Clemente v. Amundson

• Decision Date: 15 January 1998
• Docket Number: No. C024509,C024509
• Citation: 70 Cal.Rptr.2d 645,60 Cal.App.4th 1094
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 397, 98 Daily Journal D.A.R. 530 Sheraya CLEMENTE, a Minor, etc., et al., Plaintiffs and Appellants, v. Dennis G. AMUNDSON, as Director of Department of Developmental Services, et al., Defendants and Respondents; NORTH BAY REGIONAL CENTER, Real Party in Interest and Respondent.

Page 645

70 Cal.Rptr.2d 645

60 Cal.App.4th 1094, 98 Cal. Daily Op. Serv. 397,

98 Daily Journal D.A.R. 530

Sheraya CLEMENTE, a Minor, etc., et al., Plaintiffs and Appellants, v. Dennis G. AMUNDSON, as Director of Department of Developmental Services, et al., Defendants and Respondents NORTH BAY REGIONAL CENTER, Real Party in Interest and Respondent.

No. C024509.

Court of Appeal, Third District, California.

Jan. 15, 1998.

Michael J. Kluk, Sacramento, Daniel Juarez, Los Angeles, and Eric Gelber, Sacramento, for Plaintiffs and Appellants.

Christopher A. Poulos, Amicus Curiae for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Charlton G. Holland III, Senior Assistant Attorney General, Dennis Eckhart, Supervising Deputy Attorney General, and Margarita Altamirano, Deputy Attorney General, for Defendants and Respondents.

Crosby, Heafey, Roach & May, Kathy M. Banke, Bette B. Epstein, and Shelagh K. Redding, Oakland, for Real Party in Interest and Respondent.

CALLAHAN, Associate Justice.

Plaintiffs Sheraya Clemente, Rovel Billy Abueg, Brenton Garner, and the Association for Retarded Citizens--Sonoma County (ARC) sought a writ of administrative mandate (Code Civ. Proc., § 1094.5) and traditional writ of mandate (Code Civ. Proc., § 1085) in Sacramento Superior Court to compel the Department of Developmental Services (DDS), its director Dennis G. Amundson, and the North Bay Regional Center (NBRC) to set aside a DDS administrative hearing decision authorizing parental co-payment for respite services. ¹ Among other points, plaintiffs argued the Legislature did not expressly authorize the co-payment in the Lanterman Developmental Disabilities Services Act (Welf. & Inst.Code, §§ 4500-4905)(the Lanterman Act). ² They also maintained a DDS policy authorizing other regional centers to establish service standards requiring parental co-payment violated the Administrative Procedure Act (Gov.Code, § 11340 et seq.) (APA). The trial court granted other relief sought in plaintiffs' petition, but denied their challenge to the respite co-payment. Plaintiffs appeal.

We conclude NBRC may not impose a parental co-payment for respite services in the absence of express statutory authorization. We also conclude DDS may not implement a general policy on respite co-payment. Accordingly, we reverse and direct the trial court to: (1) issue a writ of administrative mandate compelling DDS to set aside the administrative hearing decision approving NBRC's respite co-payment; and (2) issue a writ of mandate compelling DDS to cease implementation of its statement authorizing regional centers to establish service standards requiring parental co-payment to the extent it applies to respite services.

BACKGROUND

A. The Lanterman Developmental Disabilities Services Act:

The California Legislature enacted the Lanterman Act in 1977 "to prevent or minimize the institutionalization of developmentally disabled persons [ ³] and their dislocation from family and community ... and to enable them to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community." (Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 388, 211 Cal.Rptr. 758, 696 P.2d 150.) As the administrative law judge (ALJ) observed in this case, the Lanterman Act permitted many individuals previously placed in state hospitals to be housed and effectively treated in less restrictive community settings.

Under the Lanterman Act, "[t]he State of California accepts a responsibility for persons with developmental disabilities and an obligation to them which it must discharge." (§ 4501.) The state also recognizes that "[p]ersons with developmental disabilities have the same legal rights and responsibilities [as those] guaranteed all other individuals by the United States Constitution and laws and the Constitution and laws of the State of California." (§ 4502.) Statutory rights include "[a] right to treatment and habilitation services and supports in the least restrictive environment" at state expense. (§§ 4502, subd. (a), 4620, 4646-4648; see also Association for Retarded Citizens v. Department of Developmental Services, supra, 38 Cal.3d at p. 389, 211 Cal.Rptr. 758, 696 P.2d 150.) The Supreme Court construed the Lanterman Act to grant developmentally disabled persons "the right to be provided at state expense with only such services as are consistent with its purpose." (Id. at p. 393, 211 Cal.Rptr. 758, 696 P.2d 150.)

The Lanterman Act authorizes DDS to contract with regional centers such as NBRC to provide developmentally disabled individuals with "access to the services and supports best suited to them throughout their lifetime." (§ 4620.) ⁴ The regional centers are operated by private nonprofit community agencies. (Ibid.) The rights of developmentally disabled persons and the obligations of the state toward them are implemented through individual program plans (IPP) which regional centers must develop for each client. (§§ 4646, 4647; Association for Retarded Citizens v. Department of Developmental Services, supra, 38 Cal.3d at p. 390, 211 Cal.Rptr. 758, 696 P.2d 150.)

DDS is authorized to promote uniformity and cost-effectiveness in the operation of regional centers. (Association for Retarded Citizens v. Department of Developmental Services, supra, 38 Cal.3d at p. 389, 211 Cal.Rptr. 758, 696 P.2d 150, citing §§ 4631, subd. (a), 4681, and 4780.5.) The responsibility of DDS "does not extend to the control of the manner in which [regional centers] provide services or in general operate their programs." (Association for Retarded Citizens v. Department of Developmental Services, supra, at pp. 389-390, 211 Cal.Rptr. 758, 696 P.2d 150.)

In 1992, the Legislature enacted section 4791 in response to the state's "unprecedented fiscal crisis." (Stats.1992, ch. 722, § 27, p. 3371, eff. Sept. 15, 1992.) The new statute required regional centers to submit to DDS detailed plans for absorbing anticipated unallocated budget reductions. (Ibid.) Relevant to this appeal are two subdivisions of the 1992 version of section 4791:

"(c) To carry out the intent of this provision, ... each regional center contract shall include provisions which ensure the regional center will provide services to eligible consumers within the funds available in the contract throughout the contract term. Regional centers shall implement innovative, cost-effective methods of services delivery, which may include, but not be limited to, the use of vouchers, consumer or parent services coordinators, increased administrative efficiencies, and alternative sources of payment for services." (Emphasis added.)

"(h)(1) The plan submitted to the department may include, but not be limited to:

"(A) Innovative and cost-effective methods of services delivery that include, but are not limited to, the use of vouchers; the use of consumers and parents as service coordinators; alternative methods of case management; the use of volunteer teams, made up of consumers, parents, other family members, and advocates, to conduct the monitoring activities described in Section 4648.1; increased administrative efficiencies; alternative sources of payment for services; use of available assessments in determining eligibility; and alternative nonresidential rate methodologies or service delivery models, or both. In addition, the regional center shall take into account, in identifying the consumer's service needs, the family's responsibility for providing similar services to a child without disabilities." (Stats.1992, ch. 722, § 27, emphasis added.) ⁵

B. NBRC's Expenditure Plan:

In December 1994, DDS approved NBRC's expenditure plan for fiscal year 1994-1995. ⁶ The plan merged various services under one title or category. It provided respite services under the title of "day care," differentiating between "day care for relief" and "day care for work and educational purposes." ⁷

NBRC informed parents and family members of its clients that beginning March 1, 1995, families receiving respite care for children under 13 years of age would be expected to pay the regular cost of child care at the rate of $3 per hour. NBRC made clear it would pay a greater portion of the day care costs if "a family [could] demonstrate a financial need, and when not doing so [would] jeopardize the family's ability to keep a child at home, ..." It mailed families a follow-up letter on March 28, 1995, which clarified that the co-payment applied to services previously called respite care. The letter also explained the procedure for requesting a fair hearing in the event families disagreed with the amount of co-payment set by NBRC.

C. The Plaintiffs:

Individual plaintiffs Sheraya Clemente, Rovel Billy Abueg, and Brenton Gardner are developmentally disabled children who are clients of NBRC. Their families are eligible to receive respite services.

At the time of the administrative hearing, Sheraya Clemente was five years old, but functioned at the developmental level of an 18-to-22-month-old. If left unattended, Sheraya would walk out the front door and down the street. She frequently wandered around the house and pulled down unattached objects. Sheraya scattered household items, leaving silverware in her parents' bed and toilet paper in the shower. She did not respond to behavior approaches that worked with a nondisabled child.

Sheraya's IPP authorized her family to receive 96 hours of respite services each quarter. The Clementes used respite to complete household tasks such as cooking, cleaning, shopping, yard work, and maintenance.

Billy Abueg is autistic, hyperactive, and suffers severe mental disabilities. He was nearly 12 years old at the time of the administrative hearing. Billy could not talk and was not toilet trained. His destructive and disruptive behavior required 24-hour supervision by people with the physical ability...