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, 







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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