BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Jim Beall, Chair
BILL NO: AB 1595
A
AUTHOR: Chesbro
B
VERSION: June 18, 2014
HEARING DATE: June 24, 2014
1
FISCAL: Yes
5
9
CONSULTANT: Mareva Brown
5
SUBJECT
State Council on Developmental Disabilities
SUMMARY
This bill broadly rewrites the statutory responsibilities
of the State Council on Developmental Disabilities (SCDD),
including restructuring the role and scope of the state's
13 area boards, to comply with the requirements of the
federal Administration on Intellectual and Developmental
Disabilities, which has designated the SCDD as being at
high risk and limited access to its $6.5 million grant.
Specifically, the bill would revise the Governor's
appointees on the council from 31 voting members, including
13 members from the area boards and 7 members at large to
20 members, as specified. While by federal statue the
Governor must appoint SCDD members, this bill removes the
Governor's role in appointing members of area boards and
SCDD staff. This bill would recast the state's 13
independent area boards as regional offices or regional
advisory committees and would make their establishment
discretionary. Additionally, this bill revises the
authorization for the state Department of Developmental
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageB
Services (DDS) to contract with SCDD for advocacy services
within its developmental centers and makes other conforming
changes.
ABSTRACT
Existing law
1)Establishes the Lanterman Developmental Disabilities
Services Act, which states that California is responsible
for providing an array of services and supports
sufficiently complete to meet the needs and choices of
each person with developmental disabilities, regardless
of age or degree of disability, and at each stage of life
and to support their integration into the mainstream life
of the community. (WIC 4500, et al)
2)Under the Developmental Disabilities Assistance and Bill
of Rights Act of 2000 (DD Act) establishes in federal law
the Administration on Intellectual and Developmental
Disabilities (AIDD) with funding to state councils on
developmental disabilities to engage in advocacy,
capacity building and systemic change. (42 USC 15021 �
121)
3)Creates the SCDD as an authority independent of any
single state service agency to advocate for persons with
developmental disabilities, tasks the Governor with
appointing all 31 members and designates the groups they
must represent, including area board members, and
specific terms of service. (WIC 4520, WIC 4521)
4)Establishes that statutes creating the SCDD and its area
boards are intended by the Legislature to secure full
compliance with the requirements of the DD Act. (WIC 4620
(c))
5)In order to comply with federal requirements, requires
the SCDD to serve as the state planning council
responsible for developing and monitoring implementation
of the "California Developmental Disabilities State
Plan," and to perform a number of additional specified
duties, including:
a. Serve as the official agency responsible for
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageC
planning the provision of the federal funds allotted
to the state, as specified, and to apportion these
funds among agencies and area developmental
disabilities boards in compliance with applicable
state and federal law.
b. Through support of the area boards, engage in
geographically based outreach and individual and
systemic advocacy to assist and enable individuals
and families to obtain services, supports, and other
forms of assistance.
c. Provide testimony to legislative committees
reviewing fiscal or policy matters pertaining to
persons with developmental disabilities.
d. Support and conduct training for persons with
developmental disabilities and their families to
enable these individuals to obtain access to, or to
provide, community services, individualized
supports, and other forms of assistance.
e. Conduct, or cause to be conducted,
investigations or public hearings to resolve
disagreements between state agencies, or between
state and regional or local agencies, or between
persons with developmental disabilities and agencies
receiving state funds. These investigations or
public hearings shall be conducted at the discretion
of the state council only after all other
appropriate administrative procedures for appeal, as
established in state and federal law, have been
fully utilized. (WIC 4540)
6) Establishes 13 local area boards on developmental
disabilities to conduct the local advocacy, capacity
building, and systemic change activities required by
the federal DD Act, and attaches those boards to the
SCDD for administrative purposes only. Establishes
specific duties and defines the composition of the
area boards as follows:
a. The number of voting members, based on the
number of counties that the board represents the
representation of various stakeholders to be
included on each board.
b. The process by which the Governor receives
input in order to make appointments to the area
boards.
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageD
c. That boards meet at least quarterly.
d. The authority to pursue legal, administrative,
and other appropriate remedies to ensure the
protection of the legal, civil, and service rights
of persons who require services or who are receiving
services in the area. State statute authorizes area
boards to appoint a representative to assist the
person in expressing his or her desires and in
making decisions and advocating his or her needs,
preferences, and choices, where the person with
developmental disabilities has no legally authorized
representative and the area board determines will
not be properly protected or advocated without one
being appointed.
e. The responsibility, when appropriate, to
appoint a representative to advocate the rights and
protect the interests of a person residing in a
developmental center for whom community placement is
proposed. (WIC 4543 et seq.) (Public Law 106-402 (42
U.S.C. Sec. 15001)) (WIC 4620 (b))
7)Requires that prior to recommending the establishment of
new geographic boundaries, the state council to hold a
public hearing within any existing area board geographic
area affected by the proposed change and then submit to
the Governor and the Legislature any recommended changes
in area board boundaries. (WIC 4545)
8)Establishes a hiring process for staff of the SCDD,
including that the appointment of the SCDD executive
director and executive directors for each area board be
made by the SCDD Board Chairman with the concurrence of a
majority of the council. Requires the Governor to appoint
a deputy director for area board operations, as
specified. All other state council employees must be
appointed by the executive director, with the approval of
the state council. (WIC 4551)
9)Permits DDS to contract with State Council for the
purpose of utilizing area boards to provide clients'
rights advocacy services to individuals with
developmental disabilities who reside in developmental
centers and state hospitals. States the intent of the
Legislature that area boards maintain local discretion in
the provision of these advocacy services and that the
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageE
state council not direct the advocacy services provided
by area boards. (WIC 4433.5)
This bill:
1)Rewrites statute related to the SCDD and area boards to
clarify that the area boards are not independent entities
but are regional offices of the SCDD, including:
Replaces references to area boards throughout
the statute with references to the State Council.
Removes the statutory structure of the area
boards, including their composition, required
meeting frequency and duties.
Removes the responsibility of area boards to
advocate on behalf of individuals with developmental
disabilities, including the authority to pursue
legal remedies and the authority to appoint legal
representatives on behalf of consumers.
Removes the authority of the governor to
appoint members of each area board.
In place of area boards, establishes state
council regional advisory committees as of December
31, 2014, requires the committees operate according
to policies and procedures that may be established
by the SCDD.
1)Maintains the responsibility of the SCDD, as required in
federal law, by mirroring federal language, re-stating
the federal purpose for the council, and defining the
council's responsibilities with the scope of federal law,
including:
Serve as an advocate for individuals with
developmental disabilities and, through council
members, staff, consultants, and contractors and
grantees, conduct advocacy, capacity building, and
systemic change activities.
Develop and implement the state plan in
accordance with requirements issued by the United
States Secretary of Health and Human Services.
Monitor and evaluate implementation of the
plan.
Serve as the agency responsible for planning
for the provision of federal funds by completing
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageF
specified activities, including issuing grants.
1)Underscores the autonomy of the State Council from the
Governor and Legislature, including:
Revises the hiring practices of SCDD staff to
require the council chairperson to appoint the
executive director and the executive director to
appoint all other staff, as specified.
Deletes the requirement that the Governor
appoint members representing the area boards to the
SCDD as well as 7 at large members and instead
requires that 20 of the 31 voting members be
non-agency members who reflect the socioeconomic,
geographic, disability, racial and ethnic and
language diversity of the state.
Grants the SCDD full authority on the use of
its funds for implementation of the state plan, to
the extent provided for in the federal DD Act.
Requires the SCDD to be the sole entity
responsible for conducting activities necessary to
develop and implement the state plan on
developmental disabilities in the various regions of
the state and requires the state plan to be
responsive to the needs of the state's diverse
communities, as specified.
1)Provides a list of activities that the board may do, in
its discretion, if the activities fit within the state
plan, instead of requiring specified activities,
including:
Supporting and conducting advocacy activities
on a local and statewide basis, including:
self-advocacy, education of policymakers, supporting
new approaches to serving individuals with
developmental disabilities, supporting
geographically based outreach activities, and
others.
Appointing an authorized representative for
individuals to assist the person in expressing his
or her desires and making decisions when the person
has requested a representative be appointed.
Conducting public hearings and forums and the
evaluation and issuance of public reports on the
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageG
programs identified in the state plan, as may be
necessary to carry out the duties of the state
council.
Reviewing and commenting on pertinent portions
of the proposed plans and budgets of all state
agencies, as defined.
Promoting systems change and implementation by
reviewing the policies and practices of publicly
funded agencies serving persons with developmental
disabilities to determine if programs are meeting
their obligations, under local, state, and federal
laws.
FISCAL IMPACT
An analysis by the Assembly Committee on Appropriations
projected state costs for this bill would be negligible,
and that passage of this bill would preserve $6.5 million
in federal grant funding for the State Council on
Developmental Disabilities.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, AB 1595 will make the changes in
state law necessary to come into compliance with the
federal DD Act, which is administered by the Administration
on Intellectual and Developmental Disabilities (AIDD). In
this way, the author writes, the bill will provide for the
continued funding and operation of the State Council on
Developmental Disabilities and its regional offices.
On November 22, 2013, the AIDD limited the state Council's
access to its federal grant until California demonstrates
that it will come into compliance with the federal law that
funds the Council. This bill restructures the scope of the
SCDD to comply with federal law, removing state oversight
of many of its functions including the ability of the
Governor to appoint regional board directors and eliminates
prescriptive language in state statute, including requiring
a specified number of regional boards.
Developmental disabilities
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageH
A developmental disability is defined as 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). In California,
approximately 270,000 individuals with developmental
disabilities are overseen by the state Department of
Developmental Services with local services provided by 21
nonprofit regional centers across the state. Another 1,250
individuals live within California's four developmental
centers.
AIDD
The federal AIDD is responsible for administering the DD
Act, which provides the federal authority for and funds the
Councils on Developmental Disabilities in all states. In
FFY 2011-12, federal funding to state councils was nearly
$75 million. According to a fact sheet on the AIDD's
website,<1> the 56 State Councils on Developmental
Disabilities are federally funded, self-governing
organizations charged with identifying the most pressing
needs of people with developmental disabilities in their
states or U.S. territories. Councils are committed to
advancing public policy and systems change that help
individuals gain more control over their lives by promoting
self-determination, integration, and inclusion, according
to the AIDD.
Federal law directs each state's Council members to be
appointed by a state's governor, and more than 60 percent
of a Council's membership to consist of individuals with
developmental disabilities or their family members.
Councils are directed to focus on empowering individuals
through activities that teach self-advocacy skills and
support self-determination by the creation of five-year
plans to address one or more of seven specified goals.
States must spend a minimum of 70 percent of their federal
funding to address their plan objectives.
State Council on Developmental Disabilities
-------------------------
<1>
http://www.acl.gov/Programs/AIDD/Programs/DDC/index.aspx
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageI
California's Lanterman Act creates the State Council on
Developmental Disabilities (SCDD) and area boards, governs
their operations and requires the Council to fund the area
boards with its federal grant. The Council is comprised of
31 members appointed by the Governor, including individuals
with disabilities, their families, federally funded
partners and state agencies. The SCDD's current state plan,
which spans 2011 to 2016, includes fifteen goals including
helping parents with young children learn to advocate for
services, providing training on new health care changes and
continued work on the SCDD's Employment First Initiative.
The SCDD and its area boards also administer grants to
further the goals of the state plan.
In addition to the work on the state plan, the SCDD works
on other projects. One of those is a joint effort with DDS
and the Human Services Research Institute (HSRI), which is
part of a national effort. The SCDD's effort included
conducting thousands of quality assessment interviews with
consumers using the nationally recognized National Core
Indicators assessment tool.
Another project is the Employment First Initiative, which,
by state statute, requires the SCDD to create a committee
and issue an annual report. The 40-page 2013 report noted
that passage of an Employment First policy (AB 1041,
Chesbro, chapter 677, Statutes of 2013) "is the result of
seven years of work between the Council, stakeholders, the
Legislature, and Administration on ways to improve
employment outcomes for people with developmental
disabilities."
Area boards
California's vast size, complexity, and diversity prompted
the legislature in 1969 to create Area Boards on
Developmental Disabilities, which act independently but
report key issues to the SCDD. The Legislature, in creating
the boards, found that legal, civil, and service rights of
persons with developmental disabilities cannot be
adequately guaranteed throughout the state, and the state
plan cannot be implemented, unless monitoring
responsibility is established on a regional basis through
area boards on developmental disabilities.
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageJ
Statute then went on to prescribe the number of voting
members for each board, based on the number of counties
represented, duration of terms, composition of the board
members, frequency of meetings, and directed which entities
should appoint members to the board, including five
appointed by the Governor. This system has been in place
for decades.
Concerns with California's structure
Federal law requires the state's grant to be administered
by the SCDD free from interference from the state. While
the Governor is charged with appointing members of the
SCDD, the state's prescription of the number of area
boards, governor's appointment of those area board
directors and other prescriptive language in statute is at
odds with the federal requirements. Also at odds with the
federal AIDD are any statutorily required duties of the
State Council which are not provided under federal grant
funding, such as the Employment First Initiative. Although
the initiative is in line with the state's plan and the
federal goals, the requirement in state statute for the
SCDD to convene the committee and issue an annual report
has concerned the IADD.
In 1994 again in 2006 and in 2013, federal reviewers
expressed concern with inconsistencies in the Lanterman Act
and the federal DD Act, and provided recommendations to the
State Council to ensure compliance with the DD Act.
Specifically, in 1994, the AIDD issued a program
administrative review report that cited findings and
provided recommendations for improvement in three key
compliance areas:
Membership: there were multiple vacancies for more
than one year and key positions were not represented;
membership at meetings was poor, the Council was not
fulfilling its advocacy role, the by-laws needed
updating and the vice chair was chairing the Executive
committee, diluting the authority of the chair.
Hiring authority: The Lanterman Act's requirement
that the governor appoint two staff members and that
all other staff members be appointed by the executive
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageK
director upon approval of the Council is in direct
conflict with the federal requirement that all hiring
and supervision be done by the executive director.
This was found to undermine the supervisory authority
of the Executive Director.
Budget: The Lanterman Act's prescriptiveness over
program direction, allocation of the federal DD Act
Funds to area boards and other issues removes
authority of the Council to budget and control federal
funds.
The Council replied with a corrective action plan which,
among other fixes, required the executive director to
interview all staff job candidates and make recommendations
to the Governor's office. It responded to IADD budget
concerns by noting that the Council does not feel
constrained by the requirement to fund area boards because
the Council has chosen to fully fund them. The Council also
responded to other points.
In 2001, the AIDD advised California that the Council was
out of compliance with the DD Act because of its statutory
requirement to fund the area boards. In a Nov. 21, 2001
letter from the state's Health and Human Services
secretary, the state assured AIDD it would remedy the issue
by August 1, 2002. In 2003, the Legislature merged the
Council and Area Boards into a single legal entity and
reclassified Area Board staff as regional office staff in
SB 1364 (Chesbro) Chapter 68, Statutes of 2004.
However, in May 2006, the AIDD conducted a Monitoring and
Technical Assistance Review System (MTARS) to assess
whether the changes resolved the compliance issues. The
MTARS team found a number of concerns, including:
Membership: Similar concerns about lengthy
vacancies preventing the Council from performing its
duties and renewed concerns about the Governor's
Office having undue control over appointments.
Budget: AIDD remained concerned that statute
and the most recent state budget appeared to require
SCDD to provide annual funding to Area Boards,
renewing concern that the Lanterman Act still was in
conflict with the non-conflict provision of federal
law.
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageL
Overlap between Protection and Advocacy and
Area Board Activities: State statute directs the
area boards to engage in legal, administrative and
other appropriate remedies on behalf of consumers.
The federally-granted Protection and Advocacy
organization has the same charge and is engaged in
bringing legal action. The AIDD required SCDD to
submit ongoing updates to ensure the area boards
were not overlapping in this area.
The SCDD acknowledged in a 2007 letter to AIDD that there
were conflicting provisions between the Lanterman Act and
federal DD Act and responded by creating an MTARS task
force. The task force was to include representatives from
the State Council, Governor's office and the legislature to
conduct a comprehensive review of historic issues and
develop strategies to resolve them.
In January 2013, the AIDD conducted a third site review to
assess whether historic issues had been resolved. The MTARS
team found the state remained out of compliance with
several requirements of the DD Act and that AIDD continues
to have significant concerns about the SCDD's autonomy from
state interference in its "federally mandated role as the
primary driver of statewide systems change, advocacy and
capacity building."<2>
In 2013, the AIDD issued a letter to the SCDD that the
Council had been given a high risk designation and would no
longer be receiving a federal grant, but instead would be
placed on a cost reimbursement basis. To obtain payments
for costs incurred, the Council is required to submit a
specified form and specified supporting documents. It also
required the SCDD to submit a corrective action plan in
February 2014 addressing how the state planned to fix all
findings from the three visits and to provide monthly
program progress reports on the plan beginning in March
2014.
In March 2014, a letter from the AIDD noted that the
October expenses had been approved but the AIDD was still
reviewing reimbursement requests from November, December
-------------------------
<2> Administration on Intellectual and Developmental
Disabilities Monitoring and Technical Assistance Review
System report, January 14-17 site visit, page 15.
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageM
and January. "Given the depth of the Council's historic
compliance issues, we anticipate it taking time for the
Council to demonstrate adequate progress for ACL to make an
adequate determination about removing your grant from High
Risk status."
Related legislation:
SB 1364 (Chesbro) Chapter 68, Statutes of 2004, made
changes to the term limits and composition of the SCDD
membership in order to comply with the federal DD Act.
SB 1630 (Chesbro) Chapter 676, Statutes of 2002, was the
Legislature's response to guidance provided by the AIDD in
2001. The bill brought the SCDD and the 13 area boards
into conformity with the federal requirement that federal
developmental disability grant money administered by the
SCDD through the area boards be under the "complete
control" of the SCDD.
PRIOR VOTES
Assembly Floor 73 - 0
Assembly Appropriations 17 - 0
Assembly Human Services 7 - 0
COMMENTS
This bill attempts to resolve conflicting issues between
the Lanterman Act and the federal DD Act, which has been
extensively documented by the AIDD and ultimately resulted
in a suspension of grant funding.
Language from this bill was written by the MTARS workgroup
at the Council, with technical assistance from the AIDD.
The Council, which is the bill's sponsor, states that with
changes made in the most recent amendments, will satisfy
the AIDD sufficiently to remove the Council's high risk
designation, and will restore access to the $6.5 million
federal grant to the Council. However, it is unclear
whether these amendments will go far enough to satisfy the
AIDD's concerns about state interference. Should the AIDD
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageN
provide additional direction, this bill may need to be
amended in the next committee or on the floor.
Additionally, while this bill specifically preserves the
positions of SCDD staff members who were appointed by the
Governor, it is unclear how the state will transition those
positions to civil service classification, and may require
additional language in the next committee.
POSITIONS
Support: Alameda County Developmental Disabilities
Council
Alpha Resource Center of Santa Barbara
Arc of Ventura County
Area 4 Developmental Disabilities Board
Autism Society of Los Angeles
California State Council on Developmental
Disabilities
California Supported Living Network
Developmental Disabilities Area Board 3
Developmental Disabilities Board Area 5
Family Resource Centers Network of
California
San Diego Regional Center
San Diego Unified School District
State Council on Developmental Disabilities
Area Board
State Council on Developmental Disabilities
Area Board 2
State Council on Developmental Disabilities
Area Board 9
State Council on Developmental Disabilities
Area Board XII
State Council on Developmental Disabilities
Area Board XIII
United Cerebral Palsy of San Luis Obispo
VTC Enterprises
3 individuals
Oppose: None received.
-- END --
STAFF ANALYSIS OF ASSEMBLY BILL 1595 (Chesbro)
PageO