BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1244
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AUTHOR: Chesbro
B
VERSION: May 24, 2012
HEARING DATE: June 26, 2012
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FISCAL: Yes
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CONSULTANT: Mareva Brown
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SUBJECT
Developmental services: Self-Determination Program
SUMMARY
Creates a self-determination program within the existing
developmental services system to provide individuals with a
single, capitated funding allocation they may use to
purchase services that support goals identified in their
individual program plan. It would replace the current
self-directed services program, which required a federal
waiver for implementation, and remains stalled in that
waiver application process.
ABSTRACT
Current law
1) Establishes the Lanterman Developmental
Disabilities Act, which entitles individuals with
developmental disabilities to community services and
supports through the Department of Developmental
Services (DDS) and requires the department to enter
Continued---
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into contracts with private nonprofit regional centers
to provide these supports.
2) Establishes a system of 21 non-profit regional
centers to coordinate these services and supports for
qualified consumers, including, but not limited to,
the purchase of needed services, and the monitoring of
delivery of those services.
3) Creates a self-directed services program,
contingent upon approval of a federal waiver, in which
consumers of regional center services can opt for a
set individual budget that allows them to choose from
a menu of service options rather than having services
coordinated through a regional center case manager.
4) Establishes the individual choice budget,
contingent upon certification by the director of DDS
that the program would save $35.1 million, which would
provide individuals with a capitated budget to
purchase services.
This bill
Note: the author has amended the bill since it was last
heard in this committee on July 5, 2011. The substance of
those amendments has not changed the analysis of the bill,
except as noted below.
1) Deletes language related to the self-directed
services program.
2) Replaces it with a new program, the
self-determination program, which would create a
voluntary service delivery system to provide consumers
of regional center services throughout the state the
option to select from a defined mix of services and
supports to achieve personally defined outcomes, which
meet all or some of the objectives in the individual's
individual program plan.
3) Provides that participation in the program is
voluntary and clarifies that all consumers three years
of age and older may choose to enter or leave it at
any time. Participants who leave the program must
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wait 12 months to re-enter it.
4) Requires that the program's establishment is
contingent upon the receipt of federal Medicaid
matching funds. It requires DDS to take "all steps
necessary" to ensure federal financial participation
by:
a. Applying for amendments to the
department's current home and community-based
services waiver; or
b. Applying for a new waiver, and
c. Applying for enhanced match through the
federal Community First Choice Option.
5) Establishes that participants in the
self-determination program would be provided with a
budget equal to 90 percent 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 self-determination
program. Amendments to the bill since it was heard
July 5, 2012 would create a second method of
calculating an individual's allocation amount and
allow the consumer to choose between the two
calculations. The second formula would be 90 percent
of the annual purchase of service costs of the prior
two fiscal years.
6) Requires DDS to establish a statewide
self-determination program advisory committee that
must advise DDS on development of a methodology for
calculating the individual allocations and, on an
ongoing basis, advise the department on system design,
implementation and workforce issues. Beginning
January 10, 2013, the committee is required to submit
annual reports to the policy and fiscal committees of
the Legislature.
7) Requires DDS to contract with a single, statewide
financial management service agency to support all
participants in the self-determination program, and
requires the agency send a quarterly statement to the
participant and regional center case manager
describing the amount spent in the previous 90-day
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period, as well as the participant's balance.
8) Requires regional center planning teams review and
utilize the person-centered plan developed for the
self-determination program in planning an individual's
program plan (IPP). It also requires the team to
review annually the amount of the individual
allocation to ensure that the budget assists the
participant to achieve specified core quality outcomes
and that it implements the participant's IPP goals.
9) Establishes a participant's right to use a supports
broker to assist in making informed decisions about
how to develop their budget, assist in coordinating
services and negotiating with providers. Services may
be provided on an unpaid or paid basis. Amendments to
the bill since it was heard July 5, 2011 require the
regional center to advance funds to pay for a support
broker, which shall be independent of the funds in the
independent allocation.
10) Requires regional centers to maintain a ratio of at
least one service coordinator for every 62 consumers
in this program and to conduct quarterly visits, as
required by DDS.
11) Requires DDS to establish and administer a risk
pool for participants and to fund it at an amount
equivalent to 2.5 percent of the historical annual
purchase of service costs for consumers participating
in the self-determination program.
12) Requires DDS to allocate 7.5 percent of historical
annual purchase of services for consumers
participating in the self-determination program
towards offsetting costs of administering the program,
and requires that funds not used be returned to the
General Fund.
13) Exempts participants from the family cost
participation program, cost control restrictions
suspended by the Budget Act of 2009 and purchase of
service best practices enacted in 2011.
14) Exempts providers, except for the financial
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management services agency, from the requirement to
become regional center vendors.
15) Prohibits participants from using their individual
budgets to purchase services from a licensed long-term
health care facility, a residential facility, or to
purchase complete day program or habilitation
services, but permits participants to negotiate for
part-time day program or habilitation services or for
job coaching services.
16) Requires DDS to set a base compensation package for
self-determination support workers hired by program
participants, and provides that support workers may
form, join and participate in the activities of labor
organizations of their own choosing in order to engage
in collective negotiations with the department.
Amendments to the bill since July 5, 2011 define a
base compensation package for self-determination
workers to include salary, health insurance and
worker's compensation benefits, at a minimum.
17) Stipulates that a labor organization that
represents self-determination support workers may
petition the Public Employment Relations Board to be
designated as the exclusive negotiating representative
of self-determination support workers in the state.
Amendments to the bill since July 5, 2011 further
define how labor organizations may pursue an election
to represent self-determination support workers and
further delineate activities that may be charged to
bargaining unit nonmembers.
18) Delineates aspects of the work of
self-determination support workers that will be
subject to labor negotiations, including wages,
benefits, payment procedures, training and career
development opportunities, and membership dues and
fair share service fees.
19) Directs DDS to establish a statewide
self-determination program advisory committee, with
more than half of its members being self-determination
program participants and their family members
representing the geographic, ethnic, and language
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diversity of the state. Other committee members shall
include representatives from the State Council on
Developmental Disabilities, Disability Rights
California, a University Center for Excellence in
Developmental Disabilities, regional centers, and a
labor representative of regional center employees.
20) Requires the advisory committee to meet at least
twice annually, participate in system oversight,
advise DDS on implementation of the self-determination
program, and, during the development of the program,
meet with the department at least twice to provide
input on the methodology for calculating individual
allocations and other initial implementation issues.
21) Requires DDS, beginning in January of 2013, to
provide the Legislature and the advisory committee
information concerning a dozen aspects of the
self-determination program, including the number and
characteristics of participants, by regional center;
the utilization of the risk pool, by regional center;
the proportion of participants who report that their
choices and decisions are respected and supported; and
detailed workforce metrics for self-determination
support workers including wages, hours worked, and
length of time on the job.
22) Requires DDS, commencing in January 2015 and every
three years thereafter, to provide the Legislature and
the advisory committee with an evaluation of the
self-determination program; the evaluation shall be
designed in consultation with the advisory committee
and shall include a summary of all of the following:
a) the types and ranking of services and
supports purchased under the self-
determination program, by regional center;
b) consumer satisfaction with the program and,
when data are available,
consumer satisfaction with the traditional
service delivery system, by
regional center; and
c) the proportion of participants who
report they are able to recruit, hire, and
retain qualified service providers.
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23) Directs DDS to take all steps necessary to ensure
the maximum federal financial participation in all
aspects of the self-determination program.
FISCAL IMPACT
The Assembly Appropriations Committee projects initial,
one-time General Fund costs of several hundred thousand
dollars for the workload associated with creating the new
program; it projects ongoing funding to be neutral. This
may need further fiscal analysis to determine if allocated
funding is sufficient to support administration of the
program.
BACKGROUND AND DISCUSSION
Author's statement
Self-determination puts a person with a developmental
disability in control of their service dollars. They are
given a capitated budget which is held by a fiscal
intermediary. From this budget, regional center clients are
able to hire their own workers and purchases services of
their choice. More than 29 states have established an
option for self-determination, and it "remains the gold
standard for empowerment of people with developmental
disabilities and inclusion in their communities."
History
California's 21 regional centers serve approximately
250,000 individuals with developmental disabilities over
age three, and their families. The regional centers were
created as independent non-profit, nonpublic organizations
to act as a single point of entry for individuals into the
system. A regional center case manager works with
consumers, family members, providers and others to develop
an individual program plan. The case manager then sets up
and authorizes funding for services in support of that
plan.
Self-determination programs, which are growing in number
across the country, are intended to give participants
greater control over access to services and supports. They
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give consumers the flexibility to purchase preferred
services and to relinquish other services that might be
authorized. For example, a consumer may choose to increase
hours in a recreational program and decrease the number of
respite hours within his budget. According to the DDS
website, self-directed service programs are implemented
nationwide and have garnered international and bi-partisan
support
Self-directed services
In California, efforts to provide a self-direction option
to consumers in the developmental services system began
with pilot projects launched at five regional centers in
1998, which continue to operate, serving approximately 140
individuals. The program was intended to be made statewide
with the passage of the 2005 budget act, contingent upon
approval of a federal waiver for self-directed services.
This subsequently stalled at the federal level when the
Centers for Medicare and Medicaid Services granted approval
for the waiver conditioned upon redesign of the payment
process. Instead of having regional centers disburse
individual budgets to a fiscal manager, the federal
government invoked a rule requiring that DDS pay providers
directly, so the self-directed services program has not
been implemented. DDS has said that the issue of payment
via the regional centers will be worked out prior to the
renewal of the DDS home and community based services waiver
in late 2011.
The self-determination program that this bill establishes
is different from the self-directed services program in
several key ways, including but not limited to:
Allows more flexibility in finding federal
reimbursement
Requires that there be a uniform methodology to
calculate the individual budgets
Requires use of a single financial management
system agency which must provide DDS with statewide
data and regional centers with individual data
quarterly
Establishes a base compensation package for
self-determination program workers, and provides that
workers may form and join a labor organization.
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Individual choice budget
Budget advisory group discussions convened by DDS in 2009
focused on a self-directed option ~ the individual choice
budget ~ that would allow consumers access to otherwise
suspended services, including nonmedical therapies such as
specialized recreation, art, dance, and music and camping,
among others. In return, consumers would be provided a
capitated budget determined in a fair, standardized and
equitable process.
The individual choice budget was expected to result in
general fund savings of $35.1 million. Implementation of
the individual choice budget was contingent upon the
director of DDS certifying that those savings could be
achieved. Ultimately, it was not implemented.
This bill attempts to preserve the cost-savings element by
allocating an individual budget equivalent to 90 percent 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
self-determination program. It also promotes the
flexibility that previous efforts have tried to capture.
It restores consumers' ability to access services that were
suspended in the 2009 budget. It still mandates that
approval of federal Medicaid reimbursement must be obtained
before it can be implemented.
Union representation for self-determination support workers
The bill provides for persons, hired to provide services to
an individual who elects the self-determination program, to
organize and be part of a labor organization that may
petition the Public Employment Relations Board to be
designated as the exclusive negotiating representative of
self-determination support workers in the state.
An advisory committee and various reports to the
Legislature
The bill establishes an advisory committee to assist DDS in
the design and administration of the self-determination
program, and it sets forth requirements for an annual
report from DDS to the Legislature on program data and a
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triennial evaluation of the program. The first data report
is due in January of 2013, and the first evaluation is due
in January of 2015.
Related legislation
SB 1038 (Thompson), Chapter 1043, Statutes of 1998
authorized the creation of pilot projects for
self-determination at three regional centers. Two other
regional centers also created independent
self-determination pilots under an alternative service
delivery model, bringing to five the number of regional
centers engaged in the pilot. These pilots continue today.
AB 131 (Assembly Budget Committee), Chapter 80 Statutes of
2005 established a self-directed services option statewide,
contingent upon approval of a federal waiver. The waiver
has not been approved.
AB 9 X4 (Evans), Chapter 9, Statutes of 2009 4th
Extraordinary Session created an option for the individual
choice budget, which allowed for the purchase of otherwise
suspended services but required savings of $35.1 million.
It has not been implemented.
Arguments for
The Service Employees International Union writes in June
2012 that self-determined services allow participants to
make their own life decisions, including where and with
whom to live, what role to play in their community, whether
to maintain relationships and an ability to pursue economic
and spiritual goals. "The measure ultimately gives the
participants control over their budget, their services and
their lives."
SEIU argues that the direct support worker provides a
foundation for participants to access full community
participation and pursue their aspirations.
"Self-Determination has been successfully 'piloted' in
California for 12 years. It is time that people with
developmental disabilities and their families be given the
choice to keep the services they have now, or to choose
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self-determination."
Arguments against
California Disability Services Association writes in June
2012 that while it supports the concept of
self-determination and self-directed services,
"unfortunately this bill does not address the problems that
have prevented the implementation of this type of program
for several years. Perhaps most prominent is the failure of
the bill to present a clear and workable method to
determine an individual budget for each consumer who wishes
to enroll in the program."
CDSA also argues that the bill includes a number of
potentially expensive requirements such as creation of a
statewide vendor for financial management services and
creation of a new organized labor agreement within the
Department Developmental services that will establish a new
"minimum wage" for self-directed service workers which will
be paid from the consumer's individual budget. "The parties
who will ultimately be required to pay the higher wages and
benefits are the consumers and their families."
PRIOR VOTES
Senate Human Services 3 - 3
Assembly Floor 51 - 27
Assembly Appropriations 12 - 5
Assembly Human Services 4 - 2
QUESTIONS AND COMMENTS
AB 1244 was first heard in this committee on June 28, 2011,
and then again on July 5, 2011, with author's amendments.
It failed passage and was granted reconsideration.
POSITIONS
Support: Disability Rights Education & Defense Fund
(prior version)
Disability Rights California (prior version)
Jay Nolan Community Services (prior version)
Kern Regional Center (prior version)
Service Employees International Union
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2 individuals
Oppose: Achievement House (prior version)
Advocacy for Respect and Choice - Long Beach
(prior version)
California Assoc of Health Facilities
(unless amended / prior version)
California Disability Services Association
California Supported Living Network (prior
version)
Cal-TASH (prior version)
Community Interface Services (prior version)
Contra Costa ARC (prior version)
Elwyn California (prior version)
Employment and Community Options
EXCEED (prior version)
GAR Services (prior version)
In Alliance (prior version)
Janis Escamilla Supported Living Services
LLC (prior version)
Life Steps Foundation (prior version)
NCI Affiliates Inc. (prior version)
Partnerships With Industry (prior version)
Pleasantview Industries (prior version)
Pomona Valley Workshop (prior version)
Pride Industries (prior version)
San Gabriel Valley Training Center (prior
version)
SoCal Adult Services (prior version)
Strategies to Empower People (prior version)
The Adult Skills Center (prior version)
The Arc and United Cerebral Palsy in
California (unless amended)
The Arc of Fresno (prior version)
The Arc of San Diego (prior version)
Toolworks (prior version)
Toward Maximum Independence, Inc. (prior
version)
Trinity Change
Vocational Improvement Program (prior
version)
Work Training Center and Affiliated Programs
(prior version) 3 individuals
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