BILL ANALYSIS Ó SB 368 Page 1 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. SB 368 Page 2 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. SB 368 Page 3 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. SB 368 Page 4 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. SB 368 Page 5 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 Page 6 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 SB 368 Page 7 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 : SB 368 Page 8 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