-
5

based waiver program. See 42 U.S.C. § 1396n(c)(1). As required 

by 42 C.F.R. §§ 441.300, 441.301(b), the May 2019 plan of care

stated that, based on an assessment of D.F.'s health and welfare 

needs, thirty hours per week of community-based day supports 

from 3L Place constituted services that were needed to prevent 

his institutionalization.

As of July 1, 2019, the programmatic structure of 3L Place 

changed from a traditional, community-based day program to a 

pilot program that was not reimbursable by Medicaid.5 Under the 

self-directed model, D.F. chose to attend 3L Place's education 

and training institute pilot program, which was not licensed or 

certified by the department, see G. L. c. 19B, § 15, and cost a 

higher hourly rate than the 3L Place day program he had attended

previously. Unlike the traditional model, under which the 

department paid 3L Place only for services that D.F. used, the 

self-directed model required the department to make D.F.'s

individual budget available to him to purchase services, 

supports, or goods. See G. L. c. 19B, § 19 (i). As a result,

under the self-directed model 3L Place could be paid for 

services on days that D.F. did not attend the pilot program.

5 From the record before us, it is not apparent whether the 

department was aware, when it approved the May 2019 plan of 

care, that the 3L Place pilot program that D.F. had chosen was 

not eligible for Medicaid reimbursement. 
6

Because D.F. chose the self-directed model for fiscal year 

2020, the real lives statute required the department to set an 

individual budget for him. See G. L. c. 19B, § 19 (e) (4). The 

department initially set the budget at $22,000, which was the 

amount of the department's contract with 3L Place for fiscal 

year 2019 under the traditional model. After a conference with 

D.F.'s guardian, the department adjusted the budget to take into 

account D.F.'s actual attendance at 3L Place during fiscal year 

2019. As a result, the department increased the budget to 

$24,516, which was the amount the department had spent on D.F.'s 

services for fiscal year 2019. Because the pilot program was

more expensive than the program that D.F. had attended under the 

traditional model, his individual budget set by the department 

covered his attendance at the 3L Place pilot program for only 

two days per week.

D.F. sought a fair hearing, contending that his individual 

budget should be set to reflect the thirty hours per week of day 

supports set forth in the May 2019 plan of care. D.F. argued 

that, computed at the $17.24 hourly rate that the department had 

been paying 3L Place under the traditional model, multiplied by 

fifty weeks per year, that amounted to $25,860 -- i.e., $1,344 

more than the individual budget set by the department. He 

contended that his "assessed needs" for the purposes of the real 

lives statute, G. L. c. 19B, § 19 (a), were thirty hours per 
7

week in a day program, as reflected in the May 2019 plan of 

care, and the department's basing his fiscal year 2020 budget on 

his "utilization" -- the value of the services he had actually 

used during fiscal year 2019 -- did not comply with the real 

lives statute. 

Following a hearing, a department hearing officer made 

findings of fact and proposed conclusions of law, recommending

that the commissioner of the department uphold her decision. 

The hearing officer found unpersuasive D.F.'s contention that

the May 2019 plan of care for Medicaid reimbursement set forth

his assessed needs, or that it was relevant to setting his 

individual budget under the self-directed model, because the 3L 

Place pilot program that he chose to attend would not be 

reimbursed by Medicaid. The hearing officer concluded that 

"while the statute provides individuals the ability to choose a 

more expensive service, the statute does not impose the 

additional financial burden on the Commonwealth." The hearing 

officer also concluded that "the [d]epartment's consideration 

and incorporation of [D.F.]'s prior utilization of his 

traditional day program supports in fiscal year 2019 is 

consistent with a rational interpretation of the statute." The 

commissioner issued a final decision on June 24, 2020, adopting 

the hearing officer's findings and recommended decision.
8

On appeal to the Superior Court pursuant to G. L. c. 30A, 

§ 14, the parties filed cross motions for judgment on the 

pleadings. A judge allowed the department's motion and denied 

D.F.'s motion. For essentially the reasons articulated by the 

hearing officer and adopted by the commissioner, the judge 

concluded that the May 2019 plan of care was not relevant to the 

department's setting D.F.'s individual budget for fiscal year 

2020 under the self-directed model. Moreover, the judge 

concluded that the real lives statute did not preclude the 

department from basing D.F.'s individual budget for fiscal year 

2020 under the self-directed model on the amount that the 

department had spent during fiscal year 2019 to pay for D.F.'s

services under the traditional model. The judge reasoned that 

"[t]he conclusion that what has met one's needs in the 

immediately preceding year will meet one's needs in the upcoming 

year is logical and fair, not arbitrary and capricious." 

Moreover, the judge noted that, as D.F. has experienced in the 

past, "[the department] will increase its funding when a 

participant uses more services than planned, within his assessed 

needs." Accordingly, the judge concluded that D.F. "does not 

identify how, if at all, [the department's] budget for [fiscal 

year 2020] did not meet his assessed needs. Without evidence 

that [the department's] calculation did not, actually, fail to 
9

provide for his own assessed needs, [D.F.] cannot meet his 

burden of proof in this matter."

Discussion. 1. Standard of review. "Appellate review 

under G. L. c. 30A, § 14, is limited to determining whether the 

agency's decision was unsupported by substantial evidence, 

arbitrary and capricious, or otherwise based on an error of law"

(citation omitted). Burke v. Board of Appeal on Motor Vehicle 

Liab. Policies & Bonds, 90 Mass. App. Ct. 203, 205 (2016). 

"This standard of review is highly deferential to the agency on 

questions of fact and reasonable inferences drawn therefrom." 

Brookline v. Alston, 487 Mass. 278, 299 (2021) (Alston), quoting 

Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 

(1992). D.F., as appellant, bears the burden of proving that 

the administrative determination was invalid. See Forman v. 

Director of the Office of Medicaid, 79 Mass. App. Ct. 218, 221 

(2011). In the context of this G. L. c. 30A, § 14, appeal, D.F. 

was "required to show that [his] substantial rights may have 

been prejudiced" by the department's actions. M.D. v. 

Department of Developmental Servs., 83 Mass. App. Ct. 463, 471

(2013). 

D.F. raises issues of statutory construction of the real 

lives statute. "Questions of statutory interpretation . . . are 

questions of law and thus are reviewed de novo." DiMasi v. 

Secretary of the Commonwealth, 491 Mass. 186, 191 (2023). We 
10

give "substantial deference" to a reasonable interpretation of a 

statute that is made by the administrative agency charged with 

its enforcement (citation omitted). Id. "We do not interpret 

regulatory statutes in a manner that imposes procedural 

requirements on an agency that are not clearly mandated by the 

statutory language." Molly A. v. Commissioner of the Dep't of 

Mental Retardation, 69 Mass. App. Ct. 267, 281 (2007). However, 

"[a]n incorrect interpretation of a statute by an administrative 

agency . . . is not entitled to deference" (citation omitted). 

DiMasi, supra. 

A fundamental tenet of statutory construction is that the 

language of the statute "should be given effect consistent with 

its plain meaning and in light of the aim of the Legislature 

unless to do so would achieve an illogical result" (citation 

omitted). DiMasi, 491 Mass. at 191. "Ordinarily, where the 

language of a statute is plain and unambiguous, it is conclusive 

as to legislative intent (citation omitted)." City Council of 

Springfield v. Mayor of Springfield, 489 Mass. 184, 187 (2022). 

However, where statutory language is ambiguous, "familiar 

principles of statutory construction guide our interpretation" 

(citation omitted). Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 

(2022). In such circumstances, we may ascertain the intent of 

the Legislature from the language of the statute, "considered in 

connection with the cause of its enactment, the mischief or 
11

imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers may be 

effectuated" (citation omitted). Id. at 362-363.

2. The real lives statute. In considering an appeal based 

upon issues of statutory interpretation, we set out the terms of 

the statute at issue in "some detail." J.W. v. Department of 

Developmental Servs., 86 Mass. App. Ct. 374, 376 (2014). The 

real lives statute requires the department to promulgate 

regulations implementing it, G. L. c. 19B, § 19 (n), but the 

department has yet to do so.6 Absent any regulatory guidance on 

the process for setting an individual budget under the selfdirected model, our focus is on the language of the statute.

The real lives statute requires the department to

"facilitate and assist in the preparation of a person-centered 

plan, individual support plan and individual budget for each 

participant." G. L. c. 19B, § 19 (e) (1). The statute then 

defines each of those three documents. First, a "personcentered plan" is "a plan of service for a participant who 

elects to participate in self-determination." G. L. c. 19B, 

§ 19 (a). Although the hearing officer equated a personcentered plan with an individual support plan, the statute 

6 During and after oral argument, the parties informed us 

that regulations have been drafted and are in the public comment 

stage.
12

separately defines the two terms and provides that, once 

created, the person-centered plan is to be incorporated into the 

individual support plan. G. L. c. 19B, § 19 (a).

Second, the real lives statute defines an "individual 

support plan" as meaning the same as in the existing regulations 

applicable under the traditional model. G. L. c. 19B, § 19 (a), 

citing 115 Code Mass. Regs. § 6.20. As in effect at the time of 

D.F.'s transition to the self-directed model, those regulations 

described the process for generating an individual support plan, 

and directed that it be developed and updated annually by a team 

that included the developmentally disabled person and his or her 

guardian, as well as employees of the department. See 115 Code 

Mass. Regs. §§ 6.20-6.25. 

Third, as discussed in more detail below, an "individual 

budget" is "an allocation of federal and state funds based upon 

the participant's assessed needs." G. L. c. 19B, § 19 (a). As 

to the spending of the money in the budget, "[t]he amount of the 

individual budget shall be available to the participant each 

year for the purchase of self-determination services, supports 

or goods." G. L. c. 19B, § 19 (i). The department may 

recalculate an individual budget based on the needs of the 

participant, or adjust it if the participant does not use all 

funds in the budget within the designated year. See id.
13

3. Individual budget. D.F. contends that the department 

violated the statute by setting his individual budget for fiscal 

year 2020 without adequately considering his "assessed needs," 

as that term is used in the definition of individual budget in 

G. L. c. 19B, § 19 (a). He also argues that in setting his 

individual budget for fiscal year 2020, the department gave 

undue weight to his utilization of services in the previous 

year. Finally, D.F. argues that the department violated G. L. 

c. 19B, § 19 (e) (6), by not setting his individual budget so 

that its value was "equivalent" to the amount the department 

would have spent if he had continued to receive services under 

the traditional model. 

a. Based on assessed needs. D.F. argues that because the 

budget set by the department fell short of the amount projected 

in his May 2019 plan of care, it was not based on his "assessed 

needs" as that phrase is used in the real lives statute, G. L. 

c. 19B, § 19 (a). Section 19 (a) defines an "individual budget" 

as 

"an allocation of federal and state funds based upon the 

participant's assessed needs, as determined by the 

department in consultation with the participant, the 

participant's individual support plan team and chosen 

planning team, used to facilitate self-determination and to 

purchase services, supports or goods identified or 

referenced in the person-centered plan" (emphasis added). 

D.F. notes that the May 2019 plan of care form contained 

the following preprinted language:
14

"This Plan of Care is prepared to satisfy one of the 

conditions of the Commonwealth to receive federal 

reimbursement under the Massachusetts [home and communitybased services] [w]aiver for the Department of 

Developmental Services. [Department] waiver services 

identified in . . . this Plan of Care are based on an 

assessment of the individual's health and welfare needs and 

constitute services that are needed to prevent 

institutionalization" (emphases added).

Because of the similarity between the words emphasized above and 

the phrase "assessed needs" in the definition of individual 

budget in the real lives statute, D.F. contends that his 

assessed needs for the purposes of that statute were what was 

set forth in his May 2019 plan of care: thirty hours per week 

of community-based day supports.7 The department counters that 

D.F.'s assessed needs for the purposes of the real lives statute 

were based on D.F.'s initial assessment in 2012, updated 

annually in his individual support plans, and those assessed 

needs were for community-based day supports.

The real lives statute does not define "assessed needs." 

We note that those words come immediately after the phrase "an 

allocation of federal and state funds." G. L. c. 19B, § 19 (a). 

We interpret that to mean that the Legislature intended that the 

7 D.F. argues that the individual budget set by the 

department fell $1,344 short of the amount calculated from the 

number of hours and the hourly rate set forth in his May 2019 

plan of care. He does not argue that the phrase "based upon the 

participant's assessed needs" in the definition of an individual 

budget, G. L. c. 19B, § 19 (a), meant that the budget was 

required to satisfy or fulfill all of his assessed needs. Thus 

we do not reach that issue. 
15

assessed needs on which the budget was based were those that met 

both Federal and State funding requirements. Indeed, § 19 (j) 

of the real lives statute provides that "[t]he selfdetermination option established under this section shall be 

contingent upon federal financial participation," and requires 

the department to promulgate regulations that "seek to maximize 

federal financial participation in, or funding or reimbursement 

for, self-determination." G. L. c. 19B, § 19 (j).8 

We also read the definition of an individual budget in 

conjunction with two sections of the statute about setting the 

budget. First, G. L. c. 19B, § 19 (e) (4), requires the 

department to "set individual budgets annually in a fair, 

equitable and transparent manner in consultation with the 

participant and the participant's individual support plan." 

That requirement that the department consult the participant's 

individual support plan tends to show that the Legislature 

intended that a participant's assessed needs were to be 

established after considering the information set forth in the 

individual support plan.9 Here, the hearing officer found that 

8 The department does not argue that because D.F. chose a 

program that was ineligible for Medicaid reimbursement, G. L. 

c. 19B, § 19 (j), precluded him from using the self-directed 

model. Thus we do not reach that issue.

9 As mentioned above, G. L. c. 19B, § 19 (a), defines an 

individual support plan by reference to the preexisting 

regulation, 115 Code Mass. Regs. § 6.20. That regulation 
16

D.F. "did not offer evidence of an assessed need that the 

[department]-proposed self-directed budget fails to meet." We 

accord substantial deference to that factual finding. See 

Alston, 487 Mass. at 299.

Second, G. L. c. 19B, § 19 (i), provides that "[t]he 

department, in consultation with the participant and the 

participant's chosen planning team, shall determine the initial 

and any revised individual budget for the participant," and 

"[a]n individual budget may be recalculated by the department 

based on the needs of the participant." That the department 

"may" recalculate an individual budget based on the 

participant's actual "needs" cuts against D.F.'s argument that 

we should read a mandate into the phrase "based upon the 

participant's assessed needs" in the definition of an individual 

budget, G. L. c. 19B, § 19 (a). See Perez v. Department of 

State Police, 491 Mass. 474, 483 (2023).

To support his argument that his "assessed needs" for the 

purposes of his individual budget should be what was set forth 

in his May 2019 plan of care, D.F. points to the Federal 

regulation about modification of a Medicaid plan of care, 42 

defines "individual support planning" as "an on-going process of 

establishing goals . . . that may be related to the individual's 

vision statement . . . and of identifying supports and 

strategies that will promote achievement of those goals." 115 

Code Mass. Regs. § 6.20(2)(b). 
17

C.F.R. § 441.301(c)(2)(xiii)(A), which requires 

"[d]ocument[ation]" of a "specific and individualized assessed 

need" in order for the modification to be eligible for Medicaid 

reimbursement.10 He maintains that because the department 

approved his May 2019 plan of care which documented his

"specific and individualized assessed need" under that Federal 

regulation, that plan of care was also relevant to his "assessed 

needs" within the definition of an individual budget in G. L. 

c. 19B, § 19 (a). The argument is unavailing, for two reasons. 

First, the real lives statute does not mention the Medicaid 

plan of care or the Federal statute and regulation governing it. 

See 42 U.S.C. § 1396n(c)(1); 42 C.F.R. § 441.301(b). Instead, 

as discussed above, the Legislature referred to the individual 

support plan as defined in 115 Code Mass. Regs. § 6.20. Based 

on that regulation, and as mentioned above, D.F.'s individual 

support plan for fiscal year 2020 set forth information such as 

his activities in his day program and his progress and goals. 

It did not include projections for the number of hours he would 

spend in that program or the cost. Where the real lives statute 

requires the department to set the individual budget in 

10 For reasons not apparent on this record, in fiscal year 

2020 the 3L Place pilot program was not eligible for Medicaid 

reimbursement. In those circumstances, we cannot assume that 

the pilot program would have met a "specific and individualized 

assessed need" of D.F. within the meaning of 42 C.F.R. 

§ 441.301(c)(2)(xiii)(A).
18

consultation with the individual support plan, G. L. c. 19B, 

§ 19 (e) (4), we will not inject into the statute a requirement 

that the department also consider the Medicaid plan of care. 

"We do not read into the statute a provision which the 

Legislature did not see fit to put there, nor add words that the 

Legislature had an option to, but chose not to include." 

Commissioner of Correction v. Superior Court Dep't of the Trial 

Court for the County of Worcester, 446 Mass. 123, 126 (2006).

Second, because Medicaid reimbursed the department only for 

services that D.F. actually used, the May 2019 plan of care did 

not establish a budget. Rather, it established a maximum amount 

of services for which Medicaid would reimburse the department: 

thirty hours per week of day support services. The hearing 

officer credited the testimony of the department's regional 

director that in her thirty-nine years working for the 

department, no participant had ever utilized the maximum amount 

allocated in a Medicaid plan of care, typically because of 

issues such as vacation or illness. We defer to that 

credibility finding. See Alston, 487 Mass. at 299. 

To the extent that the meaning of the words "based upon the 

participant's assessed needs" in G. L. c. 19B, § 19 (a), could 

be considered ambiguous, we look to the legislative history of 

the statute. See Crossing Over, Inc. v. Fitchburg, 98 Mass. 

App. Ct. 822, 832 (2020). A prior version of the bill would 
19

have defined an "individual budget" as "a dollar amount for 

goods, services and supports specified in the person-centered 

plan that is under the control and direction of the individual." 

2013 House Doc. No. 4237. That bill was referred to the House 

Committee on Ways and Means, which recommended amendments. See 

2014 House J. 1735. Ultimately the definition of an individual 

budget was amended to the phrasing at issue here. Additional

amendments included the language that became G. L. c. 19B, 

§ 19 (j), mentioned above, which makes self-determination 

contingent on Federal financial participation and requires the 

department to maximize Federal funding for individuals who 

choose that model. The Legislature's focus on controlling the 

costs of self-determination in enacting the real lives statute, 

including in the final language defining an individual budget, 

cuts against the broad interpretation of "assessed needs" that 

D.F. proposes. 

We note that D.F. does not contend that unusual 

circumstances caused him to miss attending the 3L Place day 

program in fiscal year 2019, or that if he had continued in a 

traditional program in fiscal year 2020, he would have attended 

it for thirty hours per week throughout that year. If illness, 

unavailability of services, significant increases in costs, or 

other unusual issues had rendered what the department spent in 

fiscal year 2019 a poor comparison, the department would have 
20

had to take those factors into consideration when setting D.F.'s 

individual budget for fiscal year 2020. We do agree that 

looking only at what was spent, without considering any 

extraneous factors, would not do justice to the intent of the 

statute. 

b. Utilization. D.F. also argues that the department 

improperly considered, or at least gave undue weight to, his 

utilization of services in fiscal year 2019 as an indicator of 

his assessed needs for fiscal year 2020. The hearing officer 

interpreted the term "utilization" to refer to "an analysis of 

the total services and supports delivered or rendered to [D.F.] 

at his traditional day program." We cannot agree with D.F.'s 

premise that considering his actual utilization of services 

during the prior year is not permitted by the real lives 

statute, or divorces his individual budget from his assessed 

needs. Indeed, G. L. c. 19B, § 19 (i), anticipates that the 

department will consider a participant's utilization of services 

in setting an individual budget. That section provides: "Funds 

not spent by the annual individual budget shall revert back to 

the department. The department shall consider adjusting a 

participant's individual budget when a participant does not 

utilize all funds in the participant's individual budget within 

the designated year." G. L. c. 19B, § 19 (i). For those 

reasons, we agree with the Superior Court judge that the 
21

department's considering the number of hours that D.F. actually 

used in fiscal year 2019 when setting his individual budget for 

2020 was "logical and fair, not arbitrary and capricious."

c. Value equivalent to amount department would have spent 

for services under traditional model. D.F. also argues that the 

individual budget that the department set for him under the 

self-directed model was not "equivalent" to what it would have 

spent under the traditional model, as required by the real lives 

statute, G. L. c. 19B, § 19 (e) (6). That section requires that 

the department 

"ensure that the value of a participant's individual budget 

is equivalent to the amount the department would have spent

providing services, supports or goods to the participant if 

the participant had chosen to receive services, supports 

and goods through a traditional service model supported by 

the department" (emphases added). 

G. L. c. 19B, § 19 (e) (6). 

The parties focus on the word "equivalent" in that section. 

D.F. contends that it means "equal in value or amount." See 

Commonwealth v. Ray, 435 Mass. 249, 252 (2001). The department 

contends that its meaning is ambiguous, and it could mean either 

equal in value or equal in effect. Cf. Edwards, petitioner, 464 

Mass. 454, 462 (2013) (under G. L. c. 261, § 27F, when indigent 

criminal defendant seeks funds for expert services, judge may 

order alternative, lower cost services that are "substantially 

equivalent"). 
22

We focus instead on the words "would have spent providing 

services." D.F. argues that his fiscal year 2020 individual 

budget under the self-directed model should equal the amount of 

money the department would have paid if it had provided all of 

the services listed in the May 2019 plan of care, which totaled 

$25,860. We reject D.F.'s argument that "would have spent" 

means that his individual budget should have been set at what 

the department and Medicaid would have been willing to spend if 

he had maximized his services projected for fiscal year 2020. 

We agree with the department that, even if we were to accept 

D.F.'s definition of the word "equivalent," the department met 

that definition here by setting his fiscal year 2020 individual 

budget at an amount precisely equal to the amount it had spent 

for D.F.'s services in fiscal year 2019. 

Because under the traditional model the department paid for 

only those services or programs that D.F. actually used, but 

under the self-directed model D.F. may choose to spend his 

individual budget on a program and then not attend it on some

days, a precise comparison of the funding under the two models 

may not be possible. As the hearing officer put it, "To set 

[D.F.]'s budget based on the maximum utilization identified in 

his defunct [plan of care] would not be fair to individuals 

using the traditional fee-for-service modality, or to persons 

who don't have (or who have never had) a [plan of care]." We 
23

agree. In setting D.F.'s individual budget, the real lives 

statute allowed the department to cap the budget at what it 

would have spent for services delivered under the traditional 

model. See G. L. c. 19B, § 19 (e) (6). As noted by the hearing 

officer, the statute does not require the department to pay for 

a more expensive program.

Indeed, in determining whether the value of D.F.'s 

individual budget is "equivalent" to what the department would 

have spent providing him services under a traditional model, 

G. L. c. 19B, § 19 (e) (6), it would be foolhardy for the 

department to ignore what it in fact spent in the prior year for 

services under the traditional model. D.F.'s actual use of 

services in fiscal year 2019 did not equal the thirty hours per 

week projected in his plan of care during that year, and D.F. 

did not show a likelihood that this would change in fiscal year 

2020. The department did not have to ignore that fact in 

setting D.F.'s individual budget.

Conclusion. We conclude that D.F. has not met his burden 

to show that the department's administrative determination in 

setting his individual budget for fiscal year 2020 failed to 

comply with the real lives statute. See Forman, 79 Mass. App. 

Ct. at 221. 

Judgment affirmed.