Untitled California Attorney General Opinion ( 1990 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-302
of :
: MAY 24, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE GARY D. MACOMBER, DIRECTOR OF
DEVELOPMENTAL SERVICES, has requested an opinion on the following question:
1. What sources of funding, if any, in addition to those specified in section 4659
of the Welfare and Institutions Code, must be identified and pursued by a regional center for persons
with developmental disabilities?
2. Do the sources of funding which must be identified and pursued by a regional
center for persons with developmental disabilities include parents of developmentally disabled
minors?
3. Do the sources of funding which must be identified and pursued by a regional
center for persons with developmental disabilities include the personal and incidental needs
increment of federal supplemental security income and state supplementary program benefits?
4. May a regional center for persons with developmental disabilities initiate an
action at law for the purpose of pursuing a source of funding for clients receiving services?
5. May the Department of Developmental Services adopt regulations governing
the means by which regional centers for persons with developmental disabilities may identify
sources of funding for clients receiving services?
CONCLUSIONS
1. The sources of funding, in addition to those specified in section 4659 of the
Welfare and Institutions Code, which must be identified and pursued by a regional center for persons
with developmental disabilities, include all public funds to which clients receiving services are
entitled, and all private funds the payment of which to or for the benefit of the client is legally
enforceable.
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2. The sources of funding which must be identified and pursued by a regional
center for persons with developmental disabilities include parents of developmentally disabled
minors, to the extent of their obligation as defined by law.
3. The sources of funding which must be identified and pursued by a regional
center for persons with developmental disabilities do not include the personal and incidental needs
increment of federal supplemental security income and state supplementary program benefits.
4. A regional center for persons with developmental disabilities may initiate an
action at law for the purpose of pursuing a source of funding for clients receiving services.
5. The Department of Developmental Services may, in consultation with the
regional centers, adopt regulations governing the means by which regional centers for persons with
developmental disabilities may identify and pursue sources of funding for clients receiving services.
ANALYSIS
The State Department of Developmental Services ("DDS," post) has jurisdiction over
the execution of the laws relating to the care, custody, and treatment of developmentally disabled
persons. (§ 4416.)1/ "Developmental disabilities" are those which originate before an individual
attains the age of 18, can be expected to continue indefinitely, and constitute a substantial handicap.
The term includes mental retardation, cerebral palsy, epilepsy, autism, and conditions closely related
to or requiring treatment similar to that required for mental retardation, but does not include other
conditions solely physical in nature. (§ 4512, subd. (a).) Services for persons with developmental
disabilities include those directed toward the alleviation of a disability or toward the social, personal,
physical, or economic rehabilitation of a disabled person. Such services may include diagnosis,
treatment, living arrangements, physical, occupational, and speech therapy, training, education,
employment, recreation, counseling, protective services, transportation and other services. (§ 4512,
subd. (b).)
In order to carry out its responsibilities, DDS is authorized and required to contract
with appropriate private nonprofit corporations for the establishment and operation of regional
centers for persons with developmental disabilities and their families. (§§ 4620 & 4621.) Section
4620 further provides in part:
"The Legislature finds that the service provided to individuals and their
families by regional centers is of such a special and unique nature that it cannot be
satisfactorily provided by state agencies. Therefore, private nonprofit community
agencies shall be utilized by the state for the purpose of operating regional centers."
Regional centers are authorized to conduct casefinding activities (§ 4641), perform
initial intake and assessment services (§§ 4642, 4643), and provide preventive services (§ 4644).
The centers are required to develop, coordinate, and purchase needed services for individual
program plans. (§§ 4646, 4647, & 4648.) They also provide materials and education programs to
interested community groups and agencies (§ 4649) and are responsible for the development of an
annual plan and program budget for submission to the director of developmental services (§ 4650).
1. Undesignated section references are to the Welfare and Institutions Code.
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Section 4659 provides as follows:
"(a) Except as otherwise provided in subdivision (c) or (d), the regional
center shall identify and pursue all possible sources of funding for clients receiving
regional center services. These sources shall include, but not be limited to, both of
the following:
"(1) Governmental or other entities or programs required to provide or pay
the cost of providing services, including Medi-Cal, Medicare, and Civilian Health
and Medical Program for Uniform Services, school districts, and federal
supplemental security income and the state supplemental program.
"(2) Private entities, to the maximum extent they are liable for the cost of
services, aid, insurance, or medical assistance to the client.
"(b) Any revenues collected by a regional center pursuant to this section shall
be applied against the cost of services prior to use of regional center funds for those
services. This revenue shall not result in a reduction in the regional center's purchase
of services budget, except as it relates to federal supplemental security income and
the state supplementary program.
"(c) This section shall not be construed to impose any additional liability on
the parents of developmentally disabled children, or to restrict eligibility for, or deny
services to, any individual who qualifies for regional center services but is unable to
pay."2/
The first question is whether a regional center may, under subdivision (a) of the
foregoing section, identify and pursue sources of funds other than those specified in paragraphs (1)
and (2) of that subdivision. The specification of funding sources in subdivision (a)(1), relating to
governmental or other entities or programs, consists of Medi-Cal, Medicare, and Civilian Health and
Medical Program for Uniform Services, school districts, and federal supplemental security income
and the state supplemental program. The list is preceded by the word "including". In the absence of
any statutory indication to the contrary (cf. Coast Oyster Co. v. Perluss (1963) 218 Cal. App. 2d 492,
501), the word include is ordinarily used as a word of enlargement and not of limitation (Atlantic
Oil Co. v. County of Los Angeles (1968) 69 Cal. 2d 585, 596; 65 Ops.Cal.Atty.Gen. 609, 615 (1982).
We look, therefore, to other parts of the statute for indications of legislative intent. In the
introductory portion of subdivision (a), the first indicator is the phrase "all possible sources."
Manifestly, these universal terms may not be literally construed, since no distinctions are drawn
respecting the term "possible," and the pursuit of all such sources is mandatory. A regional center
would not be required, for example, to solicit funding from every charitable foundation in the state.
The provisions of a statute must be given a reasonable and commonsense interpretation consistent
with the apparent purpose and intention of the Legislature, practical rather than technical in nature,
and which, when applied, will result in wise policy rather than mischief or absurdity. (Beaty v.
Imperial Irrigation Dist. (1986) 186 Cal. App. 3d 897, 902.)
Nor would the term "possible" include a source of funding which is otherwise
constrained or limited by law. In this regard, Webster's (New Internat. Dict. (3rd ed. 1961) p. 1771)
first defines "possible" as being within or up to the limits of one's ability or capacity as determined
2. Subdivision (d), referred to in subdivision (a), was deleted in the Assembly on August 7, 1984
(SB 1336).
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by nature, authority, circumstances, or other controlling factor. In United States v. Kessler (3d Cir.
1954) 213 F.2d 53, 57, the court said:
"Was it the intention of the framers of Question 29 to compel an applicant for
citizenship to give information respecting `false arrests' as well as legal and valid
arrests? The applicable regulation . . . requires examiners to cover thoroughly the
question of `possible' arrests. The adjective `possible' seems to imply at least some
regularity of procedure. It is frequently used in ordinary parlance as the equivalent
of `permissible,' as for example, to describe the conduct of an agent acting within the
scope of his authority, express or implied. The adjective clouds the regulation but
we think it was not the intention of its framers to include false arrests within the term
`possible arrests' and therefore within the scope of Question 29. To rule otherwise
would be to treat the word `possible' under the circumstances of this case as the
substantial equivalent of `false' or `invalid.'" (Emphasis added.)
The second principal indicator is the phrase "shall include, but not be limited to," also
found in the introductory portion of subdivision (a). In our view, this expression is manifestly
inconsistent with a restrictive interpretation of the word "including" in paragraph (1). It has been
said that clear statutory language does not require interpretation. (Holder v. Superior Court (1969)
269 Cal. App. 2d 314, 317; 70 Ops.Cal.Atty.Gen. 92, 97 (1987); 68 Ops.Cal.Atty.Gen. 324, 327
(1985).) Consequently, the list in relation to "governmental or other entities or programs" is not
exclusive. Nor does anything in paragraph (2) in relation to private entities suggest an exclusive
interpretation.
On the other hand, certain qualifications are suggested by the terms and items
comprising the lists. As explained in Sears, Roebuck & Co. v. San Diego County Dist. Council of
Carpenters (1979) 25 Cal. 3d 317, 331:
". . . the doctrine of ejusdem generis . . . states that where general words
follow the enumeration of particular classes of persons or things, the general words
will be construed as applicable only to persons or things of the same general nature
or class as those enumerated. The rule is based on the obvious reason that if the
Legislature had intended the general words to be used in their unrestricted sense, it
would not have mentioned the particular things or classes of things which would in
that event become mere surplusage."
(See, 65 Ops.Cal.Atty.Gen. 276, 283 (1982).) We do not deem it essential to the application of the
rule that the general words, e.g., "governmental or other entities or programs," precede rather than
follow the enumerated particulars. In this regard, the rule is more generally stated: "Particular
expressions qualify those which are general." (Civ. Code, § 3534; In re Marquez (1935) 3 Cal. 2d
625, 629.)
Each of the items comprising the list of "governmental or other entities or programs"
in paragraph (1) of subdivision (a) are characteristic of and preceded by the words "required to
provide or pay the cost of providing services." In other words, each item is based upon an obligation
otherwise prescribed by law. The reference in paragraph (2) to "private entities" is limited by the
description "to the maximum extent they are liable for the cost of services. . ." Again, such a
description presupposes an otherwise established obligation. This supposition is consistent with the
mandatory nature of the duty to "identify and pursue" sources of funding. Mandatory pursuit would
appear inappropriate in relation to those innumerable sources, including, for example, charitable
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contributions from individuals, organizations and foundations,3/ having no obligation to provide for
services or costs. This qualification, i.e., an established obligation, applies, therefore, to all sources
of funding. Consequently, the sources of funding in addition to those specified in section 4659,
which must be identified and pursued by a regional center, include all public and private funds to
which the client receiving services may be entitled.
The second question is whether the sources of funding which must be identified and
pursued by a regional center include parents of developmentally disabled minors. It has been argued
in this regard, based on the enumeration of entities or programs in paragraphs (1) and (2) of
subdivision (a), that natural persons are excluded under the doctrine of ejusdem generis. First,
paragraph (2), referring to entities "liable for the cost of services, aid, insurance, or medical
assistance," is not characterized by exclusively artificial entities. The word "entities" in both
paragraphs (1) and (2) connotes an independent, separate, or self-contained existence. (See
Neustadter v. United Exposition Service Co. (N.J. 1951) 82 A.2d 476, 481; Webster's New Internat.
Dict. (3rd ed. 1961) p. 758.) Hence, individual human beings are entities. Second, the express
exception in subdivision (c) of a certain class of individuals, e.g., "This section shall not be
construed to impose any additional liability on the parents of developmentally disabled children
. . .," contemplates the inclusion of natural persons in subdivision (a). Otherwise, the noted
exception would be wholly superfluous. Consequently, entities may be public or private, including
individuals, corporations, and government agencies.
It may be argued that the "additional liability" referred to in subdivision (c)
constitutes a limitation upon the identification and pursuit of parental liability by regional centers,
leaving, in effect, all collection of such liability to DDS pursuant to section 4782, providing as
follows:
"Parents of children under the age of 18 years who are receiving 24-hour out-
of-home care services through a regional center or who are residents of a state
hospital or on leave from the state hospital shall be required to pay a fee depending
upon their ability to pay, but not to exceed (1) the cost of caring for a normal child
at home, as determined by the Director of Developmental Services, or (2) the cost
of services provided, whichever is less. The State Department of Developmental
Services shall determine, assess, and collect all parental fees in the manner as
provided in Section 7513.2. The method of determination of the amount of the fee
shall be the same, whether the child is placed in the state hospital or in a public or
private community facility. In no event, however, shall parents be charged for
diagnosis or counseling services received through the regional centers."
However, we view the constraint upon the imposition of additional liability as a
reference to the amount as limited by section 4782, and not as a reference to the pursuit of such
obligation. That regional centers are responsible to pursue the parental funding source is further
supported by section 4784, subdivision (a):
"The Director of Developmental Services shall establish, annually review,
and adjust as needed, a schedule of parental fees for services received through the
regional centers . . ."
3. Compare, e.g., section 4781: "The department may accept and expend grants, gifts, and
legacies of money . . . ." It is not suggested, of course, that a regional center may not solicit such
sources for donations.
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Consequently, while parents are included as sources of funding, their inclusion does not warrant an
interpretation which would expand their liability beyond that otherwise provided in section 4782.
This view clearly appears not only from the express terms of subdivision (c) of section 4659, supra,
but also as a consequence of the specific limitation in subdivision (a), paragraph (2), i.e., "to the
maximum extent they are liable . . . ."
It is concluded, therefore, that the sources of funding which must be identified and
pursued by a regional center include parents of developmentally disabled minors, to the extent
provided by section 4782.
The third inquiry is whether the sources of funding which must be identified and
pursued by a regional center include the personal and incidental needs increment of federal
supplemental security income and state supplementary program (SSI/SSP) benefits. Under section
12200, subdivision (h), for example, an aged, blind, or disabled aid recipient is entitled to be paid
a specified amount for the "personal and incidental needs" of a person receiving care in a medical
facility under the Medi-Cal Act. While SSI/SSP is a source of funding specifically referred to in
section 4659, is the "personal and incidental" increment one of the "possible sources" of funding
within the meaning of subdivision (a) of that section? We think not. First, section 4659 does not
stand in isolation, but rather in the context of a universal body and system of laws of which it is part.
It follows that in executing the particular statutory responsibility imposed by that section, those
charged with its administration must take cognizance of, and effectuate or at least refrain from acting
in derogation of other valid governmental policies. (Zabel v. Tabb (1970) 430 F.2d 199, 209; 67
Ops.Cal.Atty.Gen. 225, 233 (1984).) In our view, the increment for personal needs relates to those
needs of each individual which are peculiar or proper to private concerns. (See Webster's New
Internat. Dict. (3d ed. 1960) p. 1686; and cf. Stovall v. Gartrell ((Ct. App. Ky. 1960) 332 S.W.2d
256, 260.) That which is incidental is subordinate, nonessential, or attendant in position or
significance, and likely to ensue as a chance or minor consequence. (See Webster's, supra, at 1142.)
The phrase "personal and incidental expenses" was considered in People v. Leach (1964) 42 Misc. 2d
143, 247 N.Y.S.2d 198, 201:
"The personal and incidental expenses for the payment of which provision
is made are such as relate to those incurred by counsel on his personal account. The
word `incidental,' as used in the statute, is associated with the word `personal,' and
is used conjunctively. . . . The word `incidental,' as used in the statute, must be
construed in accordance with its ordinary meaning, which is: `Of minor importance,
occasional, casual; as incidental expenses'; `something subordinate or casual; often
used in the plural to mean minor expenses.' Cent.Dict."
Reasonably construed, these essentially discretionary funds were intended to be utilized for purely
private concerns and purposes according to the particular inclinations of its recipients, and not to
support a government program.4/ In this regard, we construe the words in section 4659 "to identify
and pursue all possible sources of funding for clients receiving regional center services," as a
4. As used in another context, the phrase "personal and incidental needs" clearly suggests an
amount to be paid to, and not charged against, the recipient. Section 4474 provides:
"Each patient in a state hospital for the developmentally disabled who has
resided in the state hospital for a period of at least 30 days shall be paid an amount
of aid for his or her personal and incidental needs which when added to his or her
income equals twelve dollars and fifty cents ($12.50) per month." (Emphasis added.)
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mandate to take and use funds from such sources to offset the costs of such services. As provided
in subdivision (b) of that section, "Any revenues collected by a regional center pursuant to this
section shall be applied against the cost of services prior to the use of regional center funds for those
services." The question under consideration, then, is whether the centers may utilize the personal
and incidental needs increment for the payment of costs which would otherwise be funded by the
state (see §§ 4780, 4780.5). In our view, the pursuit by a regional center of the monetary increment
set apart for needs which are personal and incidental, as those words are construed conjunctively
(People v. Leach, supra) would operate in derogation of the statutorily designated purposes for
which the grant was authorized.
Finally, while the term is not specifically defined in related administrative
regulations, personal and incidental needs are expressly excluded from the "basic rate" charged by
a licensed community care facility to provide basic services to SSI/SSP recipients. (Tit. 22, C.C.R.,
§ 80001(a)(7).) Rather, personal and incidental needs allowances from funding sources including
but not limited to SSI/SSP are among the client's "cash resources." (Tit. 22, C.C.R.,
§ 80001(a)(11)(D).) A community care facility is required to safeguard the cash resources of its
clients. (Tit. 22, C.C.R., § 80026(b).) Such cash resources, personal property, and valuables of
clients must be held separate and intact, not commingled with facility funds or petty cash, and free
from any liability incurred by the facility. (Tit. 22, C.C.R., § 80026(d) and (e).) The facility may
not expend a client's cash resources for any basic services; upon discharge, all such cash resources
must be surrendered to the client. (Tit. 22, C.C.R., § 80026(f) and (k).) A similar distinction
between personal and incidental needs and the costs of care appears in federal regulations.
Specifically, a state plan providing for assistance to individuals under title XI of the Social Security
Act must provide that in determining financial eligibility for institutional services in intermediate
care facilities, available income will be applied first for personal and incidental needs including
clothing, and that any remaining income will be applied to the costs of care. (Tit. 45, C.F.R., pt.
234.130(a).)
In view of these distinctions, it is concluded that the personal and incidental needs
increment of SSI/SSP benefits is not included within the sources of funding which must be identified
and pursued by a regional center.
The fourth question is whether a regional center may initiate an action at law to
pursue a source of funding for clients receiving services. The statute specifies neither those means
which are permitted nor those which are prohibited. Under these circumstances, the rule applies that
where the means by which an official duty is to be accomplished is not prescribed, any reasonable
means may be used. (Harris v. Gibbins (1896) 14 Cal. 418, 421; 70 Ops.Cal.Atty.Gen. 248, 250
(1987).) The rule has been similarly expressed that where a statute confers powers or duties in
general terms, all powers and duties incidental and necessary to make such legislation effective are
included by implication. (Clay v. City of Los Angeles (1971) 21 Cal. App. 3d 577, 585.) As stated
in Rushing v. Powell (1976) 61 Cal. App. 3d 597, 604, ". . . where the main purpose of the statute is
expressed, the courts will construe it so as to effectuate that purpose by reading into it what is
necessary or incident to the accomplishment of the object sought."
While such determinations as to what may be reasonable, necessary or incident to the
accomplishment of the statutory objective must be made initially by the officer charged with its
administration (70 Ops.Cal.Atty.Gen., supra, 250), we entertain no doubt that such powers would
include demand and legal action.
The final question is whether DDS may adopt regulations governing the means by
which regional centers may identify and pursue sources of funding. In 62 Ops.Cal.Atty.Gen. 229,
232 (1979), we noted that the primary statutory responsibility of DDS with respect to regional
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centers was limited to evaluating the cost effectiveness of their programs while allowing flexibility
in the manner in which the desired objectives were achieved. As stated in Association for Retarded
Citizens v. Dept. of Dev. Services (1985) 38 Cal. 3d 384, 389-390:
"Under the statutory scheme it is the regional centers, not DDS, that provide
services to developmentally disabled persons and determine the manner in which
those services are to be rendered. (See §§ 4620, 4630, 4648, 4651.) DDS has the
authority to promote uniformity and cost-effectiveness in the operations of the
regional centers. For example, DDS is responsible for developing uniform systems
of accounting, budgeting, and reporting (§ 4631, subd. (a)), setting the rates for out-
of-home care (§ 4681), and auditing and paying funds to the regional centers
(§ 4780.5). In short, whereas the responsibility of the regional centers is broadly to
provide each developmentally disabled person with services that enable him to live
a more independent and productive life in the community (see §§ 4620, 4630, 4646-
4648, 4651), the responsibility of DDS, as the Attorney General has concluded on
other occasions, is basically limited to promoting the cost-effectiveness of the
operations of the regional centers, and does not extend to the control of the manner
in which they provide services or in general operate their programs (64
Ops.Cal.Atty.Gen., supra, 910, 916; 62 Ops.Cal.Atty.Gen. 229, 230-231 (1979); see
§§ 4629, 4631, 4751-4753)."
Less than five months following the issuance of our 1979 opinion (62 Ops.Cal.Atty.Gen. 229,
supra), the Legislature added subdivision (a) to section 4631 (Stats. 1979, ch. 1140, § 1) to provide
for the adoption of departmental regulations prescribing not only uniform systems of accounting,
budgeting, and reporting as noted in Association for Retarded Citizens, supra, but also "a systematic
approach to administrative practices and procedures . . . ." Subdivision (a) provides as follows:
"In order to provide to the greatest extent practicable a larger degree of
uniformity and consistency in the services, funding, and administrative practices of
regional centers throughout the state the State Department of Developmental
Services shall, in consultation with the regional centers, adopt regulations
prescribing a uniform accounting system, a uniform budgeting and encumbrancing
system, a systematic approach to administrative practices and procedures, and a
uniform reporting system which shall include:
"(1) Number and costs of diagnostic services provided by each regional
center.
"(2) Number and costs of services by service category purchased by each
regional center.
"(3) All other administrative costs of each regional center." (Emphases
added.)
The term "administrative" describes those acts and practices which are in furtherance
of the execution of declared legislative policies and purposes. (Hubbs v. People ex rel. Dept. Pub.
Works (1974) 36 Cal. App. 3d 1005, 1008-1009; 64 Ops.Cal.Atty.Gen. 690, 694 (1981).) The
identification and pursuit of sources of funding, the uniformity and consistency of which among the
various regional centers is an express purpose of section 4631, subdivision (a), are acts of
administration. The systematic approach to the administrative practices and procedures, including
funding, of regional centers, is an expressly authorized subject of regulation. Consequently, DDS
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may, in consultation with the regional centers, adopt regulations governing the means by which
regional centers may identify and pursue sources of funding.
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