BILL ANALYSIS Ó
SB 368
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Date of Hearing: June 28, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
SB 368 (Liu) - As Amended: May 31, 2011
SENATE VOTE : 40-0
SUBJECT : Developmental services: decisionmaking.
SUMMARY : Gives juvenile courts the authority to limit a parent
or guardian's right to make decisions about the regional center
and other developmental services for a child with developmental
disabilities, and to appoint a developmental services
decisionmaker. Specifically, this bill :
1)Gives the juvenile court the authority to limit a parent or
guardian's right to make developmental services decisions on
behalf of his or her child, and to appoint a developmental
services decisionmaker.
2)Assigns to probation departments the responsibility to
consider identifying a person to make developmental services
decisions for the child when the parents of a ward of the
court are unable or unwilling to make those decisions.
3)Expands the definition of an "authorized representative" for
the purposes of the regional center fair hearings process to
include a court-appointed developmental services
decisionmaker, foster parent, caregiver, or court appointed
special advocate.
4)Limits the duration of the court order for the developmental
services decisionmaker until, among other possible scenarios,
the child is placed in a permanent living arrangement with a
foster parent, relative caretaker or nonrelative extended
family member who will thereafter become the child's
authorized representative for the regional center fair
hearings process.
5)Requires regional centers to comply with the request of an
authorized representative to forward all notices related to
regional center services and individual program plan (IPP)
meetings to the child's parent or family member.
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6)Adds authorized representatives to the group of individuals
who may inform the IPP assessment, and allows the authorized
representative to consent to or participate in aspects of the
IPP.
7) Adds the authorized representative to the list of persons who
are able to grant written permission for someone to access a
minor, ward, or conservatee's confidential regional center
records and information.
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EXISTING LAW
1)Gives the juvenile court the authority to limit a parent or
guardian's right to make educational decisions on behalf of
his or her child, and to appoint an "education rights holder"
to make those decisions. Welfare and Institutions Code (WIC)
Section 319, 361.
2)Limits the duration of the "education rights holder" order
until, among other possible scenarios, the child is placed in
a permanent living arrangement with a foster parent, relative
caretaker or nonrelative extended family member who thereafter
assumes the right to make educational decisions on behalf of
the child. WIC 361, 726.
3)Establishes a system of regional centers to provide case
management and provision of services to individuals found to
have one of several specific developmental disabilities before
their 18th birthday.
4)Establishes the IPP for any person eligible for regional
center services, outlining the services and supports to be
purchased or arranged for by the regional center on the
consumer's behalf and which reflect the individual needs of
the consumer. WIC 4646.
5)Provides for the participation by the consumer's parents,
legal guardian, conservator, or authorized representative, as
appropriate, in the IPP process as a member of the IPP
planning team, and requires the parent, legal guardian or
authorized representative's signature on the IPP prior to the
plan implementation. WIC 4646.
6)Establishes area boards on developmental disabilities and
grants area boards the authority to pursue legal,
administrative, and other remedies to protect the rights of
developmental service recipients. WIC 4548.
7)Provides area boards with the authority to appoint an
"authorized representative" to assist a person with
disabilities in making decisions and advocating for his or her
needs when he or she has no parent, guardian or conservator
legally authorized to represent his or her interests. WIC
4548.
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8)Requires each regional center or service agency serving
persons with disabilities to establish an agency fair hearing
grievance procedure to resolve conflicts with the applicants
or recipients of their services, and provides that the local
area board may appoint an authorized representative to provide
assistance to, and advocate for the claimant. WIC 4705.
9)Establishes a state fair hearing procedures by which a service
recipient, applicant for services, or the recipient's or
applicant's parent, legal guardian, conservator or authorized
representative may request a fair hearing to challenge a
decision of a regional center or developmental center
determining that the person is ineligible for services,
denying services, or reducing, terminating or changing
services set forth in the individual's IPP.
10)Requires the information and records for a person with
developmental disabilities be kept confidential with certain
exceptions, including for cases where the person is a minor or
ward and his or her parent or guardian with access to the
records provides written permission. WIC 4514.
FISCAL EFFECT : Unknown
COMMENTS :
Need for this bill: The child welfare system seeks to protect
the safety and wellbeing of children who are at risk of, or have
experienced abuse or neglect. This includes the child's
educational needs and goals. When the parents of abused or
neglected children are found by the court to be unsuitable to
make decisions on their behalf, the court may appoint a
responsible adult to serve as the child's "education rights
holder" under California law. However, according to the author,
abused or neglected children with developmental disabilities are
not afforded the same protection, and therefore, may not have
the advocacy and authorization needed to fully access the
services and supports they are entitled to through the Lanterman
Act.
This bill seeks to create a structure, parallel to that of the
"education rights holder" for education-related decisions, for
children with developmental disabilities.
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Support: Disability Rights California writes in support of this
bill:
ÝThis bill] is a positive measure. It enables the
dependency or delinquency judge to appoint a
responsible person to be the authorized representative
for regional center matters. Historically, there has
been difficulty adequately accessing regional center
services for children and youth in dependency and
delinquency. Part of this lack of access comes not
from having a responsible persona with legal rights to
access regional center files, request individual
program plan (IPP) meetings, sign IPPs, and request
hearings.
Judges in dependency and delinquency routinely appoint
educational surrogates. However, educational
surrogates only apply to regional center services
provided to children under the age of 3 through the
Early Start program. Often, the biological parents
are not available to neither represent their children
nor sign over rights.
Suggested amendments: Staff suggests technical and clarifying
amendments to better align the language in this bill with the
author's stated intent. Specifically, these amendments seek to
reduce confusion regarding the types of "authorized
representative" set forth in statute to provide advocacy and
representation on behalf of persons with disabilities.
Under existing law, two types of "authorized representative"
exist in this context: 1) an authorized representative as
defined in WIC Section 4701.6, to provide representation in the
regional center fair hearings process, and 2) an authorized
representative appointed by the area board on developmental
disabilities to assist in making decisions for a person with
disabilities when he or she does not have another person to
provide the advocacy.
This bill seeks to expand the definition of an authorized
representative under the fair hearing process definition of an
authorized representative to include the court-appointed
decisionmaker. However, the multiple definitions and uses for
the term "authorized representative," along with the placement
of the expanded definition in a section that deals, narrowly,
SB 368
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with the fair hearing process may lead to confusion. The
following suggested amendments seek to clarify the role of the
court-appointed developmental services decisionmaker for abused
and neglected children as follows:
1)Add language to clarify the scope of the developmental
services decisionmaker's involvement in the IPP and fair
hearing processes:
If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority
to access the child's information and records pursuant to
Section 4514 (u) and act on the child's behalf for the
purposes of the individual program plan process pursuant to
Section 4646, Section 4646.5, Section 4648, the fair hearing
process described in Section 4701.6, and as set forth in the
court order.
2)Technical and conforming changes to WIC Section 361, and the
parallel section dealing with wards, WIC 726:
(5) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) or (6) of subdivision
(b) of Section 727.3, at which time, for educational
decisionmaking, the foster parent, relative caretaker, or
nonrelative extended family member as defined in Section 362.7
has the right to represent the child in educational matters
pursuant to Section 56055 of the Education Code, and for
decisions relating to developmental services, unless the court
specifies otherwise, for developmental services
decisionmaking, the foster parent, relative caregiver, or
nonrelative extended family member of the planned permanent
living arrangement has the right to represent the child in
matters related to developmental services. shall become the
authorized representative for the child pursuant to Section
4701.6 unless the court specifies otherwise in a court order.
3)Add an amendment to WIC Section 4512, pertaining to the IPP
"planning team" participants, to include the court-appointed
developmental services decisionmaker:
(j) "Planning team" means the individual with developmental
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disabilities, the parents or legally appointed guardian of a
minor consumer or the legally appointed conservator of an
adult consumer, the authorized representative, including those
appointed pursuant to subdivision (d) of Section 4548 and
subdivision (e) of Section 4705, one or more regional center
representatives, including the designated regional center
service coordinator pursuant to subdivision (b) of Section
4640.7, any individual, including a service provider, invited
by the consumer, the parents or legally appointed guardian of
a minor consumer or the legally appointed conservator of an
adult consumer, or the authorized representative, including
those appointed pursuant to subdivision (d) of Section 4548
and subdivision (e) of Section 4705 . and including a minor,
dependent or ward's court-appointed developmental services
decisionmaker appointed pursuant to Section 319, Section 361
or Section 726.
4)Addition of a new subparagraph (u) under WIC Section 4514,
which will clarify the author's intent by explicitly providing
the court-appointed developmental services decisionmaker
access to the minor, dependent, or ward's regional center
records. (Currently, this bill grants an authorized
representative the authority to provide access to a
dependent's regional center records, in writing.):
(u) To the person appointed the developmental services
decisionmaker for a minor, dependent or ward pursuant to
Section 319, Section 361 or Section 726.
5)Addition of the court-appointed developmental services
decisionmaker to the section granting access to the minor's
records for the purposes of the fair hearing process:
4726. Notwithstanding the provisions of Section 5328, access
to records shall be provided to an applicant for, or recipient
of, services or to his or her authorized representative ,
including the person appointed as a developmental services
decisionmaker pursuant to Section 319, Section 361 or Section
726 for purposes of the appeal procedure under this chapter.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Probation Parole and correctional Association (CPPCA)
Youth Law Center
Children's Law Center of Los Angeles (CLC)
Disability Rights California
County Welfare Directors Association of California (CWDA)
Opposition
None on file.
Analysis Prepared by : Michelle Doty Cabrera / HUM. S. / (916)
319-2089