ASSOCIATION FOR RETARDED CITIZENS CALIFORNIA ARC CALIFORNIA v. DEPARTMENT OF DEVELOPMENTAL SERVICES

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Court of Appeal, Third District, California.

ASSOCIATION FOR RETARDED CITIZENS—CALIFORNIA (ARC—CALIFORNIA), et al., Plaintiffs and Respondents, v. DEPARTMENT OF DEVELOPMENTAL SERVICES, et al., Defendants and Appellants.

Civ. 22578.

Decided: March 19, 1984

John K. Van De Kamp, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Anne S. Pressman and Henry Torres, Jr., Deputy Attys. Gen., for defendants and appellants. Jay-Allen Eisen, Felderstein, Rosenberg & McManus and David Rosenberg, Sacramento, John I. Meeker, San Francisco, Gilford M. Eastham, Sacramento and Paul Blake, Tustin, for plaintiffs and respondents.

Defendants, Department of Developmental Services, et al., appeal from an order entered in Sacramento County Superior Court granting a preliminary injunction.   Defendants issued a set of spending priorities governing expenditure of state funds provided to the 21 Regional Centers for the Developmentally Disabled (Regional Centers).   In the underlying action, plaintiffs, Association for Retarded Citizens, et al., challenged those spending priorities on constitutional, statutory, and administrative grounds.   The trial court issued a preliminary injunction which enjoined defendants from implementing or enforcing the spending priorities pending trial on the merits.

Defendants appeal, contending that (1) although the trial court decision was not a permanent injunction, determination of the merits of the underlying action is appropriate on appeal where the question presented to the trial court is solely one of law;  (2) purchase of services by Regional Centers under the Lanterman Developmental Disabilities Services Act (Welf. & Inst.Code, § 4500 et seq.;   hereafter the Lanterman Act) does not represent an entitlement and is limited by the level of legislative appropriation of funds;  (3) the priorities were properly issued pursuant to the 1982 Budget Act (Stats.1982, ch. 326) and the Lanterman Act;  (4) the priorities are not administrative regulations and are not subject to the Administrative Procedure Act;  (5) the priorities do not violate plaintiffs' constitutional rights to personal liberty;  and (6) the trial court order was an abuse of discretion.   We shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are the Association for Retarded Citizens—California, a nonprofit California corporation which advocates the interests of the mentally retarded of this state;  several regional associations which perform similar advocacy functions and provide services to the developmentally disabled;  two developmentally disabled individuals;  and California Association of Rehabilitation, an association of nonprofit corporations which provide services to the developmentally disabled.

Defendants are the California state Department of Developmental Services (hereafter Department) and its director, David E. Loberg, and the state Health and Welfare Agency and its secretary, Douglas X. Patino.

In the 1982 Budget Act the Legislature reduced the Regional Centers' proposed budget by $2.2 million for operations and $2.5 million for purchase of services.   In order to implement the budget reductions, the Budget Act directed the Department to establish spending priorities for operations and purchases of services.  (Stats.1982, ch. 326, p. 190.)   The priorities, “insofar as is possible, [were to] be consistent with the Lanterman Developmental Disabilities Services Act, and, when formally transmitted to regional centers by the Director of the Department of Developmental Services, [were to] govern the authorization for and expenditure of” the budgeted funds.  (Stats.1982, ch. 326, pp. 190–191.)

On October 14, 1982, the Department announced adoption of the required priorities, effective November 1, 1982, (hereafter October Priorities).   Regional Centers were requested to comment on the impact of implementing the priorities.   Several Regional Centers immediately began to implement service reductions in their programs.

As of November 8, 1982, the Department had received comments from 11 Regional Centers indicating that little savings would be realized by implementing the priorities.   This information prompted the drafting of new priorities (hereafter November Priorities), which were forwarded to Regional Centers on November 24, 1982.

On December 9, 1982, plaintiffs filed this action seeking to enjoin implementation of the October Priorities.   On December 10, 1982, the superior court issued a temporary restraining order restraining the Department from implementing the priorities to the extent that they authorize or cause reductions of needed services to any Regional Center clients.

On January 6, 1983, a hearing was held on the motion for preliminary injunction;  following the hearing the trial court enjoined the implementation of “the priority policies” 1 to the extent they required any reduction or termination of services.

On January 25, 1983, defendants filed a timely notice of appeal from the order issuing the preliminary injunction.

DISCUSSION

I

 The question presented is one of law, whether the Department's priorities are valid and enforceable.   No material fact issues are in dispute, and this court is in as good a position to determine the legal issue as the trial court would be after determination of this appeal;  determination of the merits of the underlying dispute is therefore appropriate.  (Ortiz v. Woods (1982) 129 Cal.App.3d 672, 676, 181 Cal.Rptr. 209, following North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 805, 168 Cal.Rptr. 95.)

II

 Defendants first contend that the Lanterman Act does not create an entitlement to Regional Center services and that the amount of available services is limited by the level of appropriated funds.   The point is well taken.

Since the Lanterman Act does not explicitly declare an entitlement to state-financed treatment services, we must ascertain what the Legislature intended.   In doing so “ ‘The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ”  (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733, 114 Cal.Rptr. 460, 523 P.2d 260, quoting Alford v. Pierno (1972) 27 Cal.App.3d 682, 688, 104 Cal.Rptr. 110;  see Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672;  Carlton Santee Corp. v. Padre Dam Mun. Water Dist. (1981) 120 Cal.App.3d 14, 25, 174 Cal.Rptr. 413.)   We first examine the Lanterman Act's declarations of rights and the responsibilities of the state found in Welfare and Institutions Code sections 4501 and 4502.2

Section 4501 begins by stating that “The State of California accepts a responsibility for its developmentally disabled citizens and an obligation to them which it must discharge.”   The section goes on to note the severity of the problem, and that the complexity of providing services to developmentally disabled persons requires coordinated efforts of many state departments and community agencies.   The section then provides that “Services should be planned and provided as a part of a continuum” and that facilities and services “should” be sufficiently complete to meet each disabled person's needs.   The section notes that “Services should be available to enable persons with developmental disabilities to approximate the pattern of everyday living available to nondisabled people of the same age.”   Abandoning the merely permissive,3 the section declares the legislative intent that agencies serving the developmentally disabled shall produce evidence that their services have resulted in more independent, productive, and normal lives for the persons served.

Where specific levels of aid are legislatively intended, the Legislature has so stated (cf. §§ 11450, 11452);  in this instance it did not.   Nowhere in section 4501 is there established a mandatory duty upon the state to provide a given level of services, nor is there conferred a corresponding entitlement on the part of disabled persons to receive a specified level of treatment.   The fiscal responsibility of the state is set forth in the concluding sentence of section 4501.  “The Legislature declares its intent to monitor program results through continued legislative oversight and review of request for appropriations to support developmental disabilities programs.”   The Legislature unequivocally reserved to itself the power to determine the financial level of services to be provided.

Section 4502 declares the rights of the developmentally disabled, which include all those rights conferred by federal and state laws and Constitutions.   The Legislature then declares its intent that the developmentally disabled shall have a right to treatment and habilitation services, which should foster the developmental potential of the person.   The section does not, however, provide that all treatment or habilitation services are to be provided at state expense.   The section goes on to enumerate several rights of the developmentally disabled, rights which neither the state nor anyone else may infringe.   It does not follow, however, that the state must provide a specific level of treatment or habilitation services at public expense;  nor does the failure to fund such services infringe upon the individual's right to receive them.  (Cf. Harris v. McRae (1980) 448 U.S. 297, 316–318, 100 S.Ct. 2671, 2687–2688, 65 L.Ed.2d 784.)

Plaintiffs attempt to identify a statutory entitlement in sections 4646 and 4648.   Section 4646 provides that individual program plans (IPPs) “may be developed for any person who, following intake and assessment, is found to be eligible for, and in need of, such plan․”   Section 4648 requires Regional Centers to conduct certain activities to achieve the objectives of IPPs.   Plaintiffs strongly rely on section 4648, subdivision (b),4 to support their contention that IPPs, when developed, must be funded.   Subdivision (b) provides that “A regional center may purchase services for a client from any individual or agency the regional center determines will best accomplish all or any part of that client's program plan․”   Plaintiffs argue that this section offers Regional Centers only limited discretion to select the particular individual or agency from whom to purchase, and they contend, in effect, that all services must be provided as a matter of entitlement once they have been specified in a client's IPP.   We find no support for this contention in the statute.

In further support of this argument plaintiffs rely upon Leach v. Swoap (1973) 35 Cal.App.3d 685, 110 Cal.Rptr. 62;  Mooney v. Pickett (1972) 26 Cal.App.3d 431, 102 Cal.Rptr. 708, and Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 81, 162 P.2d 630, each of which involved explicit statutory commands to pay benefits to any person who qualified under the statute's terms.5  Section 4648, by contrast, does not require Regional Centers to purchase every service determined to be beneficial to a client.

Plaintiffs' contention of entitlement also runs afoul of section 4633, which provides in pertinent part that “The department shall not require regional centers to provide or purchase any services beyond the level of the funding appropriation for such services.”  (Emphasis ours.)   Had the Lanterman Act created an entitlement, neither the Department's priorities for the appropriated sum nor the level of the appropriation itself could serve as a limitation on expenditures.   Rather, spending would be limited only by the number of qualified recipients.   Section 4633's explicit limitation of spending to the amount of appropriated funds reveals an unmistakable intent not to create an entitlement.

We conclude that developmentally disabled persons' rights to receive treatment and habilitation services at state expense is limited to the level of available funding and does not constitute an entitlement.

III

 We next consider whether the Department's priorities, issued pursuant to statutory authority, constitute an attempt to administratively rewrite the Lanterman Act.   We conclude that they do not but rather harmonize the Budget and the Lanterman Acts.

Plaintiffs argue the Budget Act language did not direct the Department to require Regional Centers to provide clients less in the way of services than they need, but merely told the Department to offer Regional Centers guidance in deciding which areas of spending to emphasize.   The Budget Act language refutes the contention.

The Budget Act required that the priorities be consistent with the Lanterman Act insofar as is possible (Stats.1982, ch. 326, pp. 190–191);  it follows that where provision of Lanterman Act services conflicts with budgetary goals the latter, not the former, must prevail.   The Legislature has also commanded that the priorities “shall govern the authorization for and expenditure of” appropriated funds.  (Ibid.)  Clearly no mere suggestion or “guidance” was intended;  the term “shall govern” is clearly mandatory.

Plaintiffs also rely upon Morris v. Williams (1967) 67 Cal.2d 733, 737, 753–754, 63 Cal.Rptr. 689, 433 P.2d 697, and California Welfare Rights Organization v. Carleson (1971) 4 Cal.3d 445, 455–458, 93 Cal.Rptr. 758, 482 P.2d 670, both of which are factually inapposite.   In those cases the administrative agency took steps which were contrary to legislative directive, and on that basis the administrative actions were held invalid.  (See, e.g., Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 151 P.2d 233.)   Here, by contrast, the Department followed the legislative directive and issued priorities which were consistent with the Budget Act and, “insofar as is possible,” with the Lanterman Act.

In similar fashion, plaintiffs rely upon a 1981 Attorney General's opinion which held the Department in 1981 lacked the authority to restrict the amount of Regional Center services or limit client eligibility for services through the issuance of “guidelines.”  (64 Ops.Cal.Atty.Gen. 910 (1981).)   The factual predicate for that opinion differed from the present legislative Budget Act.   In the Budget Act of 1981 the Legislature provided that “ ‘notwithstanding any other provisions of law, the Director of the Department of Developmental Services shall establish guidelines for the expenditure of funds budgeted for the regional centers.’  [Citation.]”  (64 Ops.Cal.Atty.Gen. at p. 917, supra;  emphasis added.)   The Attorney General concluded that the “guidelines” were in the nature of voluntary suggestions rather than mandatory “requirements” (p. 917), and that the Department thus lacked statutory authority to compel compliance with its guidelines.  (P. 918.)

In the 1982 Budget Act, however, the Legislature made clear the intended scope of the “guidelines” for the Regional Centers when it called for the establishment of “priorities,” which “shall govern” Regional Center expenditures in certain categories.  (Stats.1982, ch. 326, pp. 189–191.)   The Department was statutorily authorized to do that which it could not under the 1981 Budget Act;  the Attorney General's 1981 opinion is not apposite.6

IV

 Plaintiffs contend that the October Priorities violate the Department's regulations (Cal.Admin.Code, tit. 17, § 50201 et seq.), by which the Department is bound.  (See Bonn v. California State University, Chico (1979) 88 Cal.App.3d 985, 990, 152 Cal.Rptr. 267.)   Plaintiffs suggest the priorities violate clients' “right to treatment,” which is set forth in the Department's regulations (Cal.Admin.Code, tit. 17, § 50510, subd. (a)(1)), as well as in the Lanterman Act itself.  (§ 4502, subd. (a).)  Once again, however, plaintiffs mistakenly infer from the “right” to treatment an entitlement to unlimited treatment at state expense.   The latter is not conferred either by the statute or by the Department's regulations;  the priorities, which limit expenditures to the amount budgeted, do not run afoul of the regulations.

V

 Plaintiffs further assert that the priorities will deprive Regional Center clients of their basic constitutional right to “liberty” and “pursuing and obtaining safety, happiness, and privacy.”  (Cal. Const., art. I, § 1.)  Unfortunately, plaintiffs do not articulate precisely those rights which will be violated, nor do they clarify whether this deprivation follows from anything other than a denial of some treatment at state expense.   Without elaboration, plaintiffs' constitutional claim is not reviewable.

VI

 Plaintiffs' contention that the Department's adoption of priorities for the fiscal year 1982–1983 violated the requirements of the Administrative Procedure Act (APA) (Gov.Code, § 11370, et seq.) is moot and need not be addressed.   The fiscal year 1982–1983 concluded June 30, 1983;  the funds budgeted for that year have now been expended and the Department is now providing services pursuant to new budget appropriations for the fiscal year 1983–1984.   Accordingly, new priorities have either been adopted or will be adopted.   Statutes of 1983 First Ex.Sess., chapter 16, section 26,7 now require that priorities or regulations be adopted as emergency regulations in conformity with the APA.   As a consequence, the issue of prior noncompliance with the APA in the adoption of now expired priorities for the fiscal year 1982–1983 governing budget expenditures is rendered meaningless and need not be considered.  (Woodland Hills Residents Assn., Inc. v. City Council (1980) 26 Cal.3d 938, 948, 164 Cal.Rptr. 255, 609 P.2d 1029.)   In the present posture of the matter, the method of adoption of those 1982–1983 guideline priorities does not impact in any way our disposition on the merits of the appeal.

We note that seemingly in order to preserve the priorities issue, plaintiffs suggest that the 1982–1983 priorities effectively amended California Administrative Code, title 17, section 50530, by allowing the “denial of rights” conferred in California Administrative Code, title 17, section 50510, on grounds other than those specified.   As we have noted in part IV, ante, California Administrative Code, title 17, section 50510, does not confer an entitlement to receive services from the state.   The priorities' restrictions on the amount of available services do not run afoul of the California Administrative Code, title 17, section 50530.

VII

CONCLUSION

We have concluded that the Lanterman Act does not create a statutory entitlement to any particular level or amount of services;  that defendants' priorities were properly issued pursuant to Budget Act and Lanterman Act authority;  that the challenge to the method of adoption of the 1982–1983 priorities is moot and is of no consequence to our disposition of the appeal;  and that plaintiffs have failed to show that the priorities violate Regional Center clients' constitutional rights.

The trial court is directed to vacate the order of January 7, 1983, granting a preliminary injunction, and enter an order denying the petition for preliminary and permanent injunction and to enter judgment in favor of defendants.

FOOTNOTES

1.   Although unclear from the record, apparently both the October and November Priorities were enjoined.

2.   Welfare and Institutions Code section 4501 provides that:“The State of California accepts a responsibility for its developmentally disabled citizens and an obligation to them which it must discharge.   Affecting hundreds of thousands of children and adults directly, and having an important impact on the lives of their families, neighbors, and whole communities, developmental disabilities present social, medical, economic, and legal problems of extreme importance.“The complexities of providing services to developmentally disabled persons require the coordinated services of many state departments and community agencies to insure that no gaps occur in communication or provision of services.“Services should be planned and provided as a part of a continuum.   A pattern of facilities and services should be established which is sufficiently complete to meet the needs of each person with developmental disabilities, regardless of age or degree of handicap, and at each stage of life.   To the maximum extent feasible, services should be available throughout the state to prevent the dislocation of persons with developmental disabilities from their home communities.“Services should be available to enable persons with developmental disabilities to approximate the pattern of everyday living available to nondisabled people of the same age.“The Legislature finds that the mere existence or the delivery of services is, in itself, insufficient evidence of program effectiveness.   It is the intent of the Legislature that agencies serving the developmentally disabled shall produce evidence that their services have resulted in more independent, productive, and normal lives for the persons served.   The Legislature declares its intent to monitor program results through continued legislative oversight and review of request for appropriations to support developmental disabilities programs.”Welfare and Institutions Code section 4502 provides that:“Persons with developmental disabilities have the same legal rights and responsibilities guaranteed all other individuals by the Federal Constitution and laws and the Constitution and laws of the State of California.   No otherwise qualified person by reason of having a developmental disability shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity, which receives public funds.“It is the intent of the Legislature that persons with developmental disabilities shall have rights including, but not limitied to, the following:“(a) A right to treatment and habilitation services.   Treatment and habilitation services should foster the developmental potential of the person.   Such services shall protect the personal liberty of the individual and shall be provided with the least restrictive conditions necessary to achieve the purposes of treatment.“(b) A right to dignity, privacy, and humane care.“(c) A right to participate in an appropriate program of publicly supported education, regardless of degree of handicap.“(d) A right to prompt medical care and treatment.“(e) A right to religious freedom and practice.“(f) A right to social interaction and participation in community activities.“(g) A right to physical exercise and recreational opportunities.“(h) A right to be free from harm, including unnecessary physical restraint, or isolation, excessive medication, abuse, or neglect.“(i) A right to be free from hazardous procedures.”All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

3.   In the Welfare and Institutions Code the term “shall” is mandatory and “may” is permissive.  (§ 15.)

4.   Section 4648, subdivision (b), provides:“Purchase of needed services.“A regional center may purchase services for a client from any individual or agency the regional center determines will best accomplish all or any part of that client's program plan.“In making the initial choice to purchase services from an agency, facility, or individual, the regional center may use a professionally recognized, reliable, and valid instrument of accreditation.   Thereafter, the regional center shall renew its contracts or purchases on the basis of a vendor's success in achieving the objectives set forth in the individual program plan.“No purchase of service contract with any agency or individual shall be continued unless the regional center and the person with developmental disabilities, or when appropriate, the person's parents or legal guardian or conservator agree that reasonable progress has been made towards the objectives for which the service provider is responsible.“Regional center funds shall not be used to supplant the budget of any agency which has a legal responsibility to serve all members of the general public and is receiving public funds for providing such services.“A regional center may, directly or through an agency acting on behalf of the center, provide placement and follow-along services to developmentally disabled persons in licensed community care or health care facilities.   The regional center may also purchase required out-of-home care for such developmentally disabled persons.   In considering appropriate placement alternatives for developmentally disabled children, approval by the child's parent, guardian, or conservator shall be obtained before placement is made.“Each developmentally disabled person placed by the regional center in an out-of-home residential facility shall have the rights specified in this division.   These rights shall be brought to the person's attention by such means as the Director of Developmental Services may designate by regulation.”  (Emphasis ours.)

5.   In Bd. of Soc. Welfare v. County of L.A., supra, 27 Cal.2d at pages 85–86, 162 P.2d 630, our Supreme Court considered Los Angeles County's duty to make public assistance payments pursuant to former section 2500.  (See County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639, 122 P.2d 526.)   Former section 2500 provided that “Every county and every city and county shall relieve and support all incompetent, poor, indigent persons and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, or by their own means, or by State hospitals or other State or private institutions.”  (Stats.1937, chs. 369, p. 1097;  464, pp. 1406–1407;  cf. § 17000;  emphasis added.)   The counties' mandatory duty to provide support is readily apparent on the statute's face.Mooney v. Pickett, supra, 26 Cal.App.3d at page 435, 102 Cal.Rptr. 708, involved public assistance payments pursuant to section 17000, the successor statute to former section 2500.   The two statutes are of nearly identical effect, and impose comparable duties.Leach v. Swoap, supra, 35 Cal.App.3d 685, 110 Cal.Rptr. 62, involved aid to the totally disabled.  (Former § 13500 et seq.) (P. 687, 110 Cal.Rptr. 62.)   Under that program aid was available to any person 18 years of age or over, who has not made a voluntary transfer of property in order to qualify for aid, who is not an inmate or hospital patient, and who is not being supported by a relative.  (Former § 13550.)   The level of aid under the program was calculable for each recipient pursuant to a formula.  (Former § 13700.)Sections 4501 and 4502, by contrast, specify no level of state payments and impose no duty upon the state to provide any given level of services, irrespective of budgetary constraints.

6.   In 1981 the Office of Administrative Law (OAL) also noted the Department's lack of authority under the 1981 Budget Act to place quantitative limits upon the amount of services an individual client may receive.   At that time, the OAL concluded that “That determination [of the quantity of services] was left by the Legislature to those persons responsible for developing each individual program plan.”   In 1982, however, the Legislature took a different tack, and granted the Department the authority, indeed the duty, to do what the OAL concluded it lacked the authority to do in 1981.

7.   Section 26, provides in pertinent part:“SEC. 26.  Notwithstanding subdivision (c) of Section 4630, in order to provide standards for the consistent provision of services and related administrative practices by regional centers throughout the state, the Director of Developmental Services shall, after consultation with the State Council on Developmental Disabilities, the Association of Regional Center Agencies, and the Organization of Area Boards, adopt emergency regulations by July 1, 1983, to govern the allocation of resources among regional centers, to implement Section 4631 of the Welfare and Institutions Code, and to establish standards for the individual program planning and implementation responsibilities set forth in Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code.   These emergency regulations shall be adopted pursuant to the Administrative Procedures Act contained in Chapter 3.5 (commencing with Section 11340) of Part I of Division 3 of Title 2 of the Government Code.   For purposes of the Administrative Procedures Act, the adoption of these emergency regulations shall be deemed to be an emergency and necessary for the immediate preservation of the public peace, health and safety or general welfare for purposes of subdivision (b) of Section 11346.1 of the Government Code․”  (Stats.1983 First Ex.Sess. ch. 16, § 26;  No. 2 Deering's Adv. Legis. Service, p. 69.)

EVANS, Associate Justice.

PUGLIA, P.J., and SPARKS, J., concur.