Bill Lockyer

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Dear [ ], January 2007

Three years ago California found itself with severe fiscal difficulties. California implemented several cost-containment measures to address these difficulties. Some of these cost-containment measures continue to this day. Sui generis amongst those is a prospective change in the eligibility requirements for Regional Center Services.[1] The state justifies this change as a device needed to preserve the fiscal integrity of California’s developmental services. However, the prospective eligibility change has created an invidious classification, does nothing to preserve the fiscal integrity of California’s developmental services, and therefore has no rational basis under the law.

Through the Lanterman Developmental Disabilities Services Act The Department of Developmental contracts with 21 regional centers to broker services for persons with developmental disabilities (consumers). Regional centers are required to locate persons with developmental disabilities;[2] assess their needs[3]; and, on an individual basis, selecting and providing services to meet such needs.[4] People with developmental disabilities have an “entitlement” under The Lanterman Act to services that will, “empower them to make choices and lead more independent, productive, and normal lives”[5]. People with developmental disabilities are entitled to “Services and supports should be available to enable persons with developmental disabilities to approximate the pattern of everyday living available to people without disabilities of the same age.”[6]

In regards to those services provided through the regional centers, the 2003 budget proposed several cost-containment measures that were to apply to all consumers served. These measures included but are not limited to, statewide purchase of services standards, parental co-payments, and unallocated reductions. One cost-containment method employed does not apply to all consumers. Assembly Bill No. 1762 changed the definition of “substantial disability”, and stated that, “any reassessment of substantial disability for purposes of continuing eligibility shall utilize the same criteria under which the individual was originally made eligible.”[7] If a person is not found to have a substantial disability they are not found to have a developmental disability, and therefore NOT eligible for regional center services. It is this prospective application, the grandfather clause, that makes this classification so invidious and consequently it stands alone amongst other cost-containment measures.

This year, because of this classification, it is estimated that over 1000 people with developmental disabilities in need of services will receive NO services. It is estimated that by completely removing ALL services to these 1000 people California will save at most 10 million dollars this fiscal year. In Comparison, this budget year other consumers, which are similarly situated and eligible for services via the grandfather clause, received an increase of 13% over last year’s level of spending. This increase included a 24% rate increase for on the job training, and an additional $19 million for wage enhancements for direct care providers. In total, other consumers received an increase of about $245 million dollars. Over $100 million of this is an increase above and beyond natural growth caseload and purchase of services.

Last year the prospective change in eligibility saved California an estimated 6 million dollars. This savings was accomplished by removing ALL service delivery to prospective consumers that do not meet the new requirements but would have qualified for services under the old eligibility standards. The proposed purchase of service standards would have applied to every consumer served. The administration estimated that these standards would have saved over 100 million dollars a year. This is 10 times the estimated savings via the prospective eligibility change. The legislature chose NOT to implement the statewide purchase of services standards. Parental co-payments apply to every consumer served. Parental co-payments are assessed on a sliding scale based on income, and are applied only to families earning more than 200 % of the federal poverty level. Parental co-payments are estimated to save California over 35 million dollars annually. This savings is over 3 times the estimated savings via the prospective eligibility change.

California continues to face financial difficulties, and the state has a valid interest in preserving resources. California has the authority to limit expenditures, but California interest in cutting costs is not sufficient to justify the invidious distinction it has created through the prospective eligibility change.[8] The state justifies this classification as a device needed to preserve the fiscal integrity of California’s developmental services. However, the funding increases introduced this year renders moot the state’s justification. The 10 million dollars saved by this classification represents a mere ½ of 1% of total spending on community services and only 4% of the new dollars infused into Regional Center services this year. There is no need to use this classification for the purpose that state governmental has suggested. Other cost-containment mechanisms exist, are at the states disposal, can easily accomplished desired savings, and DO NOT create invidious classifications. Under quondam law the state had the authority to amend eligibility standards under Title 17 §54001(a) through the regulatory process without creating any classifications. No set of facts exists that justifies this disparate treatment of people with developmental disabilities. No rational person can suppose that this classification preserves the fiscal integrity of California’s developmental services, or furthers any other state interest or legislative purpose. Saving money cannot justify this otherwise invidious classification.[9] If California wishes to continue this disparate treatment of people with developmental disabilities California must do more than show that denying benefits to new consumers saves money.[10]

Over 200,000 people with developmental disabilities are served via the Department of developmental services. It is a minority that can have trouble finding a voice in Sacramento, and it is a minority that can easily become disenfranchised. This is especially true in regards to the change in eligibility because those affected by the eligibility change are tomorrow’s consumers. Tomorrow’s consumers cannot speak in their defense today. The aegis of the state is the only protection and voice these people will get. Proof of this reality is the fact that various service providers managed to get a 42 million dollar increase for supported employment while there still exists consumers who will get NO services. Those individuals are in just as much need as those consumers benefiting from this funding increase. We know this to be true because California has chosen to provide needed services to some individuals under a grandfather clause. The people with disabilities affected by this change do not have to contend with rate freezes, rate reductions, or the threat of Purchase of Service Standards. They will receive NO services brokered through the regional center.

Equality is not just an abstract justice. Nothing opens the door to arbitrary and unfair action so effectively as to allow the state legislature to pick and choose the few to whom they will apply legislation and thus escape the political consequences that might be visited upon them if larger numbers were affected.[11] Nothing opens the doors more widely than when the ‘few’ that the legislation chooses have developmental disabilities, and have little chance to become aware of the disparate treatment. We can take no better measure to assure that laws will be just than to require that laws be equal in their application. We cannot balance the budget on the shoulders of so few. The prospective eligibility change IS NOT equal in its application and sets up an invidious classification that has no rational basis under the law.

Your help is needed.

Yours truly,

[your name here]

cc:

[1] Assembly Bill No. 1762 CHAPTER 230 Chaptered August 11, 2003

Welfare and Institution Code (WIC) § 4512(l)

[4] WIC §§ 4646-4647, Association for Retarded Citizens v. Department of Developmental Services, supra, 38 Cal.3d at page 388.

[8] Graham v. Richardson et al 1971; 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534.

[10] Shapiro v. Thompson, No. 9, 1969; 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600

[11] 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring).