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AB-813 Developmental services: alternative dispute resolution.(2019-2020)

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Date Published: 04/24/2019 09:00 PM
AB813:v97#DOCUMENT

Amended  IN  Assembly  April 24, 2019
Amended  IN  Assembly  March 21, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 813


Introduced by Assembly Member Frazier

February 20, 2019


An act to add Division 4.8 (commencing with Section 4910) to the Welfare and Institutions Code, relating to public social services.


LEGISLATIVE COUNSEL'S DIGEST


AB 813, as amended, Frazier. Developmental services: alternative dispute resolution.
The Lanterman Developmental Disabilities Services Act requires the State Department of Developmental Services to contract with regional centers to provide services and supports to individuals with developmental disabilities. Under existing law, the regional centers purchase needed services for individuals with developmental disabilities through approved service providers or arrange for those services through other publicly funded agencies. Existing law requires a regional center to have a fair hearing procedure and afford an applicant for or recipient of services, or the authorized representative of the applicant or recipient, the opportunity for a fair hearing, or to request a voluntary informal meeting or voluntary mediation, if they are dissatisfied with any decisions of the regional center, as specified. Existing law requires the department to implement a mediation process to be used if mediation is requested and agreed to.
This bill would require each regional center to establish a dispute resolution program to hear and decide disputes between the regional center and consumers regarding the provision of services and eligibility for services. The bill would authorize the department to establish a grant program to provide funding to regional centers to establish the dispute resolution programs and enable regional centers to operate the dispute resolution programs, as specified. The bill would establish guidelines standards for the operation of the dispute resolution programs, including by, among others, requiring regional centers to provide consumers indicating an intention to utilize the dispute resolution process with a specified written statement and specifying the applicable rules of evidence for the dispute resolution proceedings.
The bill would also create within the department a Developmental Disabilities Dispute Resolution Advisory Council comprised of 7 persons, the Chair of the State Council on Developmental Disabilities, 4 appointed by the Governor, one appointed by the Senate Rules Committee, and one appointed by the Speaker of the Assembly, with specified qualifications. The bill would require the advisory council to, among other things, adopt rules and regulations for the dispute resolution programs and would require the department, beginning January 1, 2021, or an earlier date by which the advisory council completes its duties, to periodically review the effectiveness of rules and regulations for the dispute resolution programs, adopt changes as necessary, and monitor and evaluate the programs as to their compliance with the rules and regulations.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Division 4.8 (commencing with Section 4910) is added to the Welfare and Institutions Code, to read:

DIVISION 4.8. Dispute Resolution for Individuals with Developmental Disabilities

CHAPTER  1. Definitions

4910.
 As used in this division, the following terms have the following meanings:
(a) “Advisory Council” means the Developmental Disabilities Dispute Resolution Advisory Council established pursuant to Section 4911.
(b) “Consumer” means an individual who receives, or has been determined to be eligible to receive, services from a regional center or for whom a regional center has commenced the purchase of services process in advance of completing the eligibility determination.
(c) “Dispute resolution” includes, but is not limited to, mediation, conciliation, and arbitration.
(d) “Program” means a dispute resolution program established pursuant to Section 4913. 4913 or 4914.

CHAPTER  2. Developmental Disabilities Dispute Resolution Advisory Council

4911.
 (a) There is in the State Department of Developmental Services a Developmental Disabilities Dispute Resolution Advisory Council. The advisory council shall complete the duties required by this division no later than January 1, 2021.
(b) (1) The advisory council shall consist of seven persons. One member shall be the Chair of the State Council on Developmental Disabilities, four members shall be appointed by the Governor, one member shall be appointed by the Senate Rules Committee, and one member shall be appointed by the Speaker of the Assembly.
(2) At least four persons appointed to the advisory council shall have a minimum of three years of professional experience that includes all of the following:
(A) Intellectual or developmental disabilities or other relevant social services or health services programs.
(B) The legal system and the legislative process.
(C) Dispute resolution or problem resolution techniques, including investigation, mediation, and negotiation.
(D) Organizational management and program administration.
(3) The professional experience described in paragraph (2) requires any reasonable combination of three years of experience in the areas described and does not require three years of experience in each area. A master’s degree in a field related to one of the areas described may be substituted for one year of professional experience and a doctoral degree in a field related to one of the areas described may be substituted for two years of professional experience, but the person’s professional experience and the field in which the person earned the master’s or doctoral degree shall include the areas described.
(4) At least four persons appointed to the advisory council shall have a minimum of two years of direct experience in utilizing dispute resolution techniques.
(5) The members of the advisory council shall reflect the racial, ethnic, sexual, and geographic diversity of the State of California.

4912.
 The members of the advisory council shall not receive a salary for their services but shall be reimbursed for their actual and necessary travel and other expenses incurred in the performance of their duties.

CHAPTER  3. Establishment and Administration of Program

4913.
 (a) (1) Except as otherwise described in Section 4914, regional centers shall establish a dispute resolution program to serve the consumers of the regional center.
(2) The program shall be neutral and shall be housed in the regional center, with the responsibility of hearing and deciding disputes between the regional center and consumers regarding the provision of services and eligibility for services.
(3) The program A program established by this section or Section 4914 shall comply with all of the requirements of this division and the rules and regulations promulgated by the advisory council pursuant to Section 4921. 4920.
(4) A program established by this section or Section 4914 shall provide a consumer with the right to appeal a decision in accordance with the fair hearing process provided by Section 4712.
(b) (1)Each regional center, at the time services are authorized or eligibility for services is reviewed, shall inform the consumer orally and in writing of the availability and purpose of the program, and shall inform the consumer that any decision regarding the provision of services or eligibility for services may be disputed by the consumer through the program. all of the following:
(1) The availability and purpose of the program.
(2) That any decision regarding the provision of services or eligibility for services may be disputed by the consumer through the program.
(3) The schedule of the costs associated with participation in the alternative dispute resolution program, including the availability of fee waivers for indigent consumers.
(4) That refusing to participate in the alternative dispute resolution program does not preclude the consumer from receiving any service or benefit from the regional center.
(5) Information regarding all other processes provided by law for contesting the decision of a regional center or service provider.
(6) Information regarding the consumer’s right to appeal the outcome of the alternative dispute resolution process and an explanation of the procedures necessary to do so.

(2)

(c) All purchase of service, service eligibility, and individual program plan documents shall include information regarding the availability and purpose of the program program, including the information required by subdivision (b), in a clearly readable and accessible manner.

4914.
 The State Department of Developmental Services may establish a grant program to provide funding to regional centers to establish the program and enable the program to be operated under the requirements of this division and the rules and regulations developed by the advisory council. Regional centers may enter into an agreement with other regional centers to establish a program required by this division on a regional basis.

4915.

A regional center shall not be eligible for funding under this division unless it meets all of the following requirements:

(a)Compliance with this division and the applicable rules and regulations of the advisory council.

(b)Provision of neutral persons adequately trained in conflict resolution techniques as required by the rules and regulations promulgated by the advisory council pursuant to Section 4921.

(c)Provision of dispute resolution, on a sliding scale basis, and without cost to indigent consumers.

(d)Provision that, upon consent of the parties, a written agreement or an award resolving a dispute will be issued setting out a settlement of the issues involved in the dispute and the future responsibilities of each party.

(e)Provision of neutral procedures applicable equally to all participants without any special benefit or consideration given to persons or entities providing funding for the program.

(f)Provision that participation in the program is voluntary and that the parties are not coerced to enter dispute resolution.

(g)Provision of alternative dispute resolution is the primary purpose of the program.

(h)The program is operated primarily for the purposes of dispute resolution, consistent with the purposes of this division.

4916.

A program established pursuant to this division shall provide consumers indicating an intention to utilize the dispute resolution process with a written statement prior to the dispute resolution proceeding, in language easy to read and understand, stating all of the following:

(a)The nature of the dispute.

(b)The nature of the dispute resolution process.

(c)The rights and obligations of the parties, including, but not limited to, both of the following:

(1)The right to call and examine witnesses.

(2)The right of the parties to be accompanied by counsel, who may participate as permitted under the rules and procedures of the program.

(d)The procedures under which the dispute resolution will be conducted.

(e)If the parties enter into arbitration, whether the dispute resolution process will be binding.

4917.

(a)An agreement resolving a dispute entered into with the assistance of a program shall not be enforceable in a court nor shall it be admissible as evidence in any judicial or administrative proceeding, unless the consent of the parties or the agreement includes a provision that clearly states the intention of the parties that the agreement or any resulting award shall be so enforceable or admissible as evidence.

(b)The parties may agree in writing to toll the applicable statute of limitations during the pendency of the dispute resolution process.

4915.
 Prior to the commencement of a proceeding pursuant to the alternative dispute resolution process provided by this division, the regional center or service provider shall provide the consumer with a notice stating all of the following:
(a) The nature of the dispute.
(b) The nature of the dispute resolution process.
(c) The rights and obligations of the parties, including, but not limited to, both of the following:
(1) The right to call and examine witnesses.
(2) The right of the parties to be accompanied by counsel, who may participate as permitted under the rules and procedures of the program.
(d) The procedures under which the dispute resolution will be conducted.
(e) That all proceedings, including arbitrations, may be appealed and that a consumer unsatisfied with the decision of the dispute resolution program is entitled to seek a fair hearing in accordance with Section 4712.

4916.
 The applicable statute of limitations shall be tolled during the pendency of the dispute resolution process and fair hearing process.

4918.4917.
 (a) Notwithstanding the express application of Chapter 2 (commencing with Section 1115) of Division 9 of the Evidence Code to mediations, all proceedings conducted by a program, including, but not limited to, arbitrations and conciliations, mediations and conciliations are subject to Chapter 2 (commencing with Section 1115) of Division 9 of the Evidence Code.
(b) All arbitration proceedings conducted through the alternative dispute resolution program shall be conducted in accordance with Chapter 3 (commencing with Section 1282) of Title 9 of Part 3 of the Code of Civil Procedure. An alternative dispute resolution program shall not require a consumer to waive any of the rights and procedures provided by the Code of Civil Procedure.

4919.4918.
 Each program shall maintain those statistical records required by Section 4923, 4922, and as may be required by the regional center. The records shall maintain the confidentiality and anonymity of the parties.

4920.4919.
 (a) Unless the parties have agreed to a binding award, nothing in this division shall be construed to This division does not prohibit any person who voluntarily enters the dispute resolution process from revoking their consent, withdrawing from dispute resolution, and seeking judicial or administrative redress.
(b) In cases in which a criminal complaint has been filed by a prosecutor, other than for an infraction, the advice of counsel shall be obtained before any dispute resolution process is initiated. Nothing in this subdivision shall be construed to This division does not preclude a defendant from knowingly and voluntarily waiving the right to counsel. A defendant who indicates a desire to waive the right to counsel shall be encouraged to consult with the public defender or private counsel before waiving that right.

CHAPTER  4. Rules and Regulations

4921.4920.
 (a) The advisory council shall adopt rules and regulations to effectuate the purposes of this division, including, but not limited to, guidelines specific standards to be used by the programs for the recruitment and training of persons conducting dispute resolution, and provisions for periodic monitoring and evaluation of the programs. The advisory council shall establish guidelines standards to evaluate the performance of programs, which shall include analysis of court caseload reduction, cost savings to the state, and the efficacy of the programs.
(b) (1) The advisory council shall adopt temporary guidelines standards within six months of its initial meeting. The adoption of these temporary guidelines standards shall not be subject to the procedures specified in Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(2) Upon the adoption of the temporary guidelines, standards, the State Department of Developmental Services may award grants pursuant to this division. Programs shall comply with the temporary guidelines, standards, the requirements of this division and, when adopted, the formal rules and regulations.
(c) Formal rules and regulations implementing this division shall be adopted pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code and, upon adoption, shall supersede the temporary guidelines standards adopted pursuant to subdivision (b).
(d) On and after January 1, 2021, or an earlier date by which the advisory council completes its duties pursuant to this division, the State Department of Developmental Services shall periodically review the effectiveness of the rules and regulations adopted pursuant to this division and adopt changes thereto as necessary. It shall also monitor and evaluate the programs as to their compliance with those rules and regulations.
(e) The Director of Developmental Services shall administer and enforce this chapter and the rules and regulations adopted pursuant to this division.

4922.4921.
 The rules and regulations adopted by the advisory council pursuant to Section 4921 4920 shall be formulated to promote statewide uniformity with the guidelines standards contained in those rules and regulations.

4923.4922.
 Each program shall annually provide the State Department of Developmental Services with statistical data regarding its operating budget; the number of referrals, categories, or types of cases referred to the program; the number of persons served by the program; the number of disputes resolved; the nature of the disputes resolved; rates of compliance; the number of persons utilizing the process more than once; the duration of, and the estimated costs of, the hearings conducted by the program; and any other information that the department may require. The data shall maintain the confidentiality and anonymity of the persons employing the dispute resolution process.