Untitled California Attorney General Opinion ( 1987 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
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OPINION :
:
of :
:
JOHN K. VAN DE KAMP : No. 87-503
Attorney General :
: OCTOBER 1, 1987
RODNEY O. LILYQUIST :
Deputy Attorney General :
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THE STATE COUNCIL ON DEVELOPMENTAL DISABILITIES has requested
an opinion on the following question:
What is the definition of the term "excess parental fees" as used in Welfare and
Institutions Code section 4677?
CONCLUSION
"Excess parental fees," as that term is used in Welfare and Institutions Code section
4677, refers to all parental fees remaining in the Developmental Disabilities Program Development
Fund after appropriation in the Budget Act for new program development.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Welf. & Inst. Code,
1
§§ 4500-4846) known as the Lanterman Developmental Disabilities Services Act (§ 4500; "Act")
to provide services to developmentally disabled persons in a coordinated manner throughout the
state (§ 4501). The services include locating persons with developmental disabilities (§ 4641),
assessing their needs (§§ 4642-4643), and providing the aid necessary to meet such needs (§§ 4646-
4648). The services are provided through regional centers operated by private nonprofit community
agencies under contract with the Department of Developmental Services ("Department"). (§§ 4620-
4636, 4648.) The purposes of the Act are to prevent or minimize the institutionalization of
developmentally disabled persons 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 (§§ 4501, 4750-4751). (See generally
Conservatorship of Valerie N. (1985) 38 Cal.3d 384, 388-390; 64 Ops.Cal.Atty.Gen. 910, 911
(1981); 62 Ops.Cal.Atty.Gen. 229, 230 (1979); Myers et al., Legislative Evolution of a Statewide
Service System: California's Regional Centers for Developmentally Disabled Persons (1938) 14
Rutgers L.J. 653.)
The parents of children receiving services pay certain fees to help cover the costs of
the services provided. (§§ 4677, 4782-4784; Cal. Admin. Code, tit. 17, §§ 50201-50241; 66
Ops.Cal.Atty.Gen. 505, 506-507 (1983); 64 Ops.Cal.Atty.Gen. 910, 914 (1981).) The question
presented for analysis concerns the use of such fees as set forth in section 4677. Section 4677 states
in part:
"(a) All parental fees collected by or for regional centers shall be remitted
to the State Treasury to be deposited in the Developmental Disabilities Program
Development Fund, which is hereby created and hereinafter called the Program
Development Fund. The purpose of the Program Development Fund shall be to
provide resources needed to initiate new programs, consistent with approved
priorities for program development in the state plan.
". . . . . . . . . . . . . . . . . . . . . . . .
"On or before October 1, 1982, the State Council on Developmental
Disabilities shall request from all regional centers information on priority services
needed but currently unavailable. Based on the information provided by the regional
centers and other local agencies, the State Council on Developmental Disabilities
shall annually develop an assessment of the level of need for new community
programs. This needs assessment shall be included in the state plan. The State
Council on Developmental Disabilities, in consultation with the State Department
of Developmental Services, shall make a recommendation to the Department of
1
All references hereafter to the Welfare and Institutions Code are by section number only.
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Finance as to the level of funding for program development to be included in the
Governor's Budget, based upon this needs assessment.
". . . . . . . . . . . . . . . . . . . . . . . .
"(c) In addition to parental fees and General Fund appropriations, the
Program Development Fund may be augmented by federal funds available to the
state for program development purposes, when these funds are allotted to the
Program Development Fund in the state plan. The Program Development Fund is
hereby appropriated to the department, and subject to any allocations which may be
made in the annual Budget Act. In no event shall any of these funds revert to the
General Fund.
"(d) The department may allocate funds from the Program Development Fund
for any legal purpose, provided that requests for proposals and allocations are
approved by the state council in consultation with the department, and are consistent
with the priorities for program development in the state plan. . . .
"Consistent with the level of need as determined in the state plan, excess
parental fees may be used for purposes other than new program development only
when specifically appropriated to the State Department of Developmental Services
for those purposes.
"For the 1982-83 fiscal year only, parental fees in excess of those
appropriated in the Budget Act of 1982 are hereby appropriated to the State
Department of Developmental Services for purchasing services by regional centers."
(Emphasis added.)
We are asked what is meant by the use of the term "excess parental fees" in
subdivision (d) of section 4677. We conclude that it refers to all parental fees remaining in the
Developmental Disabilities Program Development Fund ("Fund") after appropriation in the Budget
Act for new program development.
The State Council on Developmental Disabilities ("Council") is responsible for,
among other duties, developing a state plan describing the service needs of persons with
developmental disabilities and the goals for ensuring that such needs are addressed. (§§ 4520, 4540,
4561.) Subdivision (b) of section 4561 requires that the plan contain:
"A part recommending priorities for program and facility development or
expansion. Such recommendations shall include statements of justification of need,
specific objectives of programs to be developed, amount and sources of funding,
timing and agencies responsible for implementation. . . ."
This part of the plan contains the "needs assessment" for new community programs
3. 87-503
identified in section 4677 for which the Council recommends a level of funding to be included in
the Governor's Budget.
In addition to parental fees, the Fund may contain both General Fund appropriations
and federal funds. (§ 4677, subd. (b).) The specific purpose of the Fund is "to provide resources
needed to initiate new programs, consistent with approved priorities for program development in the
state plan." (§ 4677, subd. (a).) "Excess parental fees," however, "may be used for purposes other
than new program development" as long as such appropriations are "[c]onsistent with the level of
need as determined in the state plan." (§ 4677, subd. (d).)2
The term "excess" normally refers to the amount or degree by which one thing
exceeds another. (See Webster's New Internat. Dict. (3d ed. 1971) p. 792.) "Excess parental fees"
would thus mean the amount of parental fees by which some amount of parental fees exceeds a
lesser amount. The "some amount" here is the total amount of parental fees in the Fund. The issue
raised by the question is the identification of the "lesser amount." The possibilities appear to be: (1)
the amount the Council recommends in the state plan for new program development, (2) the amount
included in the Governor's Budget for the new development, and (3) the amount appropriated by the
Budget Act for new program development.
In a hypothetical year, as an example, the amount of $5 million in parental fees is on
deposit in the Fund. In the state plan for the year the Council assesses the need for new community
programs by listing 39 programs and recommends the amount of $4 million in parental fees for the
funding of these new programs. It recommends this same amount as the level of funding for new
program development to be included in the Governor's Budget. However, the Governor's Budget
is submitted containing only the sum of $2 million in parental fees for program development. The
Budget Act as enacted for the year contains the amount of $3 million in parental fees for new
community programs.
As indicated, one interpretation of section 4677 is that "excess parental fees" are
those remaining in the Fund after the Council has determined what fees are needed to cover the cost
of new program development. In the example given, $1 million in fees would be considered
"excess" under this interpretation. It is the Council that is responsible for determining the needs
assessment in the state plan and hence, it may be argued, the recommendation of the Council in the
plan as to the level of funding for program development from parental fees would be the one that
must be considered "[c]onsistent with the level of need as determined in the state plan." Any fees
2
We view the authorization to use the fees "for purposes other than new program
development" as an express exception to the general requirement that the Fund is "to provide
resources needed to initiate new programs." To the extent the conditions for the exception are
applicable, it must be given meaning and would control over the more general language. (See
Estate of Banerjee (1978) 21 Cal.3d 527, 540; Romak Iron Works v. Prudential Ins. Co. (1980)
104 Cal.App.3d 767, 776.) Also to be noted is the provision that the Fund is "subject to any
allocations which may be made in the annual Budget Act."
4. 87-503
in the Fund above the Council's recommendation would be "excess" and available for other
purposes.
On the other hand, it may be argued that excess parental fees would be those
available in the Fund for other purposes after deducting the amount of fees specified in the
Governor's Budget or in the Budget Act for new community programs. In the example given the
amount would be either $3 million or $2 million. The "level of need as determined in the state plan"
refers to specified programs in the plan, it may be argued, and not to a particular level of funding
recommended by the Council for the programs. The funding level is determined only in the
Governor's Budget or by the Governor and the Legislature in the Budget Act; arguably, it is only
they who determine what amount of program development funding from parental fees is
"[c]onsistent with the level of need as determined in the state plan." Above such funding level are
excess fees available for other purposes.
Section 4677 does not indicate who is to decide the question of consistency. The
word "consistent" as used in the statute is itself somewhat ambiguous. Generally it means "marked
by agreement and concord . . . coexisting and showing no noteworthy opposing, conflicting,
inharmonious, or contradictory qualities . . . compatible." (Webster's New Internat. Dict. (3d ed.
1971) p. 484.) The Legislature did not, for example, state: "After meeting the level of need as
determined in the state plan, excess parental fees may be used . . . ."
The "excess parental fees" language was added to section 4677 in 1982 (Stats. 1982,
ch. 327, § 203) as part of a complex program "to implement the Budget Act of 1982" (Stats. 1982,
ch. 327, §§ 1, 253). In 1983 (Stats. 1983, First Ex. Sess. 1983-84; ch. 16, § 1) the Legislature
specifically incorporated into the statute the following appropriation language:
"For the 1982-83 fiscal year only, parental fees in excess of those
appropriated in the Budget Act of 1982 are hereby appropriated to the State
Department of Developmental Services for purchasing services by regional centers."
Is the latter language an example and implementation of what the "excess parental
fees" provision was meant to authorize? We believe so. It is a specific appropriation of parental
fees to the Department for a purpose other than program development and limited to "parental fees
in excess of those appropriated in the Budget Act of 1982." The term "excess" has direct reference
to the Budget Act appropriation. The 1983 statutory language is necessary to comply with the 1982
legislative requirement.
It is fundamental that "the various parts of a statutory enactment must be harmonized
by considering the particular clause or section in the context of the statutory framework as a whole."
(People v. Black (1982) 32 Cal.3d 1, 5; accord People v. Craft (1986) 41 Cal.3d 554, 560.)
Legislation is to "be construed so as to harmonize its various elements." (Wells v. Marina City
Properties, Inc. (1981) 29 Cal.3d 781, 788.) "'[W]hen a word or phrase has been given a particular
scope or meaning in one part or portion of the law it shall be given the same scope and meaning in
other parts or portions of the law.'" (Steketee v. Linz, Williams & Rothberg (1985) 38 Cal.3d 46,
5. 87-503
52; (1985) 38 Cal.3d 46, 52; see In re Philpott (1985) 163 Cal.App.3d 1152, 1157.)
Applying these rules, we find with respect to subdivision (d) of section 4677 that
"excess parental fees" are "parental fees in excess of those appropriated in the Budget Act." This
harmonizes the provisions of this subdivision, with the one provision explanatory of and effectuating
the other.
In answer to the question presented, therefore, we conclude that the term "excess
parental fees" as used in section 4677 refers to all parental fees remaining in the Fund after
appropriation in the Budget Act for new program development.
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