BILL ANALYSIS Ó AB 2809 Page 1 Date of Hearing: April 26, 2016 ASSEMBLY COMMITTEE ON HUMAN SERVICES Susan Bonilla, Chair AB 2809 (Rodriguez) - As Amended March 18, 2016 SUBJECT: Developmental services: regional centers SUMMARY: Requires regional centers to pay for medical and dental services during specified periods and to provide certain information in the native language of consumers and other designated individuals and further, requires that parental hardships be considered when determining the extent of parent participation for certain services. Specifically, this bill: 1)Requires a regional center, at the beginning of each individual program plan (IPP) meeting, to provide a consumer and, when appropriate, other specified individuals, a list of services provided by the regional center and information about the appeal and complaint process in his or her native language. 2)Requires a regional center, at the end of an IPP meeting, to provide a consumer and, when appropriate, other specified individuals, a written list of agreed-upon services and supports, including the amount and anticipated start date, and AB 2809 Page 2 a list of any services and supports for which final agreement has not been reached and for which there will be a subsequent program plan meeting, as specified. 3)Requires a regional center to provide the statement of services and supports purchased for a consumer, as specified, in the native language of the consumer and/or his or her parents, legal guardian, conservator, or authorized representative, and further requires this statement to be provided, in addition to the currently-required annual notice, at the time of development, scheduled review, or modification of a consumer's IPP or individualized family service plan (IFSP). 4)Requires a regional center, at the time of development, scheduled review, or modification of a consumer's IPP or IFSP, to provide the consumer and/or other individuals with a written statement and examples of pertinent documentation in an understandable form and in the appropriate native language(s), as specified, regarding each of the following: a) Acquisition of transportation services for a minor child, as specified; b) Exemptions to the limitations on purchase of camping services, social recreation activities, educational services, and nonmedical therapies, as specified; c) Exemptions to the limitations on purchase of certain services for consumers ages 18 to 22 years old, as specified; and d) Exemptions to the limitations on purchase of respite AB 2809 Page 3 services, as specified. 5)Requires the regional center to accept documentation demonstrating that the family of a child is unable to provide transportation for that child in any written form, including in the native language of the consumer or other individuals, as specified. 6)Requires an IPP planning team to, when making a determination regarding exemptions for the purchase of certain services for consumers ages 18 to 22, consider the standard requiring regional centers to provide independent living skills services to an adult consumer, consistent with his or her IPP, that provide the consumer with functional skills training that enables him or her to acquire or maintain skills to live independently or achieve greater independence, as specified. 7)Requires regional centers to pay for medical or dental services during the following periods: a) While insurance coverage is being pursued, but before a denial is made; b) Pending final decision on an administrative appeal, as specified; and c) Until the commencement of Medi-Cal, private insurance, or a health care service plan. 8)Requires a regional center, at the time of development, scheduled review, or modification of a consumer's IPP or IFSP, to provide the consumer and/or other individuals with a AB 2809 Page 4 written statement and examples of pertinent documentation in an understandable form and in the appropriate native language(s), as specified, regarding acquisition of coverage of medical and dental services during certain periods, as specified. 9)Requires the IPP or IFSP planning team, when determining the extent of parent participation, to consider any relevant hardships suffered by a parent or parents that may constitute a barrier to the consumer accessing applied behavioral analysis (ABA) or intensive behavioral intervention services and that such hardships be documented in the IPP or IFSP and be reviewed annually, as specified. Further, requires the regional center, if it determines that the extent of parent participation should be adjusted due to a change in circumstances, to provide adequate notice, as specified. 10)Requires a regional center, at the time of development, scheduled review, or modification of a consumer's IPP or IFSP, to provide the consumer and/or other individuals with a written statement and examples of pertinent documentation in an understandable form and in the appropriate native language(s), as specified, regarding the process for determining the extent of parent participation and demonstration of hardships. EXISTING LAW: 1)Establishes an entitlement to services for individuals with developmental disabilities under the Lanterman Developmental Disabilities Services Act (Lanterman Act). (WIC 4500 et seq.) 2)Grants all individuals with developmental disabilities, among AB 2809 Page 5 all other rights and responsibilities established for any individual by the United States Constitution and laws and the California Constitution and laws, the right to treatment and habilitation services and supports in the least restrictive environment. (WIC 4502) 3)Establishes a system of 21 nonprofit regional centers throughout the state to identify needs and coordinate services for eligible individuals with developmental disabilities and requires the Department of Developmental Services (DDS) to contract with regional centers to provide case management services and arrange for or purchase services that meet the needs of individuals with developmental disabilities, as defined. (WIC 4620 et seq.) 4)Requires the development of an IPP for each regional center consumer, which specifies services to be provided to the consumer, based on his or her individualized needs determination and preferences, and defines that planning process as the vehicle to ensure that services and supports are customized to meet the needs of consumers who are served by regional centers. (WIC 4512) 5)Requires the IPP planning processes to include: a) A statement of the individual's goals and objectives, a schedule of the type and nature of services to be provided and other information and considerations, as specified; b) Review and modification, as necessary, by the regional center's planning team no less frequently than every three AB 2809 Page 6 years; and c) Statewide training and review of the IPP plan creation, as specified. (WIC 4646.5) 1)Prohibits discrimination against individuals in protected classes, including national origin and ethnic group identification, for purposes of providing full and equal access to benefits or programs that are operated or funded by the state. (GOV 11135 et seq.) 2)Places various requirements on regional centers to communicate and provide certain written materials in a consumer's and/or family's or other designated individual's native language, as specified. (GOV 95020 (g); WIC 4642 (b), 4643 (d), 4646 (h)) 3)Defines "threshold language" to mean a language that has been identified as the primary language, as specified, of 3,000 beneficiaries or 5% of the beneficiary population, whichever is lower, in an identified geographic area. (9 CCR § 1810.410 (a)(3)) 4)Requires each regional center to offer, and upon request provide, a written copy of the IPP to the consumer and, when appropriate, to his or her parents, legal guardian or conservator, or authorized representative within 45 days of his, her, or their request in a threshold language, as defined by paragraph (3) of subdivision (a) of Section 1810.410 of Title 9 of the California Code of Regulations. (WIC 4646.5 (a)(5)) AB 2809 Page 7 5) Provides for exemptions to certain service limitations, as specified, related to: transportation for minors; camping services, social recreation activities, educational services, and nonmedical therapies; certain services for consumers ages 18 to 22 years old; and respite services. (WIC 4648.35, 4648.5, 4648.55, 4686.5) 6)Authorizes regional centers to pay for medical or dental services pending pursuit or appeal with Medi-Cal, private insurance, or other health care plan. (WIC 4659 (d)) 7)Defines "parent participation" for purposes of ABA or intensive behavioral intervention services to include, but not be limited to: completion of group instruction on the basics of behavior intervention; implementation of intervention strategies, according to the intervention plan; collection of data on behavioral strategies and submission of that data, as specified; and participation in any needed clinical meetings. (WIC 4686.2 (d)(4)) 8)Requires any vendor who provides ABA or intensive behavioral intervention services to design an intervention plan that includes, among other things, the parent participation needed to achieve the consumer's goals and objectives as set forth in the IPP. (WIC 4686.2 (a)(2)) 9)Requires regional centers to only purchase ABA or intensive behavioral intervention services when the parent(s) of minor consumers receiving services participate in the intervention plan for the consumers. (WIC 4686.2 (b)(2)) FISCAL EFFECT: Unknown. AB 2809 Page 8 COMMENTS: Developmental services: The Lanterman Act (WIC § 4500 et seq.) guides the provision of services and supports for Californians with developmental disabilities. Each individual under the Act, typically referred to as a "consumer," is legally entitled to treatment and habilitation services and supports in the least restrictive environment. Lanterman Act services are designed to enable all consumers to live more independent and productive lives in the community. The term "developmental disability" means a disability that originates before an individual attains 18 years of age, is expected to continue indefinitely, and constitutes a substantial disability for that individual. It includes intellectual disabilities, cerebral palsy, epilepsy, and autism spectrum disorders (ASD). Other developmental disabilities are those disabling conditions similar to an intellectual disability that require treatment (i.e., care and management) similar to that required by individuals with an intellectual disability. Direct responsibility for implementation of the Lanterman Act service system is shared by the Department of Developmental Services (DDS) and 21 regional centers, which are private nonprofit entities, established pursuant to the Lanterman Act, that contract with DDS to carry out many of the state's responsibilities under the Act. The 21 regional centers serve approximately 290,000 consumers, providing services such as residential placements, supported living services, respite care, transportation, day treatment programs, work support programs, and various social and therapeutic activities. Approximately AB 2809 Page 9 1,005 consumers reside at one of California's three Developmental Centers-and one state-operated, specialized community facility-which provide 24-hour habilitation and medical and social treatment services. Services provided to people with developmental disabilities are outlined in an IPP, which is developed by the IPP team-including, among others, the consumer, his or her legally authorized representative, and one or more regional center representatives-and is based on the consumer's needs and choices. The Lanterman Act requires that the IPP promote community integration and maximize opportunities for each consumer to develop relationships, be part of community life, increase control over his or her life, and acquire increasingly positive roles in the community. The IPP must give the highest preference to those services and supports that allow minors to live with their families and adults to live as independently as possible in the community. In July of 2009, a number of state budget cuts were adopted in response to the budget shortfall resulting in large part from the national economic crisis. DDS had to make a number of cuts at this time; the department worked with stakeholders to identify over $300 million in General Fund savings. Examples of some of the many actions taken include: limiting transportation for minor children to when the family provides documentation that they cannot provide transportation themselves; suspending the purchase of camping services, certain social recreation activities, educational services, and non-medical therapies, except in cases where exemptions are granted; restricting the amount of respite services that may be purchased, except in AB 2809 Page 10 cases where exemptions are granted; and providing for a standard that parent participation is critical to the success of the intervention plan and requiring regional centers to purchase ABA or intensive behavioral intervention services only when the parent agrees to participate in the intervention plan. Threshold languages: Including English, 207 languages are spoken in the state. The California Code of Regulations (9 CCR § 1810.410 (a)(3)) defines "threshold language" to mean a language that has been identified as the primary language, as specified, of 3,000 beneficiaries or 5% of the beneficiary population, whichever is lower, in an identified geographic area. A 2015 Budget Trailer bill (SB 82 (Senate Committee on Budget and Fiscal Review), Chapter 23, Statutes of 2015), among other things, required each regional center to offer, and upon request provide, a written copy of the IPP to the consumer and, when appropriate, his or her parents, legal guardian or conservator, or authorized representative within 45 days of the request in a threshold language. For each regional center catchment area, the threshold languages are defined by the county or counties served by that regional center. Below are the threshold languages (and the percentage of the population speaking that language as their primary language) for a sample of California counties, as of May 2014: Alameda County: Spanish (24.5%), Cantonese (5.8%), Vietnamese (2.7%), Mandarin (1.5%) AB 2809 Page 11 Contra Costa County: Spanish (29.1%) Kern County: Spanish (34%) Los Angeles County: Spanish (42%), Armenian (2.3%), Cantonese (1.1%), Korean (1%), Vietnamese (0.9%), Mandarin (0.9%), Farsi (0.5%), Tagalog (0.4%), Russian (0.4%), Cambodian (0.3%), Other Chinese (0.3%), Arabic (0.2%) Monterey County: Spanish (58.5%) San Diego County: Spanish (32.3%), Arabic (2.8%), Vietnamese (1.9%), Tagalog (1.2%) AB 2809 Page 12 Santa Cruz County: Spanish (48.8%) Solano County: Spanish (22.7%) Recent special session actions: The Governor convened a special legislative session in June 2015 to address, among other things, funding rate increases for community service providers of services for individuals with developmental disabilities. One result of that special session was the passage of ABX2 1 (Thurmond), Chapter 3, Statutes of 2016, signed by the Governor on March 1 of this year, which appropriated $287 million General Fund to regional centers and community services providers in 2016-17 in additional to leveraging an estimated $186 million in federal funding. Approximately 60% of the General Fund spending is marked for rate increases to go towards salaries and benefits for staff that provide direct care to consumers. Among other spending augmentations, ABX2 1 also included a fixed AB 2809 Page 13 appropriation of $11 million to promote equity and reduce disparities in the purchase of services, to be used for activities such as cultural competency training, parent education, and supporting bilingual regional center staff. Need for this bill: According to the author, "For people with developmental disabilities, health disparities can result in significant health, social, and economic consequences. California's diverse language and ethnic communities account for about 60% of its population. In recent years, access to developmental services has been significantly limited due to severe budget cuts, with minority populations particularly adversely affected. In 2011, a Los Angeles Times series reported significant disparities in the funding of developmental services based on race, ethnicity, and language. Consumers and family members who are limited English proficient have the right to culturally and linguistically competent information about accessing developmental services available through regional centers, including information on the process for obtaining certain services through statutory exemptions and meeting other affirmative requirements. Additionally, the level of parent participation required to access intensive behavioral intervention services is often too burdensome to meet for some families who are low-income and/or who are limited English proficient, and the law should provide for some flexibility in authorizing for these services by accounting for hardship factors." Staff comments: Ensuring that consumers of services for individuals with developmental disabilities receive communications in the appropriate languages is an important goal. Steps in recent years - including the passage SB 555 (Correa), Chapter 685, Statutes of 2013 and SB 82 (Senate Committee on Budget and Fiscal Review), Chapter 23, Statutes of 2015 - have made headway toward this goal. This bill seeks to provide additional materials in consumers', and their families' and other designated individuals', native languages. With 206 AB 2809 Page 14 languages currently spoken in California in addition to English, this could place significant strain on resources and substantially heighten related administrative duties for regional centers - all at a time when, in the wake the passage of the special session bill (ABX2 1 (Thurmond), Chapter 3, Statutes of 2016), attention is being directed towards how to best use augmented funds to the greatest benefit for consumers. Additionally, requiring regional centers to pay for medical and dental services pending pursuit or appeal with Medi-Cal, private insurance, or other health care plan, would only place further strain on regional centers. From both a policy and fiscal standpoint, it is important to judiciously weigh any new requirements and obligations placed on the regional center system as the state prepares for rate increases and other changes. Recommended amendments: In order to address the issues raised above, committee staff recommends: 1) striking provisions of this bill that require regional centers to pay for medical or dental services pending pursuit or appeal with Medi-Cal, private insurance, or other health care plan, and 2) narrowing the requirements this bill places on regional centers to provide certain documents in native languages to instead require the provision of the following in threshold languages, as appropriate: information on appeals and complaints, the consumer's annual statement of services and supports, and a document providing information on exceptions/exemptions to certain service limitations and how to pursue those exceptions/exemptions. Therefore, committee staff recommends the following amendments: 1)Strike the following: lines 23 through 30 on page 4; lines 4 through 12 on page 18; lines 27 through 38 on page 19; lines 3 through 10 on page 23; and lines 8 through 16 on page 25. AB 2809 Page 15 2)Make the following amendments starting on line 17 of page 4 of the bill: 17 (6)At the beginning of each individual program plan meeting, 18 the regional center shall provide a consumer and, when 19 appropriate, his or her parents, legal guardian, conservator, or 20 authorized representativea list of services provided by the regional21center andinformation about the appeal and complaint process 22 in threshold languages, as appropriate, and as defined by paragraph (3) of subdivision (a) of Section 1810.410 of Title 9 of the California Code of Regulations.his or her native language.AB 2809 Page 16 3)Make the following amendments starting on line 8 of page 16 of the bill: 8 (h)At least annually,and at the time of development, scheduled9review, or modification of a consumers individual program plan10or individualized family service plan,regional centers shall provide 11 the consumer, his or her parents, legal guardian, conservator, or 12 authorized representative a statement of services and supports the 13 regional center purchased for the purpose of ensuring that they are 14 AB 2809 Page 17 delivered. The statement shall include the type, unit, month, and 15 cost of services and supports purchased. The regional center shall 16provide that statement in the native language of themake that statement available in threshold languages, as appropriate, and as defined by paragraph (3) of subdivision (a) of Section 1810.410 of Title 9 of the California Code of Regulations, to the consumer or 17 his or her parents, legal guardian, conservator, or authorized 18 representative, or both. 4)Make the following amendments starting on line 3 of page 17 of the bill: 3 the child.At the time of development, scheduled review, orAB 2809 Page 18 4modification of a consumer's individual program plan or5individualized family service plan, the regional center shall6provide, in a non-technical, understandable form and in the native7language of the consumer or his or her parents, legal guardian,8conservator, or authorized representative, or both, a written9statement of the requirement described in this subdivision and10examples of sufficient written documentation that may be submitted.11The regional center shall accept documentation submitted pursuant12to this subdivision in any written form, including in the native AB 2809 Page 1913language of the consumer or his or her parents, legal guardian,14conservator, or authorized representative.5)Make the following amendments starting on line 25 of page 19 of the bill: 25 to meet the consumer's need.The consumer shall be informed of26the exemption and the process for obtaining an exemption.The consumer shall be informed of the exemption and the process for obtaining an exemption. 6)Make the following amendments starting on line 39 of page 20 of the bill: 31 (d)(1)Effective July 1, 2009, notwithstanding any other law 32 or regulation, a regional center shall not purchase medical or dental AB 2809 Page 20 33 services for a consumer three years of age or older unless the 34 regional center is provided with documentation of a Medi-Cal, 35 private insurance, or a health care service plan denial and the 36 regional center determines that an appeal by the consumer or family 37 of the denial does not have merit. If, on July 1, 2009, a regional 38 center is purchasing the service as part of a consumer's IPP, this 39 provision shall take effect on August 1, 2009.At the time of40development, scheduled review, or modification of a consumer'sP21 1 AB 2809 Page 21individual program plan or individualized family service plan, the2regional center shall provide, in a non-technical, understandable3form and in the native language of the consumer or his or her4parents, legal guardian, conservator, or authorized representative,5or both, a written statement describing the documentation required6pursuant to this paragraph.Regional centersmaymayshallpay for 7 medical or dental services during the following periods: 8 (A)While coverage is being pursued, but before a denial is 9 made. AB 2809 Page 22 10 (B)Pending a final administrative decision on the administrative 11 appeal if the family has provided to the regional center a 12 verification that an administrative appeal is being pursued. 13 (C)Until the commencement of services by Medi-Cal, private 14 insurance, or a health care service plan. 7)Insert the following language into the bill: At the time of development, scheduled review, or modification of a consumers individual program plan or individualized family service plan, the regional center shall make available, in a non-technical, understandable form and in threshold languages, as appropriate, and as defined by paragraph (3) of subdivision (a) of Section 1810.410 of Title 9 of the California Code of Regulations, for the consumer or his or her parents, legal guardian, conservator, or authorized representative, or both, a AB 2809 Page 23 document describing all of the following exceptions and exemptions to service limitations and the process for obtaining each exception and exemption: 1) The exception described in subdivision (d) of Section 4648.35 2) The exemption described in subdivision (c) of Section 4648.5 3) The exemption described in subdivision (d) of Section 4648.55 4) The exemption described in subparagraph (A) of paragraph (3) of subdivision (a) of Section 4686.5. RELATED AND PRIOR LEGISLATION SB 1034 (Mitchell), among other things, would prohibit lack of parent or caregiver participation from being used to deny or reduce medically necessary behavioral health treatment, as specified. This bill was heard in the Senate Health Committee on April 20th. ABX2 1 (Thurmond), Chapter 3, Statutes of 2016, among other things, implemented targeted rate increases for the community-based developmental services system. SB 82 (Senate Committee on Budget and Fiscal Review), Chapter 23, Statutes of 2015, among other things, required each regional AB 2809 Page 24 center to offer, and upon request provide, a written copy of the IPP to the consumer and, when appropriate, his or her parents, legal guardian or conservator, or authorized representative within 45 days of his, her, or their request in a threshold language, as defined, and further required the department and regional centers to annually collaborate to compile data on the number of instances in which an IPP was provided in this manner. SB 555 (Correa), Chapter 685, Statutes of 2013, placed various requirements on regional centers to communicate and provide certain written materials in a consumer's and/or family's or other designated individual's native language, as specified. AB 9 X4 (Evans), Chapter 9, Statutes of 2009, contained necessary changes to enact modifications to the 2009 Budget Act, including, but not limited to, suspending and limiting certain services for regional center consumers. REGISTERED SUPPORT / OPPOSITION: Support Crystal Stairs, Inc. Disability Rights California Public Counsel - co-sponsor AB 2809 Page 25 Special Needs Network - co sponsor State Council on Developmental Disabilities Opposition Association of Regional Center Agencies (ARCA) Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089