2008-118, PETITION OF GRETCHEN PARKER

Administrative Appeals Unit of the New Hampshire Department of Health and writ of certiorari, see Sup. Ct. R. 11, challenging the decision of the BRODERICK, C.J. The petitioner, Gretchen Parker, filed a petition for

Jonathan P. Baird on the brief), for Donna Greenwood, as amicus curiae. New Hampshire Legal Assistance, of Claremont (Bennett B. Mortell and

Services, as amicus curiae. brief and orally), for the New Hampshire Department of Health and Human Kelly A. Ayotte, attorney general (Rebecca L. Woodard, attorney, on the

John D. MacIntosh, of Concord, by brief and orally, for the respondent.

to press. Errors may be reported by E-mail at the following address: Mallinson on the brief, and Ms. Messer orally), for the petitioner. Disabilities Rights Center, Inc., of Concord (Amy B. Messer and Adrienne

(New Hampshire Department of Health and Human Services) PETITION OF GRETCHEN PARKER page is: http://www.courts.state.nh.us/supreme.

No. 2008-118 editorial errors in order that corrections may be made before the opinion goes Original Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Merrimack. home, Parker and Miller attended the same day program at Easter Seals in for assistance. Eventually, he calmed down and went home to the Cavalli

a “significant and positive relationship.” In addition to residing in the same one staff member. The police and emergency medical technicians were called then reentered the building, where he destroyed property and punched at least angrier and began throwing rocks at the building and at a passing car. He

pursuant to a contract between the Area Agency and Easter Seals. at the Cavalli home under the care of Jennifer Cavalli’s husband, Vincent, Vincent and Jennifer Cavalli have been described as a “family unit,” who share

anything” in particular. Patnode attempted to talk to him, but he became

guardianship for many years. Since 2006 he has received residential services friends and have a healthy sibling-type relationship. Parker, Miller, and contract for this living arrangement. By all accounts, Parker and Miller are Cavalli home with Miller and in July, the Area Agency approved the services of Easter Seals, observed Miller throwing rocks but “not at anybody or session ended, he left the building. Outside, Lea Patnode, the regional director

(hereinafter Rule 503.08(c)(4)). We reverse. Hampshire Administrative Rules, He-M 503.08(c)(4) (effective January 1999) four-year-old man with developmental disabilities who has been under legal

her right to make her own decisions. She elected to resume living at the session because of comments made by other participants. Once the therapy On October 25, 2006, Miller became frustrated during a group therapy

Richard Miller, would exceed the “bounds of reasonable risks” under New Jennifer Cavalli to provide residential care at her home. Miller is a twenty- Institute of Professional Practice (IPP). IPP, in turn, subcontracted with including providing for her residential placement under a contract with the month, however, she succeeded in terminating her guardianship and regained different residential placement at the request of her guardian. The following been living there for about one month. About two months later, she moved to a When Miller moved into the Cavalli home in March 2006, Parker had

that Parker’s continued residence at the Cavalli home with the intervenor, decision of the respondent, the Area Agency of Greater Nashua (Area Agency), Administrative Appeals Unit (AAU) determined that the evidence supported the services funded by the Area Agency. The Area Agency coordinates her services, twenty-eight-year-old woman with developmental disabilities who receives state The following uncontested facts are drawn from the record. Parker is a

contract providing for her care at the home of Jennifer Cavalli. The Human Services that affirmed the cancellation of the residential services p. 3 Rule 503.08(c)(4).

their shared residence would exceed “the bounds of reasonable risks” under

process of any kind. Rather, pursuant to its investigation, it concluded that 2006 decision was not based upon an evidentiary hearing or adjudicatory Miller living in the same household as Parker. The Area Agency’s November

unsustainable exercise of discretion or has acted arbitrarily or capriciously. respect to jurisdiction, authority or observance of the law or has engaged in an Parker’s appeal is limited to determining whether the AAU acted illegally with

terminating the contract with Jennifer Cavalli was the perceived risk posed by

“reasonable risks” under Rule 503.08(c)(4) controlled. Our certiorari review of

overnight time at the Cavalli home. The Area Agency’s sole basis for The Area Agency, however, occasionally permitted them to share the same Cavalli home while alternating overnight accommodations at another location. rule or statutory scheme as a whole, and not piecemeal.”

the Area Agency to her when it ruled that the Area Agency’s determination of

158 N.H. 76, 78 (2008) (citation omitted). Although we accord deference to an

Vector Mktg. Corp. v. N.H. Dep’t of Revenue Admin., 156 N.H. 781, 783 (2008). proof; and (3) the AAU erred by improperly shifting the burden of proof from rules, and we use the same principles of construction when interpreting both. This case requires us to interpret both state law and administrative

arguments negates our need to address her third argument. Servs., 150 N.H. 177, 178 (2003). Our resolution of Parker’s first two Petition of Kilton, 156 N.H. 632, 637 (2007); see also Petition of Moore Ctr.

petition for writ of certiorari followed.

she wished to remain where she was. The Area Agency agreed to an other residential placements were available for her, but she made it clear that services contract with Jennifer Cavalli. The Area Agency notified Parker that the Area Agency failed to present sufficient evidence to carry its burden of consider all of the evidence before it and failing to conduct a de novo review; (2) Parker makes three arguments on appeal: (1) the AAU erred by failing to

Area Agency’s decision. Parker’s motion for reconsideration was denied. Her Parker appealed to the AAU, and, after a hearing, the AAU upheld the

In November 2006, it notified IPP that it was terminating the residential

safety could not be assured if she continued to live in the same home as Miller. The Area Agency investigated the incident and determined that Parker’s

threatened, or involved in the incident. home, along with Parker, without further incident. Parker was not harmed, herein remain largely unchanged in substance.

p. 4 intervention.”

AAU. We further note that the amended versions of the rules that we cite

living and programs to support individuals and families, beginning with early to determine, among other things, the nature of services to be provided to an The area agency is required to conduct a comprehensive screening evaluation

case. Accordingly, we consider the versions of the rules relied upon by the between the prior and amended rules that would affect the outcome of this decision in this regard, nor do they argue that any meaningful difference exists 4

disabilities and their families be provided services that emphasize community

RSA 171-A:6, I (Supp. 2008) (setting forth manner of applying for services).

RSA 126-A:4, I (2005); rules in effect as of November 2006. The parties do not challenge the AAU’s protect the health, safety, and well-being of the citizens of New Hampshire.” and training of developmentally disabled persons.” RSA 171-A:4 (2002). coordinated system of health and human services as needed to promote and otherwise noted. Rules, Part He-C 200 (effective April 2007) and Part He-M 500 (effective January 1999), unless All administrative rules cited hereinafter fall within the following: New Hampshire Administrative 1

the legislature: “The policy of this state is that persons with developmental developmentally disabled persons.” RSA 171-A:1 (Supp. 2008). As declared by implement and coordinate a comprehensive service delivery system for (defining developmental disability); RSA 171-A:2, I-b (defining area agency); area agency within their geographic area. See RSA 171-A:2, V (Supp. 2008) Persons with developmental disabilities may apply for a service with an

rules upon which the Area Agency relied, the AAU applied the administrative state service delivery system for the care, habilitation, rehabilitation, treatment respect to New Hampshire Administrative Rules, He-M 503, the substantive DHHS rules. DHHS is charged with providing “a comprehensive and Rules, He-C 200, governing practice and procedure, as amended in 2007. With Id. In particular, the department is required to “maintain a

Among its various responsibilities, the department must “establish, maintain,

afforded to persons with developmental disabilities under state law and the 2006. The AAU applied the relevant portions of New Hampshire Administrative We first provide a framework of the relevant rights and procedures

terminated the residential care contract with Jennifer Cavalli in November rules at issue in this case, have been amended since the Area Agency New Hampshire Administrative Rules, Parts He-C 200 and He-M 503, the

Our review of the AAU’s decision is de novo. See Morton, 158 N.H. at 76. regulation and with the purpose which the regulation is intended to serve. Id. interpretation to determine if it is consistent with the language of the Vector Mktg. Corp., 156 N.H. at 783. We still must examine the agency’s agency’s interpretation of its own regulations, that deference is not total. grounds for the [p]etitioner to ask the area agency to enter into a new

p. 5 concerning

evidence arising subsequent to the Area Agency’s decision “might have been and to decide

November 2006 decision. It further contends that Parker’s argument

decided to terminate the contract in November 2006. services. tribunal by considering only the evidence that existed when the Area Agency 503.08(c)(4). They contend that the AAU erroneously acted as an appellate

the time of the Area Agency’s November 2006 decision. According to DHHS, before it that was in existence at the time of the June 2007 evidentiary hearing amicus curiae, argues that the AAU properly reviewed only evidence existing at

de novo review was not preserved for appellate review. DHHS, as

evidence before it, including evidence that arose after the Area Agency’s The Area Agency contends that the AAU in fact weighed all of the

Administrative Rules, Part He-M 500, the rules governing developmental He-C 200, the rules of practice and procedure, and New Hampshire home with Miller exceeded the “bounds of reasonable risks” under Rule with statutory mandates appear at New Hampshire Administrative Rules, Part de novo whether Parker’s continued placement at the Cavalli

Greenwood argue that the AAU was required to consider all of the evidence procedures, including adjudicative proceedings, evidence before it and failing to conduct a de novo review. Parker and amicus Parker argues that the AAU erred by failing to consider all of the

(2007). The rules relevant to the matter at hand that DHHS adopted to comply has crafted rights for persons who choose to participate in the programs, see RSA 541-A:16, I(b)(2) (Supp. 2008), and is also required to adopt rules for formal and informal process for individuals who apply for or receive services, RSA 126-A:5, VIII provide programs or services. RSA 171-A:18, I, II (2002). (2002). Additionally, DHHS is statutorily required to provide an appeals disabilities and may enter into contracts with individuals or organizations to (2002); RSA 171-A:9, I (2002); RSA 171-A:12, I (2002); RSA 171-A:18, IV rules to implement its various service responsibilities, see, e.g., RSA 171-A:3 established in this chapter,” see RSA 171-A:14, V, and has required it to adopt and integrity of clients, including specific procedures to protect the rights with adopting rules “relative to the protection of the rights, dignity, autonomy RSA 171-A:14 (2002). The legislature has charged the commissioner of DHHS

service delivery system is voluntary, RSA 171-A:5, I (2002), and the legislature Participation by a person with developmental disabilities in the state

utilize funds to establish programs and services for persons with developmental individual. RSA 171-A: p. 6 6, II (Supp. 2008). Designated area agencies may discovered and sought to correct at some earlier time, but chose to ignore.

Agency’s November 200 p. 6 6 decision was erroneous. appeal). Therefore, the AAU’s role in this case was to review whether the Area

appeal. to advance her argument for

determine whether it contains error. persons with developmental disabilities regarding services. type tribunal and essentially disregarded evidence generated after November 7, review of the challenged decision. Under the rules, the appeal review must be indicated for the first time that it had limited its role to that of an appellate- However, in its order denying Parker’s motion for reconsideration, the AAU Parker correctly argues that the AAU was obligated to conduct a de novo

identify the specific department decision or action that forms the basis of the

See also N.H. Admin. Rules, He-C 203.03(b) (appealing party must

the validity of the department’s decision or action that forms the basis for the with severe disabilities). While Parker relied in part upon federal Medicaid law International Dictionary 1944 (unabridged 2002) (definition of “review”). It is

decision necessarily involves examining that action or decision itself to multitude of DHHS decisions and are not restricted to appeals brought by Rules, He-C 201.02(b) (emphasis added). Reviewing a department action or action in accordance with the provisions of RSA 12 p. 6 6-A:5, VIII.” N.H. Admin. adversely affected by a department decision or action to AAU order, it appears that the AAU considered all evidence that was before it. review that decision or Under the rules, an “appeal” is defined as “a request by a person

properly preserved for our review. state law and administrative rules.

He-W 507.05 (decisions affecting eligibility for medical assistance for children Admin. Rules, He-P 2150.29 (decisions concerning shellfish certificates); id.

Administrative Rules, He-C 200. Notably, these procedural rules govern a appeal was governed by the procedural rules prescribed in New Hampshire We next review the AAU’s role in deciding Parker’s appeal. Parker’s in November 200 p. 6 6, as well as evidence later generated. From the face of the allowed evidence that was in existence at the time of the Area Agency’s decision preserve an issue for appellate review). At the June 2007 hearing, the AAU Accordingly, we conclude that Parker’s argument was timely raised and id. She objected to the limited review undertaken at the earliest opportunity.

must raise objection at earliest possible time in litigation process in order to preserved. See Fox v. Town of Greenland, 151 N.H. p. 6 600, 604 (2004) (party We first conclude that Parker’s argument concerning de novo review was

nature of the administrative appeals process.” agreement with Ms. Cavalli, but [was] not grounds to completely recast the applicable administrative rules indicate that a

p. 7 reasonable risks without deference to the Area Agency’s original decision.

statutorily prescribed procedures. department decision was made).

a full and true disclosure of the facts.” RSA 541-A:33, IV (2007). Finally, the

regarding whether Parker’s residential placement was within the bounds of

to adopt rules governing “adjudicative proceedings” that conform with certain of labor is limited to determining employee’s condition as it existed when (1998) (compensation appeals board’s de novo review of decision of department understanding of de novo review); cf. Appeal of Staniels, 142 N.H. 794, 796 parties must have the opportunity to “conduct cross-examinations required for Doe v. U.S., 821 F.2d 694, 697-98 (D.C. Cir. 1987) (defining ordinary testimony and documentary evidence, RSA 541-A:33, II, III (2007). Also, See “present evidence,” RSA 541-A:31, IV (2007), which may include witness evidentiary hearing, independently review the evidence and make a decision a full evidentiary proceeding with Accordingly, we hold that the AAU was obligated to conduct a full the appeal process involve a and standard of proof); id. 203.18 (admission of evidence). Rules, He-C 203.08 (prehearing exchange of information); id. 203.14 (burden Under RSA 541-A:16, I(b)(2) (2007), each agency, including DHHS, is required law should be undertaken during the appeals process. See, e.g., N.H. Admin. RSA 541-A:16, I, and RSA 541-A:31 through RSA 541-A:36, respectively. de novo assessment of fact and the Administrative Procedure Act to inform their intent and meaning; namely, conduct a plainly indicates that during the appeals process, the hearings officer must the matter on appeal,” RSA 126-A:5, VIII(a) (Supp. 2008). This language

541-A:31-:36 (2007). For example, the parties must have the opportunity to

“adjudicative proceedings”). The statutory procedures bear all the hallmarks of initial decision was rendered. Requiring determinations of fact anticipates that See RSA 541-A:1, I (2007) (defining decision was sustainable based upon the record in existence at the time the appeal had it intended that the AAU limit its review to whether the appealed

He-C 201.02(i) (definition of “hearing”). Both rules refer to specific sections of See N.H. Admin. Rules, He-C 201.01 (“purpose” section); N.H. Admin. Rules, to choose either a hearing or an independent review “to determine the facts of presuppose a de novo review of the challenged department decision or action. The “purpose” section and definition of “hearing” under the rules also

would make little sense for the legislature to require determinations of fact on

de novo review of all the evidence and render factual findings. It

that such appeals process must provide an opportunity for an appealing party individual who is applying for or receiving services from the department, and requires that the DHHS commissioner establish an appeals process for any Admin. Rules, He-C 201.02(b). Among other things, that statutory provision conducted “in accordance with the provisions of RSA 126-A:5, VIII.” N.H. which is simply not persuasive.

p. 8 relies upon the least relevant evidence to make her case,

terminating the provider’s contract. [Parker’s] argument this case do not demonstrate that the Area Agency erred in The passage of time, new events, and changed opinions in

the hearing in accordance with He-C 203.08 and objects offered in evidence as exhibits and which were disclosed prior to

could not have played any role in the Area Agency’s decision.

Administrative Rules, He-C 203.18(c) provides that: “All documents, materials

explained its consideration of the evidence:

with Miller would exceed the bounds of reasonable risks. Conducting a AAU hearings officer “determines that such evidence, exhibits or arguments are documents not previously disclosed must be accepted into the record if the that did not exist on or before November 7, 2006, and which included in the record of the hearing decision. The least relevant evidence in this case is evidence.” (Emphasis added.) Even those and upon which the Area Agency could have based its shall, absent objection, be

full consideration of the issue before it. For instance, New Hampshire that the AAU accept and consider an expansive scope of evidence to allow for a independently determine this issue. Indeed, the administrative rules mandate January 2007. The AAU order denying Parker’s motion for reconsideration novo review required the AAU to fully consider all relevant evidence in order to

Area Agency made its decision, demonstrated that Parker’s continued residence circumstances, not the evidence, existing as of November 7, 2006, when the The issue before the AAU was, as noted above, whether the

This was error. evidence is the evidence that existed on November 7, 2006,

such as an opinion by a psychologist, Dr. Andrew Prokopis, that he rendered in reasonable risks. Evidence generated after November 2006 was also admitted, Parker’s continued residence with Miller would exceed the bounds of

Area Agency on November 7, 2006. The most relevant In this case, the focus is on the decision made by the

available to the Area Agency in November 2006 when it determined that The evidence admitted at the AAU hearing included information that was

the required de novo review. circumstances existing in November 2006; thus, it failed to properly conduct its decision in November 2006. The issue before the AAU was, rather, the its review to that evidence which existed at the time that the Area Agency made documents. We agree with Parker, however, that the AAU improperly limited from several witnesses, cross-examination and the admission of numerous In this case, the AAU conducted a full evidentiary hearing with testimony judgment : well balanced : SENSIBLE . . . . p. 9 faculty of reason : RATIONAL . . . b. possessing good sound reason : not extreme : not excessive . . . 2.a. having the

negligence context, reasonableness is objectively determined. circumstances,”

that it limited its role to that of an appeal tribunal. This was error. after the Area Agency rendered its decision in November 2006, we conclude reasonable risks. to continue to reside with Miller at the Cavalli home exceeded the bounds of circumstances existing in November 2006 demonstrate that Parker’s decision judgment : not conflicting with reason : not absurd : not Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 161 (1988). The notion

upon dictionary definitions for common understanding of terms). In the “Reasonable” means, in pertinent part: “[f]air, proper, or moderate under the Lambert v. Belknap County Convention, 157 N.H. 375, 380 (2008) (relying Webster’s Third New International Dictionary 1892 (unabridged ed. 2002). See

evidence less relevant based solely upon the fact that it came into existence

had the burden of proving by a preponderance of the evidence that the 1.a. being in agreement with right thinking or right

Black’s Law Dictionary 1293 (8th ed. 2004), and, further

administrative rules and, thus, we look to the plain meaning of its terms. The phrase “bounds of reasonable risks” is not defined within the

failed to carry its burden.

See N.H. Admin. Rules, He-C 203.14(f). We conclude that it

2006, the AAU was obligated to consider it. Because the AAU deemed some

Cavalli home would exceed the bounds of reasonable risks. The Area Agency present sufficient evidence that her continued residence with Miller at the We next consider Parker’s argument that the Area Agency failed to

Agency’s decision shed light on the circumstances existing as of November 7, Therefore, to the extent that the evidence generated after the Area

constricted by administrative record). 821 F.2d at 698 (trial court’s de novo review of administrative decision was not the employee’s medical condition at the time of the challenged decision); Doe, surgery which occurred after decision of hearings officer to determine de novo N.H. at 797 (compensation appeals board considered evidence of employee’s was generated by the Area Agency during its investigation. Cf. Staniels, 142 204.05(a). The AAU was not confined to relying upon only that evidence which Admin. Rules, He-C 203.18(d) (emphasis added); see also id. 203.21(a); id. necessary to a full consideration of the issues raised in the appeal.” N.H. service agreement”). Accordingly, to guide our analysis of whether sufficient

provider to deliver one or more of the services identified in the individual’s provision and monitoring of services

to make informed decisions, [and] self-determination”);

quality of life in a manner that is determined by the individual”);

involve exposure to some risk of harm. individual . . . may select any person, any agency, or another area agency as a of eligibility, the development of service agreements, the

(services environment “shall promote the person’s freedom of movement, ability govern the eligibility for services and the process of providing services is id. 503.08(d) (services designed to “promote the individual’s personal development and programs must be based, in part, upon: N.H. Admin. Rules, He-M 503.01 (emphasis added); see also id. 503.08(b) autonomy in decision-making. For instance, the provision of services and termination of such persons from these services. developmental disabilities, and the withdrawal or ability and decision-making authority of persons with

life, and reasonable persons commonly choose to engage in activities that to establish standards and procedures for the determination person would not accept the risk. Ultimately, risk of harm is part of everyday less, yet the magnitude of the possible harm is so significant that a reasonable RSA 171-A:1, I, V. Further, the purpose of the administrative rules which

developmental disabilities in a manner that respects independence and V. Services based on individual choice, satisfaction,

. . . .

administrative policies that require services be provided to persons with This concept of reasonable risk accords with the statutory and

be significant, but its magnitude may be so small that a reasonable person calculated on a continuum of sorts. On one hand, the likelihood of harm may v. Docusearch, 149 N.H. 148, 153 (2003). Thus, reasonable risk may be and the magnitude of the harm to which the person is exposed. See Remsburg of reasonable risk includes examining both the likelihood that harm will occur p. 11 October 2006, either in the Cavalli home or toward Parker.

Miller would engage in behavior similar to that exhibited at Easter Seals in

7, 2006, and he ultimately opined that there was a “very low probability” that

His testimony was reflective of the circumstances as they existed on November Cavalli home for more than one year without incident was “quite remarkable.” “extremely well,” and that Miller’s ability to live in a family situation at the

expose themselves to circumstances that involve some reasonable risk without

Miller well on the day of the incident, that Mr. Cavalli was able to handle Miller

making life decisions, persons with developmental disabilities may voluntarily

recommendation because he thought that the Easter Seals staff did not handle Miller’s troubled background, and explained that he had changed his initial with Mr. Cavalli, Parker, and Easter Seals staff. Dr. Prokopis is familiar with

The phrase “bounds of reasonable risks” implicitly recognizes that when to any risk at all. This is contrary to the plain meaning of Rule 503.08(c)(4). receiving funding when choosing to engage in activities that would expose them

his opinion after conducting several therapy sessions with Miller and meeting

Such a standard would prohibit persons with developmental disabilities from

Miller live in a single-person placement without a roommate, he later changed Easter Seals incident, Dr. Prokopis recommended to the Area Agency that be continued” with periodic review. While immediately after the October 2006

upon a guarantee of absolute safety, however, is too stringent a measure. guaranteed. Conditioning services for a person with developmental disabilities investigation indicates that everyone thought that Parker’s safety could not be

Miller has ever threatened Parker in any way or engaged in conduct at the unpredictable aggression. There is no evidence in the record, however, that that Miller’s history prior to living at the Cavalli home showed a potential for

Vincent and Jennifer Cavalli presented a “very low risk” to Parker and “should

and the Easter Seals staff at the time the Area Agency conducted its The evidence documenting the communications between the Area Agency

of conflict without Miller engaging in dangerous behavior. We acknowledge

unequivocally opined that the living arrangement between Parker, Miller and

occasion, Miller and Parker are able to respect each other’s boundaries in times

with persons with developmental disabilities and domestic violence, existed on November 7, 2006. Dr. Prokopis, who is a clinical psychologist with special training to work expose himself or herself to the measure of risk involved as the circumstances we examine whether a reasonable person would have voluntarily chosen to

sibling-type relationship. The evidence shows that while the two argued on By all accounts, Parker and Miller are good friends and share a healthy,

and Miller at the Cavalli home would exceed the “bounds of reasonable risks,” evidence was presented to demonstrate that a shared residence between Parker the Area Agency’s burden in this case.

p. 12 On this record, Raymond’s testimony, standing alone, is not sufficient to carry

share overnight time at the Cavalli home even since the October 2006 incident. “heightened risk.” Moreover, Raymond has permitted the two to occasionally the home and again share the residence with Miller because she perceived no

limits. that the autonomy of a person with developmental disabilities is not without present sufficient evidence to carry its burden of proof in this case, we reverse. at the Cavalli home exceeded the “bounds of reasonable risks.” We recognize Raymond acknowledged that even after Parker was briefly removed from the already living there and the Area Agency knew of Miller’s past history. Further, permitted Miller to reside at the Cavalli home in March 2006, Parker was decision is appealed, the AAU must conduct a

rules”); DALIANIS, DUGGAN and HICKS, JJ., concurred. acting in the best interest of the individual or in compliance with applicable

exceeds the “bounds of reasonable risks.” Because the Area Agency failed to 7, 2006, demonstrated that Parker’s decision to continue to reside with Miller a preponderance of the evidence that exposure to the particular risk at issue independently determine whether the Area Agency met its burden of proving by past aggression and behaviors. However, at the time the Area Agency first de novo review and individual”); RSA 171-A:18. However, when, as here, the Area Agency’s “is posing an immediate and serious threat to the health or safety of the id. 503.08(g) (area agency shall terminate agreement if service provider

terminate service agreement if “provider chosen by the individual . . . is not See, e.g., N.H. Admin. Rules, He-M 503.08(f) (area agency must

preponderance of the evidence that the circumstances existing as of November We conclude that the Area Agency failed as a matter of law to prove by a living arrangement would present a “significant risk” to Parker due to Miller’s residence would exceed the bounds of reasonable risk. She testified that the

would engage in similar behavior in the home environment or toward Parker. Easter Seals staff and the Area Agency opined that it was not likely that Miller

family services for the Area Agency, represents the sole evidence that a shared The testimony of Beth Raymond, the vice president of individual and

Ultimately, even after Miller’s aggressive outburst at Easter Seals, both the jeopardizing the funding for the particular services available to them.