BILL NUMBER: SB 382 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 14, 2011
INTRODUCED BY Senator Liu
(Principal coauthor: Senator Emmerson)
( Coauthor: Assembly Member
Jeffries )
FEBRUARY 15, 2011
An act to amend Sections 4629 and 4648 of, and to add Sections
4639.1, 4639.2, 4639.3, and 4639.4 to, the Welfare and Institutions
Code, relating to developmental services.
LEGISLATIVE COUNSEL'S DIGEST
SB 382, as amended, Liu. Developmental services: regional centers:
complaints.
The Lanterman Developmental Disabilities Services Act authorizes
the State Department of Developmental Services to contract with
regional centers to provide support and services
and supports to individuals with developmental
disabilities. That law authorizes the department to enter into 5-year
contracts with regional centers, subject to an annual appropriation
of funds by the Legislature. The act requires the contracts to
specify that each regional center include annual performance
objectives that will meet certain standards and allow
allows the department to specify additional
areas of support that require development or enhancement. The act
requires corrective action if a regional center fails to meet the
performance standards.
This bill would require the department to specify additional
areas of support requiring development or enhancement, as specified.
The bill would also require the department to make available
on its Internet Web site each regional center's current contract, as
well as the annual assessment of the regional center's success in
achieving the previous year's objectives.
This bill would prohibit a regional center from
retaliating against a regional center vendor, applicant for
vendorization, or a regional center employee for filing a complaint
with the regional center, the department, or any other governmental
entity about the regional center, its board members, or its
employees. The bill would establish a process for the reporting and
investigation of claims of retaliation and would require the regional
center to report allegations of retaliation to the department
require the department to develop processes and
procedures, as specified, to address issues of retaliation against
regional center employees and vendors and would require those
processes and procedures to be included in the regional center
standard agreement contracts .
This bill would require a regional center to report annually to
the department the total number of complaints it has received within
a fiscal year and would require the department to report the
information to the Legislature, as specified. The bill would require
the department, in addition to all other audits and reviews, at least
once every 36 months, to conduct a review of each regional center's
compliance with the procedures for developing individual program
plans, as specified, and to utilize the results of the review to
develop annual performance objectives. The bill would also, beginning
July 1, 2013, require each regional center to post on its Internet
Web site a directory of vendorized service providers, and negotiated
rates, if applicable, and to update that list every 6 months
annually .
The act provides that the regional centers purchase needed
services for individuals with developmental disabilities through
approved service providers that are identified through a process of
vendorization. The act requires services and supports of comparable
quality that are offered at different costs by different providers
o to be assessed and the lower cost
provider used unless specified determinations are made.
This bill would require the determination of comparability to be
made by the program planning team and to include specified criteria.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4629 of the Welfare and Institutions Code is
amended to read:
4629. (a) The state shall enter into five-year contracts with
regional centers, subject to the annual appropriation of funds by the
Legislature.
(b) The contracts shall include a provision requiring each
regional center to render services in accordance with applicable
state laws and regulations.
(c) (1) The contracts shall include annual performance objectives
that shall do both of the following:
(A) Be specific, measurable, and designed to do all of the
following:
(i) Assist consumers to achieve life quality outcomes.
(ii) Achieve meaningful progress above the current baselines.
(iii) Develop services and supports identified as necessary to
meet identified needs.
(B) Be developed through a public process as described in the
department's guidelines that includes, but is not limited to, all of
the following:
(i) Providing information, in an understandable form, to the
community about regional center services and supports, including
budget information and baseline data on services and supports and
regional center operations.
(ii) Conducting a public meeting where participants can provide
input on performance objectives and using focus groups or surveys to
collect information from the community.
(iii) Circulating a draft of the performance objectives to the
community for input prior to presentation at a regional center board
meeting where additional public input will be taken and considered
before adoption of the objectives.
(2) In addition to the performance objectives developed pursuant
to this section, the department shall specify in the performance
contract additional areas of service and support that require
development or enhancement by the regional center, including, but not
limited to, the requirements of subdivision (c) of Section
4639.7 4639.2 and subdivision (d) of Section
4639.8 4639.3 . In determining those
areas, the department shall consider public comments from individuals
and organizations within the regional center catchment area, the
subject and results of fair hearing decisions, the distribution of
services and supports within the regional center catchment area, and
review how the availability of services and supports in the regional
area catchment area compares with other regional center catchment
areas.
(d) Each contract with a regional center shall specify steps to be
taken to ensure contract compliance, including, but not limited to,
all of the following:
(1) Incentives that encourage regional centers to meet or exceed
performance standards.
(2) Levels of probationary status for regional centers that do not
meet, or are at risk of not meeting, performance standards. The
department shall require that corrective action be taken by any
regional center which is placed on probation. Corrective action may
include, but is not limited to, mandated consultation with designated
representatives of the Association of Regional Center Agencies or a
management team designated by the department, or both. The department
shall establish the specific timeline for the implementation of
corrective action and monitor its implementation. When a regional
center is placed on probation, the department shall provide the
appropriate area board with a copy of the correction plan, timeline,
and any other action taken by the department relating to the
probationary status of the regional center.
(e) In order to evaluate the regional center's compliance with its
contract performance objectives and legal obligations related to
those objectives, the department shall do both of the following:
(1) Annually assess each regional center's achievement of its
previous year's objectives and make the assessment, including
baseline data and performance objectives of the individual regional
centers, available to the public. The department may make a special
commendation of the regional centers that have best engaged the
community in the development of contract performance objectives and
have made the most meaningful progress in meeting or exceeding
contract performance objectives.
(2) Monitor the activities of the regional center to ensure
compliance with the provisions of its contracts, including, but not
limited to, reviewing all of the following:
(A) The regional center's public process for compliance with the
procedures sets set forth in paragraph
(2) of subdivision (c).
(B) Each regional center's performance objectives for compliance
with the criteria set forth in paragraph (1) of subdivision (c).
(C) Any public comments on regional center performance objectives
sent to the department or to the regional centers, and soliciting
public input on the public process and final performance standards.
(f) The renewal of each contract shall be contingent upon
compliance with the contract including, but not limited to, the
performance objectives, as determined through the department's
evaluation.
(g) The department shall make available on its Internet Web site
each regional center's current contract, as well as the annual
assessment of the regional center's success in achieving the previous
year's objectives.
SEC. 2. Section 4639.1 is added to the Welfare and Institutions
Code, to read:
4639.1. (a) A regional center shall not retaliate against a
regional center vendor, applicant for vendorization, or a regional
center employee for filing a complaint with the regional center, the
department, or any other governmental entity about the regional
center, its board members, or its employees.
(b) A regional center shall report all allegations of retaliation
to the department.
(c) A regional center vendor, applicant for vendorization, or a
regional center employee may report retaliation directly to the
department. Upon receiving the allegation of retaliation, the
department shall investigate. If, after investigating, the department
finds that retaliation has occurred, the department shall send a
copy of its investigative report to the regional center and may place
the regional center on probationary status, pursuant to Section
4629. If more than one instance of retaliation is found within a
five-year contract period, the department shall place the regional
center on probationary status. Failure to comply with corrective
actions shall be considered a violation of the contract and grounds
for contract termination, at the department's discretion. The
department shall identify and communicate to regional centers through
a directive as to what constitutes a single instance of retaliation.
(d) The department shall report the outcome of investigations
undertaken pursuant to subdivision (c) to the Legislature. If the
department reasonably believes that the investigative report may
involve criminal actions, the department shall also report this
information to the Attorney General.
(e) This section shall not be deemed to diminish the rights,
privileges, or remedies of an employee under any other federal or
state law, or under any employment contract or collective bargaining
agreement. This section shall not allow the release of information
protected under Section 4514.
4639.1. (a) No later than July 1, 2012, the State Department of
Developmental Services shall develop processes and procedures to
address issues of retaliation against regional center employees and
vendors. These processes and procedures shall be included in the
regional center standard agreement contract after development. At a
minimum, the processes and procedures shall include the following:
(1) For the purposes of the contract, a definition of
"retaliation."
(2) A requirement for the regional center to report all
allegations of retaliation to its board members and to the
department, although the department shall not be required to
investigate the allegation unless received directly from the party
making the allegation.
(3) A process for corrective action by the regional center and a
process for verification of corrective action by the department.
(4) (A) A provision of notice to employees and vendors, made by
the regional center, of the processes and procedures that are
developed, detailing to whom they can make a complaint of retaliation
and who will investigate the complaint.
(B) The provision of notice shall specify that the department will
not investigate a complaint of retaliation unless the complainant
directly files that complaint with the department. The provision of
notice shall also specify the department's policy on responding to
whistleblower complaints and the right to make a complaint directly
to the department.
(C) The provision of notice may be disseminated in the same manner
as other notices disseminated to stakeholders concerning their
rights when filing a complaint.
(b) The department shall develop the processes and procedures
described in subdivision (a) in conjunction with the Association of
Regional Center Agencies (ARCA), and in consultation with other
stakeholder groups representing employees, consumers and their
families, and vendors.
SEC. 3. Section 4639.2 is added to the Welfare and Institutions
Code, to read:
4639.2. (a) A regional center shall report to annually
annually to the department the total number of
complaints it has received within a fiscal year, including the method
in which the complaint was received, the type of complaint, the
number of days pending to resolution, and the disposition of each
complaint.
(b) The department shall report annually to the Legislature the
total volume, method, type of complaint, days pending, and
disposition of complaints for each regional center that the regional
center has received in a fiscal year. The department shall also
provide to the Legislature the total volume, method, type of
complaint, days pending, and disposition of complaints for each
regional center that the department has directly received in a fiscal
year. The department shall ascertain to the best of its ability
which complaints have been filed with both the regional center and
the department to avoid duplicate counting of complaints.
(c) The department shall use the complaint data gathered pursuant
to this subdivision, accounting for population size, service needs,
and availability, to develop annual performance objectives for each
regional center that will improve each regional center's resolution
of complaints, where necessary.
SEC. 4. Section 4639.3 is added to the Welfare and Institutions
Code, to read:
4639.3. (a) In addition to all other audits and reviews the
department conducts of regional centers, the department shall conduct
a review of each regional center's compliance with the procedures
for developing individual program plans required by law and
regulation. The review shall consist of an evaluation of whether the
regional center has appropriate individual program plan procedures in
place, as well as a sampling of individual program plans to
determine whether procedures are being followed. The regional center
shall have the duty of demonstrating compliance with respect to the
development and ongoing requirements of individual program plans. The
department shall issue necessary guidance to aid regional centers in
retaining or producing documentation that constitutes demonstration
of compliance.
(b) The department shall include this review in any fiscal audit,
Medicaid waiver review, or the follow up to an audit or review, but
the department shall conduct the review no less than once every 36
months. If a regional center has been found to be noncompliant with
state law or regulation, with respect to the development or ongoing
requirements of individual program plans, the department shall
monitor the regional center as necessary to ensure that corrective
actions are taken by the regional center.
(c) The department shall utilize the results of this review to
develop annual performance objectives for each regional center that
will improve each regional center's compliance with state law and
regulation with respect to the development and ongoing requirements
of individual program plans.
(d) The department shall include the results of this review in its
published annual review, pursuant to subdivision (g) of Section
4629.
SEC. 5. Section 4639.4 is added to the Welfare and Institutions
Code, to read:
4639.4. In order to provide consumers and their families with
information about service providers, and to provide greater
transparency in the rates paid to service providers, beginning July
1, 2013, each regional center shall publish a directory of vendorized
service providers on its Internet Web site, listing them by category
of service. For vendors who have negotiated rates, the negotiated
rate shall be published. The directory of service providers and their
rates shall be updated every six months
annually .
SEC. 6. Section 4648 of the Welfare and Institutions Code is
amended to read:
4648. In order to achieve the stated objectives of a consumer's
individual program plan, the regional center shall conduct
activities, including, but not limited to, all of the following:
(a) Securing needed services and supports.
(1) It is the intent of the Legislature that services and supports
assist individuals with developmental disabilities in achieving the
greatest self-sufficiency possible and in exercising personal
choices. The regional center shall secure services and supports that
meet the needs of the consumer, as determined in the consumer's
individual program plan, and within the context of the individual
program plan, the planning team shall give highest preference to
those services and supports which would allow minors with
developmental disabilities to live with their families, adult persons
with developmental disabilities to live as independently as possible
in the community, and that allow all consumers to interact with
persons without disabilities in positive, meaningful ways.
(2) In implementing individual program plans, regional centers,
through the planning team, shall first consider services and supports
in natural community, home, work, and recreational settings.
Services and supports shall be flexible and individually tailored to
the consumer and, where appropriate, his or her family.
(3) A regional center may, pursuant to vendorization or a
contract, purchase services or supports for a consumer from any
individual or agency which the regional center and consumer or, where
appropriate, his or her parents, legal guardian, or conservator, or
authorized representatives, determines will best accomplish all or
any part of that consumer's program plan.
(A) Vendorization or contracting is the process for
identification, selection, and utilization of service vendors or
contractors, based on the qualifications and other requirements
necessary in order to provide the service.
(B) A regional center may reimburse an individual or agency for
services or supports provided to a regional center consumer if the
individual or agency has a rate of payment for vendored or contracted
services established by the department, pursuant to this division,
and is providing services pursuant to an emergency vendorization or
has completed the vendorization procedures or has entered into a
contract with the regional center and continues to comply with the
vendorization or contracting requirements. The director shall adopt
regulations governing the vendorization process to be utilized by the
department, regional centers, vendors and the individual or agency
requesting vendorization.
(C) Regulations shall include, but not be limited to: the vendor
application process, and the basis for accepting or denying an
application; the qualification and requirements for each category of
services that may be provided to a regional center consumer through a
vendor; requirements for emergency vendorization; procedures for
termination of vendorization; the procedure for an individual or an
agency to appeal any vendorization decision made by the department or
regional center.
(D) A regional center may vendorize a licensed facility for
exclusive services to persons with developmental disabilities at a
capacity equal to or less than the facility's licensed capacity. A
facility already licensed on January 1, 1999, shall continue to be
vendorized at their full licensed capacity until the facility agrees
to vendorization at a reduced capacity.
(E) Effective July 1, 2009, notwithstanding any other provision of
law or regulation to the contrary, a regional center shall not newly
vendor a State Department of Social Services licensed 24-hour
residential care facility with a licensed capacity of 16 or more
beds, unless the facility qualifies for receipt of federal funds
under the Medicaid Program.
(4) Notwithstanding subparagraph (B), a regional center may
contract or issue a voucher for services and supports provided to a
consumer or family at a cost not to exceed the maximum rate of
payment for that service or support established by the department. If
a rate has not been established by the department, the regional
center may, for an interim period, contract for a specified service
or support with, and establish a rate of payment for, any provider of
the service or support necessary to implement a consumer's
individual program plan. Contracts may be negotiated for a period of
up to three years, with annual review and subject to the availability
of funds.
(5) In order to ensure the maximum flexibility and availability of
appropriate services and supports for persons with developmental
disabilities, the department shall establish and maintain an
equitable system of payment to providers of services and supports
identified as necessary to the implementation of a consumers'
individual program plan. The system of payment shall include
provision for a rate to ensure that the provider can meet the special
needs of consumers and provide quality services and supports in the
least restrictive setting as required by law.
(6) The regional center and the consumer, or where appropriate,
his or her parents, legal guardian, conservator, or authorized
representative, including those appointed pursuant to subdivision (d)
of Section 4548 or subdivision (e) of Section 4705, shall, pursuant
to the individual program plan, consider all of the following when
selecting a provider of consumer services and supports:
(A) A provider's ability to deliver quality services or supports
which can accomplish all or part of the consumer's individual program
plan.
(B) A provider's success in achieving the objectives set forth in
the individual program plan.
(C) Where appropriate, the existence of licensing, accreditation,
or professional certification.
(D) (i) The cost of providing services or supports of comparable
quality by different providers, if available, shall be reviewed, and
the least costly available provider of comparable service, including
the cost of transportation, who is able to accomplish all or part of
the consumer's individual program plan, consistent with the
particular needs of the consumer and family as identified in the
individual program plan, shall be selected. In determining the least
costly provider, the availability of federal financial participation
shall be considered.
(ii) The consumer shall not be required to use the least costly
provider if it will result in the consumer moving from an existing
provider of services or supports to more restrictive or less
integrated services or supports. The determination of comparability
shall be made by the individual program plan planning team and shall
include, but not be limited to, the criteria in subparagraphs (A),
(B), (C), and (E).
(E) The consumer's or, where appropriate, the parents, legal
guardian, or conservator of a consumer's choice of providers.
(7) No service or support provided by any agency or individual
shall be continued unless the consumer or, where appropriate, his or
her parents, legal guardian, or conservator, or authorized
representative, including those appointed pursuant to subdivision (d)
of Section 4548 or subdivision (e) of Section 4705, is satisfied and
the regional center and the consumer or, when appropriate, the
person's parents or legal guardian or conservator agree that planned
services and supports have been provided, and reasonable progress
toward objectives have been made.
(8) Regional center funds shall not be used to supplant the budget
of any agency which has a legal responsibility to serve all members
of the general public and is receiving public funds for providing
those services.
(9) (A) A regional center may, directly or through an agency
acting on behalf of the center, provide placement in, purchase of, or
follow-along services to persons with developmental disabilities in,
appropriate community living arrangements, including, but not
limited to, support service for consumers in homes they own or lease,
foster family placements, health care facilities, and licensed
community care facilities. In considering appropriate placement
alternatives for children with developmental disabilities, approval
by the child's parent or guardian shall be obtained before placement
is made.
(B) Effective July 1, 2012, notwithstanding any other provision of
law or regulation to the contrary, a regional center shall not
purchase residential services from a State Department of Social
Services licensed 24-hour residential care facility with a licensed
capacity of 16 or more beds. This prohibition on regional center
purchase of residential services shall not apply to either of the
following:
(i) A residential facility with a licensed capacity of 16 or more
beds that has been approved to participate in the department's Home
and Community Based Services Waiver or another existing waiver
program or certified to participate in the Medi-Cal program.
(ii) A residential facility service provider that has a written
agreement and specific plan prior to July 1, 2012, with the vendoring
regional center to downsize the existing facility by transitioning
its residential services to living arrangements of 15 beds or less or
restructure the large facility to meet federal Medicaid eligibility
requirements on or before June 30, 2013.
(C) Each person with developmental disabilities placed by the
regional center in a community living arrangement shall have the
rights specified in this division. These rights shall be brought to
the person's attention by any means necessary to reasonably
communicate these rights to each resident, provided that, at a
minimum, the Director of Developmental Services prepare, provide, and
require to be clearly posted in all residential facilities and day
programs a poster using simplified language and pictures that is
designed to be more understandable by persons with cognitive
disabilities and that the rights information shall also be available
through the regional center to each residential facility and day
program in alternative formats, including, but not limited to, other
languages, braille, and audio tapes, when necessary to meet the
communication needs of consumers.
(D) Consumers are eligible to receive supplemental services
including, but not limited to, additional staffing, pursuant to the
process described in subdivision (d) of Section 4646. Necessary
additional staffing that is not specifically included in the rates
paid to the service provider may be purchased by the regional center
if the additional staff are in excess of the amount required by
regulation and the individual's planning team determines the
additional services are consistent with the provisions of the
individual program plan. Additional staff should be periodically
reviewed by the planning team for consistency with the individual
program plan objectives in order to determine if continued use of the
additional staff is necessary and appropriate and if the service is
producing outcomes consistent with the individual program plan.
Regional centers shall monitor programs to ensure that the additional
staff is being provided and utilized appropriately.
(10) Emergency and crisis intervention services including, but not
limited to, mental health services and behavior modification
services, may be provided, as needed, to maintain persons with
developmental disabilities in the living arrangement of their own
choice. Crisis services shall first be provided without disrupting a
person's living arrangement. If crisis intervention services are
unsuccessful, emergency housing shall be available in the person's
home community. If dislocation cannot be avoided, every effort shall
be made to return the person to his or her living arrangement of
choice, with all necessary supports, as soon as possible.
(11) Among other service and support options, planning teams shall
consider the use of paid roommates or neighbors, personal
assistance, technical and financial assistance, and all other service
and support options which would result in greater self-sufficiency
for the consumer and cost-effectiveness to the state.
(12) When facilitation as specified in an individual program plan
requires the services of an individual, the facilitator shall be of
the consumer's choosing.
(13) The community support may be provided to assist individuals
with developmental disabilities to fully participate in community and
civic life, including, but not limited to, programs, services, work
opportunities, business, and activities available to persons without
disabilities. This facilitation shall include, but not be limited to,
any of the following:
(A) Outreach and education to programs and services within the
community.
(B) Direct support to individuals which would enable them to more
fully participate in their community.
(C) Developing unpaid natural supports when possible.
(14) Other services and supports may be provided as set forth in
Sections 4685, 4686, 4687, 4688, and 4689, when necessary.
(15) Notwithstanding any other provision of law or
regulation to the contrary, effective July 1, 2009, regional centers
shall not purchase experimental treatments, therapeutic services, or
devices that have not been clinically determined or scientifically
proven to be effective or safe or for which risks and complications
are unknown. Experimental treatments or therapeutic services include
experimental medical or nutritional therapy when the use of the
product for that purpose is not a general physician practice. For
regional center consumers receiving these services as part of their
individual program plan (IPP) or individualized family service plan
(IFSP) on July 1, 2009, this prohibition shall apply on August 1,
2009.
(b) (1) Advocacy for, and protection of, the civil, legal, and
service rights of persons with developmental disabilities as
established in this division.
(2) Whenever the advocacy efforts of a regional center to secure
or protect the civil, legal, or service rights of any of its
consumers prove ineffective, the regional center or the person with
developmental disabilities or his or her parents, legal guardian, or
other representative may request the area board to initiate action
under the provisions defining area board advocacy functions
established in this division.
(c) The regional center may assist consumers and families
directly, or through a provider, in identifying and building circles
of support within the community.
(d) In order to increase the quality of community services and
protect consumers, the regional center shall, when appropriate, take
either of the following actions:
(1) Identify services and supports that are ineffective or of poor
quality and provide or secure consultation, training, or technical
assistance services for any agency or individual provider to assist
that agency or individual provider in upgrading the quality of
services or supports.
(2) Identify providers of services or supports that may not be in
compliance with local, state, and federal statutes and regulations
and notify the appropriate licensing or regulatory authority, or
request the area board to investigate the possible noncompliance.
(e) When necessary to expand the availability of needed services
of good quality, a regional center may take actions that include, but
are not limited to, the following:
(1) Soliciting an individual or agency by requests for proposals
or other means, to provide needed services or supports not presently
available.
(2) Requesting funds from the Program Development Fund, pursuant
to Section 4677, or community placement plan funds designated from
that fund, to reimburse the startup costs needed to initiate a new
program of services and supports.
(3) Using creative and innovative service delivery models,
including, but not limited to, natural supports.
(f) Except in emergency situations, a regional center shall not
provide direct treatment and therapeutic services, but shall utilize
appropriate public and private community agencies and service
providers to obtain those services for its consumers.
(g) Where there are identified gaps in the system of services and
supports or where there are identified consumers for whom no provider
will provide services and supports contained in his or her
individual program plan, the department may provide the services and
supports directly.
(h) At least annually, regional centers shall provide the
consumer, his or her parents, legal guardian, conservator, or
authorized representative a statement of services and supports the
regional center purchased for the purpose of ensuring that they are
delivered. The statement shall include the type, unit, month, and
cost of services and supports purchased.