BILL ANALYSIS �
AB 1244
Page 1
Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 1244 (Chesbro) - As Amended: April 14, 2011
SUBJECT : Developmental services: Self-Determination Program
SUMMARY : Establishes the Self-Determination Program providing
individuals with developmental disabilities with an individual
funding allocation to give them greater control over the
purchase of services and supports needed to implement their
individual program plans. Specifically, this bill :
1)Strikes existing statutory provisions establishing the
Self-Directed Services Program (SDS Program) (Welfare &
Institutions (W&I) Code Section 4685.7) and, instead, provides
for a Self-Determination Program (SD Program), which makes
available to individuals with developmental disabilities
receiving services under the Lanterman Developmental
Disabilities Services Act (Lanterman Act) a capitated
individual funding allocation, computed in a fair,
transparent, and equitable manner based on the individual's
characteristics and need, to enable them to exercise their
rights to make choices in their lives and access services and
supports they choose to implement their individual program
plans (IPPs).
2)Provides that the SD Program shall be designed to promote and
be evaluated against core quality outcomes, including:
a) Participants' welfare, health, and safety;
b) Participants living in a place called home, including
with family, friends, or on one's own, and, for adults, in
a living arrangement under their own control;
c) Participants having meaningful participation and
membership in the community;
d) Participants maintaining reciprocal long-term
relationships, including relationships that assist the
participant to live a health, included life;
e) Participants generating private income through typical
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jobs in regular employment settings or through
self-employment for participants of working age; and,
f) Participants having access to or control over
transportation.
3)Defines "advocacy services" as services and supports that
facilitate the participant in exercising his or her legal,
civil and service rights to access generic services and
benefits that the individual is entitled to receive and
provides that advocacy services are to be provided only when
other advocacy assistance is not available.
4)Defines "financial management services" (FMS) to mean a
conflict of interest free service or function that assists SD
Program participants to manage and direct the distribution of
funds in their individual allocation, and that provides
required workforce and expenditure information to the
Department of Developmental Services (DDS). Requires DDS to
establish qualifications for an FMS provider and to contract
with one FMS entity statewide.
5)Defines "individual allocation" as the funding available to a
participant for services and supports necessary to implement
his or her IPP, and provides that the individual allocation is
to be determined using a fair, equitable, and transparent
methodology that includes but is not limited to consumer
characteristics and needs.
6)Defines "individual budget" to mean a participant's
individualized plan for using his or her individual allocation
for achieving the core quality outcomes relevant to the
participant and meeting the participant's IPP goals.
7)Defines "participant" as an individual and, when appropriate,
his or her parents, legal guardian or conservator, or
authorized representative, who are eligible for, and have
voluntarily agreed to participate in the SD Program.
8)Defines "board" to mean the Public Employment Relations Board
(PERB), established under existing law.
9)Defines "risk pool" as an account available for addressing
unanticipated needs of SD Program participants.
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10)Defines "supports brokerage" to mean a service or function,
carried out by a "support broker," that assists program
participants in making informed decisions about how to develop
their budget from the individual allocation, in identifying
immediate and long-term needs, in developing the IPP, and in
locating, accessing and coordinating services.
11)Defines "SD Program" to mean a voluntary delivery system
consisting of a defined and comprehensive mix of services and
supports, selected and directed by a participant, in order to
meet all or some of the person's IPP objectives. Further
provides that SD services and supports are designed to assist
the participant to achieve personally defined outcomes in
inclusive community settings, and specifies a non-exhaustive
list of 25 SD services and supports.
12)Defines "SD support worker" as a person selected and employed
by a participant for an average of at least 25 hours per month
over a 2-month period to provide SD services and supports,
excluding licensed professionals and workers providing
services purchased from agencies or organizations where the
worker is solely under the employ of those organizations.
13)Provides that participation in the SD Program is voluntary,
that a participant may choose to participate or leave at any
time, and that participation may not be a condition placed on
the receipt of services and supports otherwise available under
the Lanterman Act.
14)Provides that SD Program participation shall be available to
any consumer age 3 or older who agrees to meet specified SD
Program requirements, including consumers who are not Medi-Cal
eligible.
15)Authorizes adults to designate an authorized representative
meeting specified requirements.
16)Provides that individuals receiving services under the
current self-determination pilot projects may choose to
continue and may be terminated only with the participant's
consent and qualification to receive services under a
different service delivery system.
17)Provides that, in its first year, the SD Program shall be
available only in the five regional centers (RCs) that are
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part of the existing self-determination pilot program and
that, in the second year, all RCs shall be required to
implement an SD Program as a term of their contract.
18)Describes respective responsibilities of DDS and RCs for
providing informational materials, training, and orientation
about the SD Program.
19)Requires that an individual and, when appropriate, the
individual's legal representative, be informed, in writing, of
the individual allocation amount prior to enrollment in the SD
Program.
20)Provides the following with respect to individual
allocations:
a) The individual allocation shall equal 90% of the annual
per capita purchase of service costs for the previous
fiscal year for consumers with similar characteristics who
do not receive services through the SD Program;
b) The allocation methodology shall use data available on
the DDS information system, including, age, type of
residence, type of disability and ability, functional
skills, support needs, and whether the individual is in
transition;
c) Until the first year of historical data is available,
DDS shall adjust the allocation to estimate the impact of
service reductions resulting from the Budget Act of 2011;
d) The allocation methodology shall provide additional
needed resources in the case of individuals transitioning
from a family home or congregate setting to independent
living;
e) The individual allocation amount shall not be calculated
more than once in a 12-month period and shall remain in
effect each year until a new individual allocation amount
has been determined; and,
f) The RC's calculation of an individual allocation may be
challenged through an administrative appeal process, as
described.
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21)Provides that, once an individual or his or her legal
representative elects to participate in the SD Program, the
following shall occur:
a) The RC shall advance funds to the FMS entity to support
the hiring of a support broker;
b) The individual and, when appropriate, his or her legal
representative, with the assistance of the service broker
and others, as appropriate, shall develop a person-centered
plan and individual budget within the individual allocation
designed to assist the individual to achieve the relevant
core quality outcomes; and,
c) The individual budget shall distribute the allocation,
including expenditures for services and supports, among the
following budget categories, based on the core quality
outcomes:
i) Welfare, health, and safety;
ii) Supports for living in a place called home;
iii) Meaningful participation and membership in the
community;
iv) Developing and maintaining long-term relationships;
v) Generating income through supports for employment or
self-employment; and,
vi) Transportation.
22)Prohibits the use of individual allocations to purchase
services from the following:
a) A licensed long-term health facility, or a residential
facility;
b) A day program or habilitation services program, except
for:
i) Specific periodic or one time services; and,
ii) Job development and job coaching services for
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Individual Placement Supported Employment.
23)Provides that an RC must provide person-centered planning
services, within 30 days of a request, to arrange for the
transition to the SD Program of a person in a licensed
long-term health facility, residential facility, day program,
or habilitation program.
24)Requires the individual's IPP team to review and utilize the
IPP to detail the goals and objectives to be met through the
purchase of participant-selected services and supports, and
requires that the completed budget be attached to the IPP.
25)Provides that an RC may not prohibit the purchase of any
service or support otherwise allowable under the SD Program in
order to implement an individual's IPP.
26)Authorizes participants to annually transfer up to 20% of the
funds from one budget category to one or more other budget
categories. Authorizes transfers greater than 20% with RC
approval, which may be denied only when necessary to protect
the individual's health and safety.
27)Requires RCs to annually ascertain from participants if a
change to the individual allocation is needed and, if
necessary, to calculate a new amount, which the participant
may select instead of the current amount.
28)Requires DDS to establish and administer a risk pool, as
defined, and requires that the money in the fund be
continuously appropriated to DDS.
29)Requires the risk pool to be funded by an amount equivalent
to 2.5% of the historical annual purchase of service costs for
consumers in the SD Program, and that DDS specify a process to
allocate the funds to RCs.
30)Provides that the risk pool be used only in the event of
substantial unanticipated change in a participant's service
and support needs, including urgent need to change residence
or to prevent or respond to significant illness or injury.
31)Requires DDS to use 2.5% of the historical annual purchase of
service costs for consumers in the SD Program toward
offsetting SD Program state costs.
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32)Describes the role and responsibilities of RC service
coordinators under the SD Program, including providing
information to participants and their legal representatives,
determining individual allocation amounts and individual
budgets, developing the IPP, monitoring budget expenditures,
and determining the need to change the individual allocation
or to access the risk pool.
33)Establishes an average service coordinator-to-consumer ratio
of 1 to 62 for SD Program participants and requires, to the
maximum extent possible, that SD Program participants be
assigned to service coordinators with a designated SD Program
caseload.
34)Requires DDS to annually provide for General Fund savings of
5% of the annual purchase of service costs for SD Program
participants compared to consumers with similar
characteristics.
35)Requires the FMS to send quarterly financial statements to
the participant and the RC.
36)Requires RCs to provide for the transition of consumers no
longer eligible for, or choosing to voluntarily exit the SD
Program, with no gap in services and supports during the
transition period.
37)Provides that the Lanterman Act appeal process is available
to consumers found to be no longer eligible for the SD
Program.
38)Provides that individuals voluntarily withdrawing from the SD
Program, or individuals determined to be ineligible for the SD
Program upon again meeting eligibility criteria, be permitted
to return after a minimum of 12 months.
39)Requires service providers to meet applicable licensing or
certification requirements, but exempts all service providers
except the FMS from vendorization requirements.
40)Exempts SD Program participants from the Family Cost
Participation Program, and recent cost savings measures
placing restrictions on purchases of services enacted through
the budget process.
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41)Recognizes that SD Support Workers are foundational to the SD
Program and, therefore, provides the following:
a) Provides that SD Program participants have the right to
employ, supervise, direct, schedule, evaluate, train and
terminate SD Support Workers, who are with limited
exceptions not deemed to be State employees, of their
choice;
b) Requires the State to establish a base compensation
package to ensure decent pay standards for SD Support
Workers, and authorizes individuals to pay SD Support
Workers above the base established by the state, to develop
job descriptions, and otherwise organize and incentivize
their SD Support Workers;
c) Authorizes SD Support Workers to form, join, and
participate in labor organizations in order to engage in
collective negotiations with DDS;
d) Requires DDS to collect SD Support Worker information
from any FMS provider that processes payments for SD
Support Workers, and provide specified information to a
labor organization representing SD Support Workers upon
request;
e) Authorizes a labor organization that represents SD
Support Workers to be designated as the exclusive
negotiating representative of SD Support Workers in the
State under specified conditions;
f) Provides that an SD Support Worker may refuse to join or
participate in the activities of the designated negotiating
representative;
g) Requires that the designated negotiating representative
represent SD Support Workers fairly and without
discrimination, regardless of membership in the labor
organization;
h) Authorizes the designated negotiating representative to
charge a reasonable fair share service fee to bargaining
unit nonmembers;
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i) Specifies the terms and conditions of the SD Support
Workers' participation subject to negotiation by the
designated negotiating representative, and those terms and
conditions reserved for the participant, which are not
subject to negotiation by the designated negotiating
representative; and
j) Prohibits the designated negotiating representative for
SD Support Workers from calling or directing a strike or
other form of work stoppage.
42)Authorizes SD Program participants to request, at no charge
to the participant or RC, criminal background checks from
persons seeking employment as providers and providers of
direct care services, and authorizes DDS to enter into a
written agreement with the Department of Justice to implement
this provision.
43)Requires that DDS establish a statewide SD Program Advisory
Committee, with more than 50% of the Committee comprised of SD
Program participants and family members representing the
geographic, ethnic and language diversity of the state.
Further requires that the Advisory Committee include
representatives from:
a) The State Council on Developmental Disabilities;
b) Disability Rights California;
c) A University Center for Excellence in Developmental
Disabilities;
d) Regional centers; and,
e) A labor representative of RC employees.
44)Establishes requirements for the Advisory Committee,
including frequency of meetings, and delineates Committee
responsibilities, including participating in system oversight,
and advising on ongoing system design and implementation, as
well as SD Support Worker wages, benefits, training and career
development. Also requires the Advisory Committee to provide
input on the methodology for calculating individual
allocations and other initial implementation issues.
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45)Requires DDS, commencing January 10, 2013, to annually
provide specified information and data on implementation of
the SD Program to the Advisory Committee and to the policy and
fiscal committees of the Legislature.
46)Requires DDS, commencing on June 30, 2015, and at 3-year
intervals, to develop in consultation with the Advisory
Committee and submit to the relevant policy committees the
Legislature and the Advisory Committee an SD Program
evaluation, as described, based on the core quality outcomes.
47)States the intent of the Legislature that the purchase of
services and supports through the SD Program be eligible for
federal Medicaid match funds, and requires that DDS:
a) Take all steps necessary to ensure the availability of
federal matching funds for the SD Program by applying for
amendments to the current home and community-based waiver
for people with developmental disabilities or for a new
Medicaid waiver; and,
b) Apply for an enhanced federal match through the federal
Community First Choice Option.
EXISTING LAW
1)Establishes the Lanterman Act, under which DDS contracts with
21 private non-profit RCs to provide case management services
and arrange for, or purchase, services that meet the needs of
individuals with developmental disabilities.
2)Requires an IPP to be developed for every individual who is
determined to be eligible for regional center services under
the Lanterman Act through a process of individualized needs
determination, which identifies the services and supports to
be purchased by the regional center or obtained from other
agencies.
3)States the intent of the Legislature to ensure that the IPP
and provision of services and supports by RCs is centered on
the individual and the family of the individual with
developmental disabilities and takes into account the needs
and preferences of the individual and the family, where
appropriate, as well as promoting community integration,
independent, productive, and normal lives, and stable and
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healthy environments. States the further intent to ensure
that the provision of services to consumers and their families
be effective in meeting the goals stated in the IPP, reflect
the preferences and choices of the consumer, and reflect the
cost-effective use of public resources.
4)Establishes, contingent upon approval of a federal waiver, the
SDS Program, which, when implemented, provides participants,
within a set individual budget amount, greater control over
needed services and supports, consistent with the requirements
set forth in the statute. W&I Code Section 4685.7.
5)Requires DDS, in consultation with stakeholders, to develop an
alternative service delivery model that provides an Individual
Choice Budget (ICB) for obtaining quality services and
supports which provides choice and flexibility within a finite
budget that in the aggregate reduces regional center purchase
of service expenditures, reduces reliance on the state general
fund, and maximizes federal financial participation in the
delivery of services. Requires the individual budget to be
determined using a fair, equitable, transparent standardized
process. W&I Code Section 4648.6.
6)Suspends RCs' authority to purchase specified
services-including, social/recreation activities, camping
services, educational services for minor, school-aged
children, and non-medical therapies-pending implementation of
the ICB service delivery model and certification by the
director of DDS that the ICB has been implemented and will
result in state budget savings sufficient to offset the costs
of providing those services. W&I Code Section 4648.5.
FISCAL EFFECT : Unknown
COMMENTS : "Self-determination," or "self-directed services,"
represents an alternative model of service delivery, whereby
individuals who are eligible for state developmental
disabilities services are empowered to gain control over the
selection of services and supports that meet their own needs.
It is an alternative to the standard service model of the
Lanterman Act in which regional centers purchase services
directly from approved "vendors" or obtain services from other
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agencies. Self-determination is intended to enhance the ability
of a consumer and his or her family to control the decisions and
resources required to meet all or some of the objectives in the
consumer's IPP. According to DDS' Web site, self-directed
service programs are implemented nationwide and have garnered
international and bi-partisan support.
The author of this bill notes that:
The �Lanterman Act] has led to tremendous advancements
in deinstitutionalization, community integrated
services, disability rights and family support.
However, the long-term national trends away from
congregate services and towards highly individualized
options has led to the demand by people with
disabilities for control over their services and
lives. People seek homes of their own, where they
control who comes in and who supports them. They seek
real membership in their communities, participating as
a valued member in community organizations and
activities that they choose. They seek to develop and
preserve long-term reciprocal relationships, with
friends, family, neighbors, and others in their
communities. And people want to earn income to begin
to overcome the barriers inherent to a life of
poverty.
Self-determination, the author says, "leads to those outcomes
that people seek" and, "�i]n an environment of fiscal
constraint, and with more and more limits put on the
availability of traditional �RC] services, Self-Determination
offers an alternative to the cost pressures and increasing
limits of the traditional developmental services system."
Prior California self-determination/self-directed services
initiatives
Self-Determination Pilot Projects : SB 1038 (Thompson), Chapter
1043, Statutes of 1998, authorized the planning and
implementation of self-determination pilot projects at three
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RCs: East Los Angeles Regional Center, Tri-Counties Regional
Center, and Redwood Coast Regional Center. Two other regional
centers (Kern Regional Center and San Diego Regional Center)
also created independent self-determination pilots through
approval of alternative service delivery models pursuant to W&I
Code Section 4669.2. The pilot programs, which vary somewhat
among the five participating RCs, were limited to a total of
approximately 140 consumers. These self-determination pilot
programs are ongoing and, reportedly, successful, with a high
level of participant satisfaction.
Self-Directed Services Program (SDS Program) : AB 131 (Committee
on Budget), Chapter 80, Statutes of 2005 (Budget Act 2005,
omnibus health trailer bill), repealed the statutory section
establishing the self-determination pilot projects and added
Section 4685.7 of the W&I Code to establish, contingent upon
approval of a federal waiver, self-directed services statewide.
DDS filed an SDS Waiver application with the federal Centers for
Medicare & Medicaid Services (CMS) on April 2, 2008; however, it
has still not been approved. Therefore, the SDS Program has
never been implemented.
Individual Choice Budgets (ICB) : As part of the 2008-09 and
2009-10 budget process, DDS was charged with identifying $334
million in General Fund savings in the developmental
disabilities service system. Those cost savings measures
included the suspension of RCs' authority to purchase certain
services, including social/recreation activities, camping
services, educational services for minor, school-aged children,
and non-medical therapies. The services will be made available
once DDS develops and implements an ICB service delivery model
and the director of DDS certifies that the ICB has been
implemented and will result in state budget savings sufficient
to offset the costs of providing those services. AB 9 X4
(Evans), Chapter 9, Statutes of 2009 4th Extraordinary Session.
The ICB service delivery model is to provide consumers and
families with an "Individual Choice Budget" that gives them the
resources to obtain quality services and supports within a
defined budget while providing choice and flexibility that, in
total, saves money in purchase of service expenditures. AB 9 X4
requires DDS to develop the ICB model in consultation with
stakeholders. To date, no consensus among stakeholders has been
reached on the ICB model and it has not been developed or
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implemented.
Cost savings : A key feature of the existing SDS Program
statute, the ICB model, and the SD Program established by this
bill, is that individual budget allocations are required to
result in a cost savings compared to the current purchase of
service model. Thus, for example, the existing SDS Program
statute provides that the individual budget amount shall equal
either "90% of the annual purchase of services costs for the
individual" based on the average annual costs of providing
services for the individual for the previous two fiscal years,
or "90% of the annual per capita purchase of service costs for
the previous two fiscal years for consumers with similar
characteristics, who do not receive services through the SDS
Program." W&I Code Section 4685.7. Similarly, this bill
requires that the individual allocation amount "shall equal 90%
of the annual per capita purchase of service costs for the
previous fiscal year for consumers with similar characteristics
who do not receive services through the SD Program." In
exchange for the reduced expenditure, consumers would gain far
more flexibility and control over the services and supports they
receive.
The SD Program established by this bill is similar in many
respects to the SDS Program in existing law that it would
replace but has several key differences. For example, this
bill:
Directs DDS to contract with one FMS to provide services
statewide, rather than leaving it up to individual
participants to identify their own FMS;
Establishes budget categories to enable participants to better
plan for budget expenditures to achieve core quality outcomes;
Provides greater flexibility to participants than the existing
statute to transfer their individual allocations between
budget categories without RC authorization;
Specifies in greater detail the role of planning teams in
reviewing the IPP and individual budget plan against the core
quality outcomes, and requires a designated SD Program
caseload for service coordinators, with an average caseload
ratio of no more than 1:62;
Sets the risk pool at 2.5%, with another 2.5% allocated to
offset SD Program costs, whereas the existing statute
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establishes a risk pool account of 5% of historic costs;
Relaxes the prohibition on purchasing congregate services to
allow purchases of innovative or periodic services from
traditional congregate service vendors;
Gives greater authority to participants to hire a service
broker of their choice;
Phases in the SD Program, with implementation limited to the
existing five Self-Determination Pilot Program RCs in the
first year;
Includes provisions related to the SD Program workforce,
including requiring the state to set minimum compensation
levels for workers and to obtain workforce data and report on
workforce outcomes; establishing a means for SD Program
workers hired directly by participants to form a union under
the PERB to represent themselves to the state over base
compensation; and, prohibiting strikes or other work
stoppages, or collective bargaining that would infringe on the
ability of participants to hire, supervise, train, schedule,
incentivize, or fire their workers; and,
Establishes an Advisory Committee to provide input on program
design and implementation, including review of program
outcomes and workforce issues.
Another key difference between this bill and the SDS Program in
current law concerns funding. The existing SDS Program is
contingent on approval of a federal waiver, which, as noted, has
yet to be approved by CMS. This bill, while directing DDS to
ensure federal financial participation, does not explicitly
provide that implementation of the SD Program is contingent on
federal matching funds. Additionally, this bill directs DDS to
explore a wider variety of options for obtaining federal funds,
including applying to amend the current Home and Community Based
Services Waiver for People with Developmental Disabilities, and
applying for an enhanced federal match through the federal
Community First Choice Option.
The number of individuals who would choose to participate in the
SD Program is undetermined. Under its provisions, once the
program is available statewide, any RC consumer over the age of
3 years-who does not need or choose to live in a congregate
health facility or other licensed congregate living arrangement,
or does not, with specified exceptions, choose to participate in
a congregate day or habilitation program-would be eligible. RCs
serve approximately 215,000 consumers over the age of 3. The
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author estimates that, perhaps, 200 people would participate in
the first year from the 5 pilot program RCs and, then, perhaps
as many as 10-15% of eligible consumers would choose to
participate once the program goes statewide, starting in the
second year.
Concerns : Disability Rights California (DRC) says that the
policy goals of providing greater flexibility and autonomy about
how consumers and their families can access RC services, and of
ensuring that workers receive a livable wage, including
appropriate benefits, "generally promote better quality care and
the stability of the workforce in the community based service
system." DRC has a Support-if-Amended position on this bill
based on two concerns: 1) The risk pool of 2.5% of the budget
savings to address unanticipated needs is insufficient; and 2)
the requirement that workers be compensated at established rates
may impact the amount of services consumers will be able to
purchase with their individual allocations. To address these
concerns, DRC proposes an amendment to increase the risk pool to
5% either by reducing the amount of the projected savings in the
first two years of the program or by reducing the set-aside for
training and other administrative functions, or by a combination
of these measures. DRC also proposes that this bill be amended
to require adjustments to individual allocations commensurate to
any increases to the SD support workers' base compensation
package.
The Legislature, in authorizing Self-Determination Pilot
Programs in 1998, in enacting the SDS Program in 2005, and in
directing DDS to develop an Individual Choice Budget model in
2009, has repeatedly endorsed the principles and values of the
self-determination model of service delivery. The author of
this bill states, in conclusion, that "�a]fter 12 years of
'piloting' Self-Determination in California, it is past time to
make this extraordinary option available to all regional center
clients."
REGISTERED SUPPORT / OPPOSITION :
Support
East Bay Innovations
Service Employees International Union California (SEIU)
3 individuals
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Opposition
None on file.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089