05/16/2010 05:12 am ET Updated May 25, 2011

Several Reasons Why Closure of Lanterman & Fairview Does Not Pass Legal Muster

I want to outline several reasons why the closure of Lanterman Developmental Center (Pomona, CA) and Fairview Developmental Center (Costa Mesa, CA) is wrongheaded, and may, in fact, be illegal. For background on the history of developmental centers in California and the proposed closure, please read the piece here. In short, Senator Gloria McLeod (D, District 32) introduced Senate Bill 1196 on February 18, 2010. The bill would require the State Department of Developmental Services to close the Fairview Developmental Center, the Lanterman Developmental Center, or both, by December 31, 2010. The proponents of the closure struggling to meet a legal deadline of April 1, 2010 (California Welfare and Institutions Code, § 4474.1 (a)) to submit a plan to the legislature, otherwise they must wait to until the subsequent fiscal year.

This rapid push to close Lanterman and Fairview raises at least three significant legal problems.

(1) Closure Would Entail Institutionalization

At its peak, the California Department of Developmental Services (DDS) operated seven state hospitals for the care of clients with developmental disabilities, the (1) Agnews State Hospital; (2) Camarillo State Hospital; (3) Fairview State Hospital; (4) Frank D. Lanterman State Hospital; (5) Porterville State Hospital; (6) Sonoma State Hospital; (7) Stockton State Hospital (W&I Code, § 4440). In addition, the Department leases two facilities for persons who require specialized behavioral interventions: Sierra Vista, a 58-bed facility in Yuba City, and Canyon Springs, a 63-bed facility in Cathedral City. Budget cuts over the past decades have significantly reduced the number of clients in these facilities. Agnews State Hospital, for instance, now operates as an outpatient clinic. The clinic provides safety net primary care and dentistry services for former Agnews residents. In accordance with the approved closure plan, Agnews Developmental Center stopped providing 24 hour care in March 2009. The Sierra Vista Community Facility is expected to close by February 2010.

As of today, California operates four primary care developmental centers, two in Northern California (Sonoma and Porterville), and two in Southern California (Fairview and Lanterman). The proposal on the table requires the closure of the two Southern California facilities, leaving Sonoma and Porterville as two remaining developmental centers.

Closing the Southern California centers, however, would require moving many (if not most) existing clients to the facilities in Northern California. The wording of Senate Bill 1196 makes it clear the Legislature intends "to move consumers currently housed in the closed facility or facilities either into the remaining facility or into community placements appropriate for serving their needs." The problem with moving clients from their homes in Lanterman and Fairview is that it paradoxically institutionalizes them.

In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court decided that mental illness is a form of disability and that institutional isolation of a person with a disability is a form of discrimination under Title II of the ADA. Institutionalization perpetuates unwarranted assumptions about people with disabilities and their ability to participate in community life. Institutionalization can also severely diminish the quality of life of persons with mental illness by severing connections to family and other social contacts as well as limiting economic independence. In addition the court decided that the state must transfer the plaintiffs to a community based treatment center.

Lanterman, Fairview and the California regional centers are community based centers. They are residential communities that house individuals from the broader community who are unable to receive proper treatment in their homes. Factually, these are individuals with severe mental and physical disabilities who need highly specialized support and care of the type provided at the regional centers. Clients at Lanterman and Fairview come from the greater Los Angeles County or Orange County areas, and reside in safe facilities within proximate distance to their families, places of work, worship and/or entertainment. Many LDC and FDC clients have lived at Lanterman and Fairview for extended periods of time, forming close personal and professional bonds with staff, community organizations and their surroundings.

Relocating individuals from Lanterman and Fairview to Porterville, for instance, raises legal problems because it quite literally forces clients into "institutional isolation"--which is a form of discrimination under Olmstead. Porterville offers a stark illustration of this form of "institutional isolation."

Porterville is currently home to close to 600 clients, and houses the "secure treatment" facilities of the DDS system. Non-euphemistically, 'secure treatment' refers to individuals with developmental disabilities who are institutionalized after committing or threatening to commit violent or criminal conduct (the well known Programs 7 and 9). Program 7, the responsible relationships development program, serves individuals in a secure setting who are alleged to have participated/engaged in a criminal offense or may display serious assaultive behavior that requires a highly structured treatment setting. Training is provided to increase their skills in social development, communication, self-care, physical motor coordination and interpersonal relationship development. Specialized educational and vocational opportunities are also provided. Individuals admitted range in age from 14 years to 65 years. Program 9, the secure treatment program for behavioral,emotional and social development serves individuals in a secure setting who have multiple maladaptive behaviors including sexual offenses, assaults, self-abuse, property destruction, drug abuse and other socially undesirable and antisocial behaviors. Services provided include work/life skills, substance abuse training, anger management, relaxation therapy, individual and group therapy, sex offender relapse training, education and employment services. Those admitted must be at least 18 years of age. Porterville, of course, also houses clients in other non-secure, residential, programs.

Relocating Lanterman or Fairview clients to Porterville raises immediately flags under Olmstead. First, take the issue of geographical remoteness. Porterville, located in the foothills of the Sierra Nevada mountains, is close to five hours away from the SF/Bay Area (260 miles), and more than 3 hours away from Los Angeles. Perhaps coincidentally, however, it is located just 33 miles away from Corcoran State Prison, one of the deadliest minimum-maximum prisons in the country, popularized by MSNBC's LockUp.

It does not take a psychologist to understand that relocating individuals from urban environments to rural Porterville drastically reduces clients' ability to participate in community life. Even relocation to beautiful Sonoma raises the same concerns. Southern California clients at Lanterman and Fairview enjoy regular excursions to the beach and local attractions like Knott's Berry Farm, Disneyland, local museums, theaters and other cultural venues, financed with generous contributions from the respective organizations. By contrast, the largest employer at Porterville is the Porterville Developmental Center. Equally important, SoCal developmental centers are within driving distance to specialized medical and trauma centers. Thus, Lanterman and Fairview clients receive specialized care at Pomona Valley Medical Center or level one trauma centers like Loma Linda Medical Center, or St. Joseph's or Hoag in Orange County. Proximity to these medical centers reduces the ultimate cost to the State when one takes into account transportation, facility fees and staff overtime to accompany clients to medical appointments.

More generally, the very reason that regional centers were established was to provide care and interaction within a community setting. Regional centers are located so as to allow admissions from the community, and transfer back into a community. LDC and FDC fully live up to this mandate by providing significant community interaction. Relocating clients away from their communities to other centers violates this bond and obligation.

(2) Lack of Sufficient Notice

Second, the proposals to close LDC and FDC may violate fundamental guarantees of due process under the federal and California constitutions. This is because the abbreviated two-month notice and public-hearing period that has been pushed by the DDS and California Legislature does not allow sufficient time to weigh public opinion and consider the input of the affected clients.

Lanterman and Fairview clients have constitutional rights, as citizens, to participate in the debates over the fate of LDC and Fairview. These rights are enumerated in the Fifth Amendment--which explicitly prevents individuals from being deprived of life, liberty, or property without "due process of law"--and applied to the states by the Fourteenth Amendment. As I have stressed elsewhere, as citizens, Lanterman and FDC clients partially own the public facilities in which they live. Depriving them of their homes without sufficient procedural guarantees would violate their constitutional rights to due process.

As it stands, the notice provisions of Welfare and Institutions Code § 4474.1 require that public hearings he held to take into account the impact on all stakeholders in the proposed closure. At least one public hearing is required. The plain language, legislative intent and history of this section show that the procedure was meant to be initiated well in advance of the fiscal year in which the anticipated closure would take place. The plain wording of section 4474.1 indicates that the closure has to be anticipated in the Governor's proposed budget and discussed well in advance of the April 1 deadline.

The current move to close LDC stretches the interpretation of section 4474.1 to the breaking point. Not only is the closure of Lanterman not in the proposed budget, but SB 1196 also seems to attempt to make an end-run around the requirement of section 4474.1(b) which requires that the plan to be implemented be "subsequently modified during the legislative review process." The plain reading of 4474.1 suggests that the DDS has to submit a detailed plan to the governor and legislature, at which point it is incorporated into the proposed budget, then modified (if necessary) by the legislature, and ultimately passed into law.

By contrast, in effort to beat the April 1 deadline, proponents of the closure are attempting to hold the necessary meetings and prepare closure plans, that would be subsequently inserted into the revised budget. Put another way, Schwarzenneger's proposed budget provides for continued funding for the developmental center programs, with minor cuts. The proposed budget does not anticipate Lanterman or Fairview closure. This makes McLeod's position appear all the more puzzling. While ordinarily such cost-cutting, expedient and coordinated administrative action would be a welcome departure from Sacramento's modus operandi, in the context of Lanterman and Fairview, the legislative gamesmanship at issue here seems disingenuous.

Furthermore, the method of the closure hearings raises significant due process notice concerns, not only from the standpoint of clients (and consumers in the broader communities), but also from the standpoint of the general public. The original notice of intent to close LDC was issued on January 29, 2010. The first (and only legally mandated) public hearing on the closure took place just two weeks after the announcement. Perhaps in effort to remedy this previous short notice, DDS chiefs will participate in an additional public comment town hall meeting. Yet shockingly, the announcement and notice for this second meeting provides mere days of notice. These efforts by DDS are woefully inadequate and raise questions about the need for accountability and additional input from stakeholders.

(3) Fast Track Nature of Closure Suggests Undue Influence

At this point, we come to the central question--why is the closure being pushed so aggressively and so quickly? Without dwelling on the speculative, the answer lies in property.

Both Lanterman and Fairview are located on prized lots of real estate. I have described the environment of Lanterman elsewhere, but a description of Fairview from its own website is in order:

Originally occupying 752 acres, [...] the beautiful park-like campus is surrounded on three sides by a 36-hole golf course built on land that was sold to the city [of Costa Mesa]. Facilities include a swimming pool, work activity center, auditorium, park, small animal farm, recreational campsite, and library. The climate in Costa Mesa is mild, with ocean breezes making Fairview a very pleasant place to live and work.

Lanterman and Fairview are a developer's El Dorado. This is why developers have started to lobby so aggressively for local politicians to get behind the closure. Yet if there is anything more unconscionable about closing Lanterman and Fairview, it would be to close Lanterman and Fairview in order to build yet more suburban subdivisions, all to bring pennies on the dollar to the state for its immensely valuable real estate.

Ultimately, however, this is a policy issue and what the best use for LDC and FDC property will be decided by the Legislature. But it is critically important to screen off the closure issue from the vulture-like gazes of Southern California property developers. This is not the place to discuss the hundreds of unique and valuable uses for the Lanterman and Fairview lands--from providing shelter in cases of emergency, to offering public spaces and earthquake relief. But in effort to recenter the debate on the real impact of anticipated closure--the effect on current residents--it may be worthwhile to propose that any legislation affecting closure of Lanterman and Fairview include binding language placing Lanterman and Fairview property in trust and prohibiting immediate sale for a period of time (such as 7-10 years). In the intervening time, use of the facilities can be transferred to the California State University or California Community College systems (i.e., CalPoly Pomona).

Cash-strapped California can afford to weather the current budget crisis with Lanterman and Fairview intact (as evidenced by the Governor's propsed budget). What it cannot afford to do is sell its obligation to protect, and its most prized lands, while shipping its developmentally disabled community out of sight, and far from view.