Ddra - Draft 2 - 08.27.09 - Large Print

DDRA, Draft 2 - August 27, 2009
1
2
3
4 A BILL
5
6 _______
7
8 IN THE COUNCIL OF THE DISTRICT OF
9 COLUMBIA
10
11 ______________
12
13
14 Councilmembers ____________ introduced the
15 following bill, which was referred to the Committee
16 on _______________.
17
18
19 DEVELOPMENTAL DISABILITIES REFORM
20 ACT OF 2009
21
22 TABLE OF CONTENTS
23
24 TITLE I. DEVELOPMENTAL DISABILITIES
25 RIGHTS AND SERVICES. ................................................................. 17
1
1 Sec. 101. Short title............................................. 17

2 Sec. 102. Findings and purpose. ......................... 17
3 Sec. 103. Definitions........................................... 24
4 Sec. 104. Rights. ................................................. 58
5 Sec. 105. Rights of persons formerly committed
6 and former Forest Haven residents. ..................... 69
7 Sec. 106. Eligibility. ........................................... 71
8 Sec. 107. Advocate program............................... 85
9 Sec. 108. Legal services program. .................... 100
10 Sec. 109. Support and service planning. ........... 109
11 Sec. 110. Support coordination......................... 117
12 Sec. 111. Supports and services........................ 125
13 Sec. 112. Family support services. ................... 131
14 Sec. 113. Family Support Council. ................... 135
15 Sec. 114. Waiting lists. ..................................... 142
16 Sec. 115. Capacity and decision-making supports;
17 health-care decisions.......................................... 155
18 Sec. 116. Independent panel for administration of
19 psychotropic medications. ................................. 162
20 Sec. 117. Complaints; requests for fair hearings.
21 ........................................................................... 170
22 Sec. 118. Internal problem resolution system;
23 appeals of ineligibility. ...................................... 173
24 Sec. 119. Petition for review of agency action
25 under this act...................................................... 187
2
1 Sec. 120. Initiation of action to compel rights; civil

2 remedy; sovereign immunity barred; defense to
3 action; payment of expenses. ............................. 191
4 Sec. 121. Deprivation of civil rights; liability;
5 immunity; exceptions......................................... 193
6 Sec. 122. Records. ............................................ 194
7 Sec. 123. Quality standards and monitoring. .... 200
8 Sec. 124. Reporting and investigation of abuse,
9 neglect, and exploitation. ................................... 207
10 Sec. 125. Checks of criminal background, abuse
11 and neglect registries, and traffic record............ 212
12 Sec. 126. Registry of former employees terminated
13 because of substantiated acts of abuse or neglect
14 and convictions. ................................................. 233
15 Sec. 127. Services for persons found incompetent
16 in a criminal case. .............................................. 242
17 Sec. 128. Court-appointed advocates for persons
18 found incompetent in a criminal case. ............... 261
19 Sec. 129. Legislative review and reporting....... 270
20 Sec. 130. Plain language required; plans and
21 reports to be made available to the public. ........ 281
22 Sec. 131. Rulemaking. ...................................... 282
23 Sec. 132. Comprehensive Developmental
24 Disabilities Services Task Force........................ 283
3

2 Disabilities Services Plan................................... 288
3 Sec. 134. Repeal of Mentally Retarded Citizens
4 Constitutional Rights and Dignity Act............... 299
5 TITLE II. TRANSITION FROM ADMISSION
6 AND COMMITMENT. .............................................................................. 300
7 Sec. 201. Short title........................................... 300
8 Sec. 202. Purpose.............................................. 300
9 Sec. 203. Definitions......................................... 302
10 Sec. 204. Transition period. .............................. 312
11 Sec. 205. New admission and commitment
12 prohibited during transition period. ................... 314
13 Sec. 206. Preparation for completion of transition
14 period ................................................................. 315
15 Sec. 207. Completion of transition period. ....... 320
16 Sec. 208. Rights during transition period. ........ 326
17 Sec. 209. Support planning during transition
18 period. ................................................................ 328
19 Sec. 210. Transfer during transition period. ..... 329
20 Sec. 211. Request for termination of commitment
21 during transition period...................................... 332
22 Sec. 212. Annual hearing during transition period.
23 ........................................................................... 335
24 Sec. 213. Hearing procedures during transition
25 period. ................................................................ 338
4
1 Sec. 214. Court-appointed advocates during

2 transition period. ................................................ 342
3 Sec. 215. Transfer of functions upon completion
4 of transition period............................................. 351
5 Sec. 216. Sunset. ............................................... 354
6 TITLE III. AMENDMENTS TO THE
7 DEPARTMENT ON DISABILITY SERVICES
8 ESTABLISHMENT ACT. ...................................................................... 354
9 Sec. 301. Short title........................................... 354
10 Sec. 302. The Department on Disability Services
11 Establishment Act of 2006................................. 355
12 TITLE IV. CONFORMING AMENDMENTS. ........ 367
13 Sec. 401. Section 2 of the People First Respectful
14 Language Modernization Act ............................ 367
15 Sec. 402. Section 6 of the Office of Administrative
16 Hearings Establishment Act of 2001 ................. 370
17 Sec. 403. The Adult Protective Services Act of
18 1984 ................................................................... 370
19 Sec. 404. Chapter 20 of Title 21 ....................... 377
20 Sec. 405. The Incompetent Defendants Criminal
21 Commitment Act of 2004 .................................. 379
22 Sec. 406. Section 3(b) of the State Education
23 Office Establishment Act of 2000 ..................... 386
24 Sec. 407. Subtitle H of the Fiscal Year 2010
25 Budget Support Act of 2009 .............................. 387
5
1 TITLE V. FISCAL IMPACT STATEMENT. ............. 387

2 TITLE VI. EFFECTIVE DATE. ................................................... 388
3
4 To identify findings and the intent of the Council
5 regarding District residents with developmental
6 disabilities and their families; to establish the
7 rights of District residents with developmental
8 disabilities; to establish eligibility determination
9 processes and procedures at the Department on
10 Disability Services, Developmental Disabilities
11 Administration and to change eligibility criteria
12 over a 3-year period from a diagnosis of
13 intellectual disability to a diagnosis of
14 developmental disability; to establish a program
15 to provide advocates to adults who are eligible
16 for services at the Department on Disability
17 Services, Developmental Disabilities
18 Administration; to establish a program to
19 provide legal services to adults who are eligible
20 for services at the Department on Disability
22 Administration; to establish requirements for
23 support and service planning at the Department
24 on Disability Services, Developmental
25 Disabilities Administration; to identify the
6
1 duties of support coordinators at the Department

3 Disabilities Administration; to require a
4 comprehensive, coordinated system of supports
5 at services for persons with developmental
6 disabilities at the Department on Disability
8 Administration; to require a comprehensive,
9 coordinated system of family support services at
10 the Department on Disability Services,
11 Developmental Disabilities Administration; to
12 establish a Family Support Council to assist the
13 Department on Disability Services,
14 Developmental Disabilities Administration in
15 providing a comprehensive, coordinated system
16 of family support services; to clarify that adults
17 with developmental disabilities shall be
18 presumed capable of making decisions and to
19 identify the circumstances in which a provider or
20 the Department on Disability Services,
21 Developmental Disabilities Administration may
22 seek the provision of substituted consent; to
23 identify the circumstances in which the
24 Department on Disability Services may establish
25 a waiting list for services at the Developmental
7
1 Disabilities Administration and to require the

2 Department on Disability Services to report on
3 the waiting list on a quarterly and annual basis;
4 to establish an independent panel to grant,
5 refuse, or withhold consent for administration of
6 psychotropic medications to persons who have
7 been certified as incapacitated to consent to the
8 psychotropic medication and who lack a
9 substituted decision-maker listed in D.C.
10 Official Code § 21-2210(a); to identify general
11 procedures for complaints and requests for
12 hearings under this act and to prohibit retaliation
13 against a person who files a complaint or
14 requests a hearing; to establish a system to
15 resolve complaints against the Department on
17 Administration operated by a problem resolution
18 office within the Department on Disability
19 Services; to provide a process for petition for
20 review of agency action under this act by the
21 Family Court of the Superior Court; to provide
22 the right to initiate action in the Superior Court
23 to compel the rights afforded to persons under
24 this act and to provide the right to a civil
25 remedy; to prohibit deprivation of civil rights on
8
1 the basis of receipt of services under this act and

2 to establish liability, immunity and exceptions
3 for violations of rights or privileges protected by
4 this act; to require the Department on Disability
6 Administration to maintain records on all
7 persons found eligible for services under this
8 act, to permit sharing of records in certain
9 circumstances and to prohibit unauthorized
10 release of records; to require the Department on
12 Administration to develop and implement a
13 comprehensive quality management and
14 improvement system; to require mandatory
15 reporting of suspected abuse, neglect, and
16 exploitation and to authorize the Department on
18 Administration to investigate reports of alleged
19 abuse, neglect, self-neglect, and exploitation of
20 persons who have been found eligible for
21 services under this act; to require checks of
22 criminal background, abuse and neglect
23 registries, and traffic records for all employees
24 and all unsupervised volunteers at the
25 Department on Disability Services,
9
1 Developmental Disabilities Administration,

2 providers, and the advocate program, and to
3 prohibit any person with one of a list of felony
4 convictions from working on a paid or unpaid
5 basis at the Department on Disability Services,
6 Developmental Disabilities Administration,
7 providers, and the advocate program; to
8 establish a registry of former employees
9 terminated by the Department on Disability
11 Administration, providers, and the advocate
12 program because of substantiated acts of abuse
13 or neglect and convictions; to authorize the
14 commitment of and services for persons who
15 have been found incompetent to stand trial in a
16 criminal case due to intellectual disability; to
17 require the Superior Court to provide advocates
18 for persons who have been found incompetent to
19 stand trial in a criminal case due to intellectual
20 disability and are undergoing or have been
21 committed to the care of the Department on
22 Disability Services; to require the Mayor to
23 submit to the Council an annual report on all
24 activities carried out under this act, to conduct a
25 10-year review of this act, and to produce
10
1 quarterly reports until October 2010 on all

2 substituted consent activities under this act; to
3 authorize the Director of the Department on
4 Disability Services to issue rules as necessary to
5 implement the provisions of this act; to establish
6 a Comprehensive Developmental Disability
7 Services Task Force to develop a comprehensive
8 plan for the District to meet the current and
9 future community living needs of residents with
10 developmental disabilities and their families; to
11 require the Comprehensive Developmental
12 Disability Services Task Force to publish a
13 Comprehensive Developmental Disability
14 Services Plan by 9 months after the effective
15 date of this act and to assist the Director of the
16 Department on Disability Services to develop
17 implementing regulations; to repeal the Mentally
18 Retarded Citizens Constitutional Rights and
19 Dignity Act of 1978; to identify the intent of the
20 Council to provide for a 36-month transition
21 period after the effective date of this act; to
22 establish a 36-month transition period during
23 which persons will continue to be committed to
24 the care of the Department on Disability
25 Services and which will only end if the District
11
1 meets certain benchmarks; to prohibit new

2 commitments during the transition period and to
3 require the continued commitment of persons
4 found incompetent to stand trial in a criminal
5 case; to require the Superior Court and the
6 District to work collaboratively to plan for
7 termination of the 3-year transition period and to
8 require the District to prepare a work plan for
9 termination of the transition period and conduct
10 a survey to determine the level of need for
11 advocates and attorneys after the transition
12 period ends; to provide that the commitment of
13 persons to the care of the Department on
14 Disability Services shall end 3 years after the
15 effective date of this act only if the Mayor
16 certifies that the District has completed the work
17 plan, completed the survey, adequately funded
18 for advocates and legal services, and
19 implemented the internal problem resolution
20 system required under Title I and the Council
21 does not disapprove the Mayor’s certification
22 and plan; to establish rights for persons who are
23 committed during the transition period; to
24 provide that support planning during the
25 transition period will be conducted in
12
1 accordance with Title I; to provide a process for

2 residential transfer of persons who are
3 committed during the transition period; to
4 provide a process for persons to request
5 termination of his or her commitment during the
6 transition period; to require an annual hearing by
7 the Superior Court to review each person’s
8 commitment during the transition period; to
9 establish procedures for Superior Court hearings
10 under this act during the transition period; to
11 require the Superior Court to provide advocates
12 to all persons who are committed to the care of
13 the Department on Disability Services during the
14 transition period; to transfer the functions of the
15 advocate program upon termination of the
16 transition period, to require the Department on
17 Disability Services to offer any displaced Court
18 employee a right of first refusal by the advocate
19 program established in Title I, and to allow the
20 legal services program established in Title I to
21 employ attorneys who were formerly appointed
22 by the Court to represent persons who were
23 committed to the care of the Department on
24 Disability Services; to repeal Title I 6 months
25 after the completion of the transition period; to
13
1 amend the Department on Disability Services

2 Establishment Act to establish the
3 Developmental Disabilities Administration and
4 the Rehabilitation Services Administration
5 within the Department on Disability Services, to
6 authorize the Department on Disability Services
7 to identify and enforce violations of certain
8 sections of Title I, to authorize the Department
9 on Disability Services to make grants and
10 provide one-time cash assistance, and to require
11 the Department on Disability Services by
12 delegation from the Mayor to enter into
13 interstate agreements or compacts to permit
14 checking registries of abuse and neglect
15 maintained by states; to identify the Department
17 Disabilities Administration as the lead agency
18 for supports and services for persons with
19 developmental disabilities and their families and
20 to require interagency agreements to facilitate
21 interagency coordination; to amend the People
22 First Respectful Language Modernization Act of
23 2006 to prohibit use of the term “mental
24 retardation” in all District laws, regulations, and
25 publications and to clarify that where the District
14
1 previously used the term “mental retardation” it

2 shall use the term “intellectual disability”; to
3 amend the Office of Administrative Hearings
4 Establishment Act of 2001 to add the
5 Department on Disability Services to the list of
6 agencies for which the Office of Administrative
7 Hearings adjudicates cases; to amend the Adult
8 Protective Services Act of 1984 to require
9 employees of the Department on Disability
11 Administration and providers to report suspected
12 abuse, neglect, and exploitation, to require the
13 Mayor to designate the Department on Disability
15 Administration to investigate reports of alleged
17 persons who have been found eligible for
18 Developmental Disabilities Administration
19 services, and to require that petitions for
20 guardians filed under this act will be least
21 restrictive to personal liberty; to amend Chapter
22 20 of Title 21 to define “substituted judgment”
23 as taking into account the expressed wishes of
24 the person, to remove references to commitment
25 under the Mentally Retarded Citizens
15
1 Constitutional Rights and Dignity Act of 1978,

2 and to permit the Department on Disability
3 Services to petition for removal of a guardian for
4 a person who is receiving services from the
5 agency; to amend the Incompetent Defendants
6 Criminal Commitment Act of 2004 to make
7 conforming amendments; to amend the State
8 Education Office Establishment Act of 2000 to
9 require the State Education Office to promote
10 coordination between public, public charter
11 schools, and agencies that provide supports and
12 services for children and youth with disabilities;
13 to repeal Subtitle H of the Fiscal Year 2010
14 Budget Support Act of 2009 (2nd engrossed
15 version).
16
17 BE IT ENACTED BY THE COUNCIL OF
18 THE DISTRICT OF COLUMBIA, That
19 this act may be cited as the “Developmental
20 Disabilities Reform Act of 2009”.
16
1 TITLE I. DEVELOPMENTAL DISABILITIES
2 RIGHTS AND SERVICES.
3 Sec. 101. Short title.
4 This act may be cited as the “Developmental
5 Disabilities Rights and Services Act of 2009”.
6 Sec. 102. Findings and purpose.
7 (a) The Council finds that:
8 (1) District residents with developmental
9 disabilities have all the civil and legal rights enjoyed
10 by all other residents of the District and the United
11 States;
12 (2) For 30 years, the Mentally Retarded
13 Citizens Constitutional Rights and Dignity Act of
17
1 1978, effective March 3, 1979 (D.C. Law 2-137;
2 D.C. Official Code § 7-1301.02 et seq.) has required
3 the voluntary admission or involuntary commitment
4 of persons with developmental disabilities to
5 residential facilities through the Superior Court.
6 However, this process no longer reflects the
7 structure of the District’s service system, the
8 requirements under federal laws and programs, state
9 and national best practices, and contemporary
10 knowledge of the rights, abilities, and preferences of
11 persons with developmental disabilities;
12 (3) All District residents benefit when
13 persons with developmental disabilities live with
18
1 independence and dignity in the most inclusive and
2 most integrated community setting possible and
3 have the freedom and opportunity to fully participate
4 in the cultural, economic, educational, political, and
5 social fabric of their communities;
6 (4) Residents with developmental
7 disabilities are effective advocates who speak up on
8 their own behalf and should be engaged as active
9 partners by District government, service providers,
10 and community members;
12 disabilities are best able to determine their own
13 needs and should be afforded all the information,
19
1 opportunities, support, and reasonable
2 accommodations required to make meaningful
3 choices about where they live, work, and play and,
4 to the greatest extent possible, to control the design
5 and delivery of their services;
7 disabilities are capable of making and verbally,
8 nonverbally, and behaviorally communicating
9 decisions about their personal care, health care, legal
10 matters, financial affairs, business, assets, and all
11 other aspects of their lives; and
12 (7) Families, by far, provide the greatest
13 quantity and, in many instances, quality of services
20
1 and support for their family members with
2 developmental disabilities.
3 (b) The Council therefore declares that the
4 District shall implement a model system of effective,
5 quality supports and services for residents with
6 developmental disabilities and for their families,
7 which:
8 (1) Fully recognizes the person’s rights,
9 abilities, and preferences;
10 (2) Is rooted in best practices, ongoing
11 innovation, and standards of excellence;
21
1 (3) Removes universal requirements for
2 admission or commitment to residential services
3 through the Superior Court;
4 (4) Seeks to maintain a high quality of life
5 and encourages the maximum development of the
6 ability and potential of each person;
7 (5) Offers flexibility and a full range of
8 service options, including comprehensive family
9 support throughout the life of the person;
10 (6) Adopts an individualized, person-
11 centered approach that is responsive to the unique
12 strengths, abilities, needs, culture, values, and
13 preferences of each person and family;
22
1 (7) Builds familial and community support
2 and ensures that each person has meaningful
3 opportunities to develop and maintain relationships
4 with family, friends, coworkers, and others;
5 (8) Offers multiple options for problem
6 resolution and provides access to advocates and
7 legal services;
8 (9) Is delivered by a diverse workforce that
9 is well-qualified, highly motivated, receives ongoing
10 training, demonstrates necessary skills, and regularly
11 uses best practices; and
12 (10) Is distributed with fairness and equity
13 and produces measurable results that demonstrate
23
1 that the supports and services have met the goals and
2 needs of, and satisfied, each person and family.
3 Sec. 103. Definitions.
4 For the purposes of this act:
5 (1) “Abuse” has the same meaning as in section
6 2 of the Adult Protective Services Act of 1984,
7 effective March 14, 1985 (D.C. Law 5-156; D.C
8 Official Code § 7-1901).
9 (2) “Administrative Procedure Act” or “APA”
10 means Chapter 5 of Title 2.
11 (3) “Advanced practice registered nurse”
12 includes a nurse-practitioner or a clinical nurse
13 specialist, licensed pursuant to D.C. Official Code §
24
1 3-1202.04 and Chapter 59 or Chapter 60 of Title 17
2 of the District of Columbia Municipal Regulations,
3 who has been certified as a specialist in psychiatry
4 and mental health.
5 (4) “Advocate” means a member of the group of
6 advocates appointed by the advocate program
7 pursuant to section 107 or by the Superior Court
8 pursuant to section 128.
9 (5) “Behavior support plan” means a written
10 plan that, at a minimum:
11 (A) Identifies challenging or problematic
12 behavior;
25
1 (B) States the working hypothesis about the
2 cause of the person’s behavior and uses the working
3 hypothesis as the basis for the selected intervention;
4 (C) Identifies strategies to teach or
5 encourage the person to adopt adaptive behavior as
6 an alternative to the challenging or problematic
7 behavior;
8 (D) Considers the potential for
9 environmental or programmatic changes that could
10 have a positive impact on challenging or problematic
11 behaviors; and
26
1 (E) Addresses the person’s need for
2 additional technological or supervisory assistance to
3 adapt or cope with day to day activities.
4 (6) “Best interests” means promoting personal
5 well-being by assessing:
6 (A) The reason for the proposed action, its
7 risks and benefits, and any alternatives considered
8 and rejected; and
9 (B) The least intrusive, least restrictive, and
10 most normalizing course of action possible to
11 provide for the needs of the person.
12 (7) “Capacity” means the ability, with support,
13 to make and carry out a decision by means of mental
27
1 ability, behavior, or both regarding the situation or
2 subject matter involved.
3 (8) “Cause injury to others as a result of the
4 person’s intellectual disability” means cause injury
5 to others as a result of deficits in adaptive
6 functioning associated with intellectual disability.
7 (9) “CFSA” means the Child and Family
8 Services Agency established by § 4-1303.01a.
9 (10) “Civil commitment” means the
10 commitment to the care of the DDS, pursuant to a
11 court order, of a person found incompetent in a
12 criminal case at the request of the District.
28
1 (11) “Complaint” means a description of a
2 person’s dissatisfaction with his or her supports and
3 services, including denials of supports and services,
4 delays in supports and services, failures to provide
5 supports and services, or violations or limitations of
6 rights of the person involving programs, personnel,
7 supports, or services.
8 (12) “Comprehensive screening” means the
9 comprehensive screening conducted in accordance
10 with section 106.
11 (13) “Court” means the Superior Court of the
12 District of Columbia.
29
1 (14) “Crime of violence” has the same meaning
2 as in § 23-1331(4).
3 (15) “Criminal background check” means the
4 investigation of an individual’s criminal history
5 through the record systems of the Federal Bureau of
6 Investigation and the Metropolitan Police
7 Department.
8 (16) “DCPS” means the District of Columbia
9 Public Schools.
10 (17) “DDA” means the Developmental
11 Disabilities Administration of the Department on
12 Disability Services.
30
1 (18) “DDS” means the Department on
2 Disability Services established by the Department on
3 Disability Services Establishment Act of 2006,
4 effective March 14, 2007 (D.C. Law 16-264; D.C.
5 Official Code § 7-761.01 et seq.).
6 (19) “Developmental Disabilities State Planning
7 Council” means the District of Columbia
8 Developmental Disabilities State Planning Council,
9 established by Mayor's Order 98-7, issued on
10 January 21, 1998 (45 DCR 882).
11 (20) (A) “Developmental disability” means, in
12 general, a severe chronic disability of a person that:
31
1 (1) Is attributable to a physical or
2 mental impairment, other than the sole diagnosis of
3 mental illness, or to a combination of mental and
4 physical impairments;
5 (2) Is manifested before the person
6 attains the age of 22;
7 (3) Is likely to continue indefinitely;
8 (4) Results in substantial functional
9 limitations in 3 or more of the following areas of
10 major life activity:
11 (i) Self-care;
12 (ii) Receptive and expressive
13 language;
32
1 (iii) Learning;
2 (iv) Mobility;
3 (v) Self-direction;
4 (vi) Capacity for independent
5 living; and
6 (vii) Economic self-sufficiency; and
7 (5) Reflects the person’s need for a
8 combination and sequence of special,
9 interdisciplinary, or generic services, individualized
10 supports, or other forms of assistance that are of
11 lifelong or extended duration and are individually
12 planned and coordinated.
33
1 (B) A person from birth to age 9, inclusive,
2 who has a substantial developmental delay or
3 specific congenital or acquired condition, may be
4 considered to have a developmental disability
5 without meeting 3 or more of the criteria described
6 in clauses (1) through (5) of subparagraph (A) of this
7 paragraph if the person, without supports and
8 services, has a high probability of meeting those
9 criteria later in life.
10 (21) “DHCF” means the Department of Health
11 Care Finance established by the Department of
12 Health Care Finance Establishment Act of 2007,
13 effective February 27, 2008 (D.C. Law 17-109; D.C
34
1 Official Code § 7-771.01 et seq.) and responsible for
2 administering the District’s Medical Assistance
3 Program.
4 (22) “DHS” means the Department of Human
5 Services.
6 (23) “DMH” means the Department of Mental
7 Health established by the Department of Mental
8 Health Establishment Amendment Act of 2001,
9 effective December 18, 2001 (D.C. Law 14-56; D.C.
11 (24) “DOH” means the Department of Health.
35
1 (25) “DSM-IV-TR” means the most recent
2 version of the Diagnostic and Statistical Manual of
3 Mental Disorders.
4 (26) “DSM-IV-TR ‘V’ Codes” means “V” codes
5 as defined in the most recent version of the
6 Diagnostic and Statistical Manual of Mental
7 Disorders.
8 (27) “DYRS” means the Department of Youth
9 Rehabilitation Services established by the
10 Department of Youth Rehabilitation Services
11 Establishment Act of 2004, effective April 12, 2005
12 (D.C. Law 15-335; D.C. Official Code § 2-1515.01
13 et seq.).
36
1 (28) “Employee” means an individual who is
2 employed on a full-time, part-time, temporary, or
3 contractual basis by the DDA, a provider, or the
4 advocate program established by section 107.
5 (29) “Exploitation” has the same meaning as in
6 section 2 of the Adult Protective Services Act of
8 D.C Official Code § 7-1901).
9 (30) “Family” means:
10 (A) A group of individuals that:
11 (1) Is related by blood, marriage,
12 domestic partnership, adoption, or legal custody; or
37
1 (2) Considers themselves a family
2 based upon bonds of affection, which, for the
3 purposes of this act, means enduring ties that do not
4 solely depend upon the existence of an economic
5 relationship; or
6 (B) Any other family unit as the DDS may
7 define in rules.
8 (31) “Family support services” means services,
9 resources, and other forms of assistance that help
10 families to support their members who have
11 developmental disabilities to live in the family home
12 or to maintain family unity.
38
1 (32) “FBI” means the Federal Bureau of
2 Investigation.
3 (33) “Forest Haven” means the institution
4 established by § 44-1401 and designated “Forest
5 Haven” by § 44-1402.
6 (34) “Human Rights Advisory Committee” or
7 “HRAC” means the committee of the DDA which
8 provides guidance and oversight regarding matters
9 pertaining to the human rights of persons receiving
10 supports and services and reviews allegations of
11 human rights violations, or its successor entity.
39
1 (35) “ICD-10-CM” means the most recent
2 version of the International Classification of
3 Diseases Code Manual.
4 (36) “Individual support plan” or “ISP” means a
5 document that identifies and authorizes the supports
6 and services to comprehensively meet the person’s
7 assessed needs in accordance with the person’s
8 expressed preferences, goals, and decisions
9 concerning his or her life in the community.
10 (37) “Intellectual disability” or “persons with
11 intellectual disability” means a substantial limitation
12 in capacity that manifests before 18 years of age and
13 is characterized by significantly subaverage
40
1 intellectual functioning, existing concurrently with 2
2 or more significant limitations in adaptive
3 functioning.
4 (38) “Interagency Coordinating Council” means
5 the council established by section 503 of the Early
6 Intervention Program Establishment Act of 2004,
7 effective April 13, 2005 (D.C. Law 15-353; D.C.
8 Official Code § 7-863.03).
9 (39) “Job applicant” means an individual who
10 has filed a written application for employment with
11 the DDA, a provider, or the advocate program
12 established by section 107.
41
1 (40) “Medical Assistance Program” and
2 “Medicaid Program” mean the program described in
3 the Medicaid State Plan and administered by the
4 Department of Health Care Finance pursuant to § 1-
5 307.02(b), and Title XIX of the Social Security Act,
6 approved July 30, 1965 (79 Stat. 343; 42 U.S.C. §
7 1396 et seq.).
8 (41) “Mental illness” means a diagnosable
9 mental, behavioral, or emotional disorder (including
10 those of biological etiology) which substantially
11 impairs the mental health of the person or is of
12 sufficient duration to meet diagnostic criteria
13 specified within the DSM-IV-TR or its ICD-10-CM
42
1 equivalent (and subsequent revisions) with the
2 exception of DSM-IV-TR “V” codes, substance
3 abuse disorders, developmental disorders, or seizure
4 disorders, unless those exceptions co-occur with
5 another diagnosable mental illness.
6 (42) “Minor” means a person under 18 years of
7 age, but does not include a person who is an
8 emancipated minor or who is married.
9 (43) “Most integrated setting” means a setting
10 that enables persons with disabilities to interact with
11 persons without disabilities to the fullest extent
12 possible.
43
1 (44) “MPD” means the Metropolitan Police
2 Department.
3 (45) “Neglect” has the same meaning as in
4 section 2 of the Adult Protective Services Act of
6 D.C Official Code § 7-1901).
7 (46) “Nurse Aide Abuse Registry” means a
8 record, maintained by the District in accordance with
9 section 4211 of the Omnibus Budget Reconciliation
10 Act of 1987, approved December 22, 1987 (101 Stat.
11 1330-182; 42 U.S.C.S. § 1396r), and 29 DCMR §
12 3250-3254, containing names of individuals who
13 worked as nurse aides and were determined to have
44
1 abused or neglected, or misappropriated the property
2 of, a nursing home resident.
3 (47) “ODR” means the Office of Disability
4 Rights established by the Disability Rights
5 Protection Act of 2006, effective March 8, 2007
6 (D.C. Law 16-239; D.C. Official Code § 2-1431.01
7 et seq.).
8 (48) “Office on Aging” means the Office on
9 Aging established by section 301 of the District of
10 Columbia Act on the Aging, effective October 29,
11 1975 (D.C. Law 1-24; D.C. Official Code § 7-
12 503.01).
45
1 (49) “OHR” means the Office of Human Rights
2 established by the Service Improvement and Fiscal
3 Year 2000 Budget Support Act of 1999, effective
4 October 20, 1999 (D.C. Law 13-38; D.C. Official
5 Code § 2-1411.01).
6 (50) “Parent” means:
7 (A) A person’s natural, adoptive, or foster
8 parent; or
9 (B) With respect to a minor, an individual
10 acting in the place of a natural or adoptive parent
11 (including a grandparent, stepparent, or other
12 relative) with whom the child lives, or an individual
13 who is legally responsible for the child's welfare.
46
1 (51) “Person found incompetent in a criminal
2 case” means a person who:
3 (A) Has at least moderate intellectual
4 disability as defined in the DSM-IV-TR;
5 (B) Is charged with a crime of violence or
6 sex offense;
7 (C) Has been found incompetent to stand
8 trial, or to participate in sentencing or transfer
9 proceedings; and
10 (D) Has been found not likely to gain
11 competence in the foreseeable future.
12 (52) “Physical restraint” means any mechanical
13 device, material, or equipment attached or adjacent
47
1 to a person’s body, or any manual method that the
2 person cannot easily remove and that restricts the
3 person’s freedom of movement or normal access to
4 his or her body.
5 (53) “Prone restraint” means any physical or
6 mechanical restraint that places the person in a face-
7 down position.
8 (54) “Protection and advocacy agency” means
9 the designated state protection and advocacy agency
10 for the District established by the Developmental
11 Disabilities Assistance and Bill of Rights Act of
12 2000, approved October 30, 2000 (114 Stat. 1712;
13 42 U.S.C. § 15041 et seq.).
48
1 (55) “Provider” means an individual or entity
2 that:
3 (A) Is duly licensed or certified to provide
4 supports and services; or
5 (B) Has entered into an agreement with the
6 DDA to provide supports and services.
7 (56) “Psychotropic medication” means a
8 medication prescribed for the treatment of symptoms
9 of mental or emotional disorders or to influence and
10 modify behavior, cognition, or affective state. The
11 term “psychotropic medication” includes the
12 following categories of medications:
13 (A) Antipsychotics or neuroleptics;
49
1 (B) Antidepressants;
2 (C) Agents for control of mania or
3 depression;
4 (D) Antianxiety agents;
5 (E) Sedatives, hypnotics, or other sleep-
6 promoting drugs; and
7 (F) Psychomotor stimulants.
8 (57) “Resident of the District of Columbia”
9 means a person who maintains his or her principal
10 place of abode in the District, including a person
11 who would be a resident of the District of Columbia
12 if the person had not been placed in an out-of-state
13 setting by the District. A person with a
50
1 developmental disability who is under 21 years of
2 age shall be deemed to be a resident of the District
3 of Columbia if the custodial parent of the person is a
4 resident of the District of Columbia.
5 (58) “Respite services” means temporary
6 supports and services provided to a person who has
7 been found eligible for supports and services under
8 this act, upon application of the person, the person’s
9 parent, the person’s guardian, or a family member of
10 the person, for the temporary relief of such parent,
11 guardian, or family member, who normally provides
12 for supports and services for the person or for the
13 temporary relief of the person.
51
1 (59) “Respondent” means the person whose
2 civil commitment or continued civil commitment is
3 being sought in any proceeding under this act.
4 (60) “Restraint” means either a physical
5 restraint or a drug that is being used as a restraint.
6 (61) “Restrictive procedure” means a practice
7 that:
8 (A) Limits a person’s movement or ability
9 to function;
10 (B) Interferes with a person’s ability to
11 acquire a desired outcome, object, or activity;
12 (C) Results in the loss of an outcome,
13 object, or activity that a person values; or
52
1 (D) Requires a person to engage in a
2 behavior that the person would not engage in if
3 given freedom of choice.
4 (62) “Seclusion” means any involuntary
5 confinement of a person alone in a room or an area
6 from which the person is either physically prevented
7 from leaving or from which the person is led to
8 believe he or she cannot leave at will.
9 (63) “Sex offenses” means offenses in Chapter
10 30 of Title 22, but does not include any offense
11 described in § 22-4016(b).
12 (64) “State Advisory Panel on Special
13 Education” means the State Advisory Panel on
53
1 Special Education for the District of Columbia,
2 established by Mayor's Order 2007-246, issued on
3 November 13, 2007 (55 DCR 187).
4 (65) “Substituted judgment” means making a
5 decision that conforms as closely as possible with
6 the expressed wishes of the person or with the
7 decision that the person would have made, based
8 upon knowledge of the beliefs, values, and
9 preferences of the person.
10 (66) “Support coordination” means a set of
11 activities that provides a person, and the person’s
12 family where appropriate, with continuous access to
13 assistance as needed to:
54
1 (A) Plan, obtain, and coordinate supports
2 and services;
3 (B) Review and monitor the delivery of
4 supports and services; and
5 (C) Promptly address issues encountered by
6 the person in community living.
7 (67) “Support coordinator” means an individual
8 designated by the DDA to provide support
9 coordination.
10 (68) “Supports and services” means all supports
11 and services provided, funded, regulated, or
12 coordinated by the DDA for the purpose of meeting
13 the needs of persons with developmental disabilities
55
1 and their families and helping persons with
2 developmental disabilities achieve the most
3 independent, productive, and typical lives possible.
4 (69) “Transfer proceedings” means the
5 proceedings pursuant to § 16-2307 to transfer an
6 individual less than 18 years of age from Family
7 Court to Criminal Court in the Superior Court of the
8 District of Columbia to face adult criminal charges.
9 (70) “University Center for Excellence in
10 Developmental Disabilities” or “UCEDD” means
11 the designated state university center for excellence
12 in developmental disabilities education, research,
13 and service for the District established by the
56
1 Developmental Disabilities Assistance and Bill of
2 Rights Act of 2000, approved October 30, 2000 (114
3 Stat. 1719; 42 U.S.C. § 15061 et seq.).
4 (71) “Unsupervised” means an employee or
5 volunteer who is not under the direct supervision, at
6 all times, of an employee or a volunteer who has
7 received a current, satisfactory criminal background
8 check.
9 (72) “Volunteer” means an individual who
10 works without any monetary or any other financial
11 compensation for the DDA, a provider, or the
12 advocate program established by section 107.
57
1 (73) “Volunteer applicant” means an individual
2 who has made an affirmative effort through a written
3 application or a verbal request to serve in a volunteer
4 position with the DDA, a provider, or the advocate
5 program established by section 107.
6 Sec. 104. Rights.
7 (a) Persons with developmental disabilities shall
8 be presumed to have legal capacity and shall have all
9 the civil and legal rights guaranteed all other persons
10 by the Constitution and laws of the United States
11 and of the District.
58
1 (b) A person who has been found eligible for
2 supports and services under this act shall have rights
3 including the following:
4 (1) A right to receive supports and services
5 in the least restrictive, most inclusive and most
6 integrated setting. Supports and services shall be
7 directed toward the achievement of the most
8 independent, productive, and typical lives possible;
9 (2) A right to personal liberty, dignity,
10 respect, and privacy;
11 (3) A right to be free from abuse, neglect,
12 and exploitation;
59
1 (4) A right to receive supports and services
2 promptly;
3 (5) A right to exercise control and choice
4 over personal living arrangements, relationships with
5 people in the community, education, employment,
6 leisure, recreation, the pursuit of a personal future,
7 the selection of a support coordinator, the selection
8 and implementation of supports and services, and all
9 other aspects of daily life;
10 (6) A right to all information, opportunities,
11 supports, and reasonable accommodations needed to
12 exercise control and to freely make and express
60
1 choices through verbal, nonverbal, and behavioral
2 means;
3 (7) A right to receive information in writing
4 and in any other method or language needed to
5 maximize the person’s understanding and
6 communication;
7 (8) A right to access all information
8 obtained and records prepared by the DDS or a
9 provider that relate to the person, including records
10 prepared in the course of determining eligibility,
11 providing supports and services, conducting quality
12 reviews, and addressing grievances; and
61
1 (9) A right to voice complaints, concerns,
2 and suggestions without interference or fear of
3 reprisal.
4 (c) The right of persons who have been found
5 eligible for supports and services under this act to
6 exercise choice and control in their own lives
7 requires that all public and private agencies
8 receiving District funds for the purpose of serving
9 persons with developmental disabilities shall:
10 (1) Respect the choices made by the person;
11 (2) Afford the person all information,
12 opportunities, supports, and reasonable
13 accommodations needed to freely make and express
62
1 choices and exercise control in all aspect of daily
2 life;
3 (3) Communicate with the person in writing
4 and in any other method or language needed to
5 maximize the person’s understanding and
6 communication;
7 (4) Insure that the person can voice
8 complaints, concerns, and suggestions without
9 interference or fear of reprisal;
10 (5) Seek to resolve complaints and concerns
11 in a timely fashion; and
63
1 (6) Provide and require that all employees
2 complete initial and annual training on the rights of
3 persons with developmental disabilities.
4 (d) All public and private agencies receiving
5 District funds for the purpose of serving persons
6 with developmental disabilities shall provide the
7 person who is receiving supports or services with
8 information regarding:
9 (1) The person’s rights under this act,
10 including grievance rights and contact information
11 for the advocate program established by section 107,
12 the legal services program established by section
13 108, the problem resolution office established by
64
1 section 118, the protection and advocacy agency,
2 any external advocacy agency designated by the
3 DDA, and the abuse and neglect hotline; and
4 (2) Supports and services provided by the
5 DDA.
6 (e) Unless a person consents or unless exigent
7 circumstances exist, the District shall not change the
8 provider, type, frequency, or location of any support
9 or service without providing advance notice and the
10 opportunity to request a fair hearing, file a complaint
11 pursuant to section 118, or request a review of
12 agency action pursuant to section 119. The District
13 must prove by clear and convincing evidence that
65
1 such a change is appropriate and in the best interests
2 of the person.
3 (f) The following procedures are prohibited:
4 (1) Any procedure that is used as a means
5 of coercion, discipline, or retaliation, or that is used
6 solely for the convenience of staff;
7 (2) Any restrictive procedure for managing
8 or changing behavior that is not part of a behavior
9 support plan;
10 (3) Deliberate infliction of pain;
11 (4) Denial of food or liquids that are a part
12 of the person’s nutritionally adequate diet;
66
1 (5) Behavioral treatment strategies that are
2 not supported by empirical evidence or that cause
3 undue pain, trauma, or deprivation of rights;
4 (6) Forced exercise;
5 (7) Noxious, painful, or aversive stimuli
6 used to manage or change behavior;
7 (8) Standing orders and as-needed orders
8 for psychotropic medications;
9 (9) Prone restraint, standing orders for
10 restraint, and physical management strategies not
11 included as part of a District-approved physical
12 management approach; and
13 (10) Seclusion.
67
1 (g) The DDS shall identify and take appropriate
2 enforcement action regarding violations of
3 subsections (c), (d), and (f) of this section.
4 (h) In accordance with the District of Columbia
5 Administrative Procedure Act, approved October 21,
6 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et
7 seq.), the Director of the DDS shall issue regulations
8 to implement this section, which shall include:
9 (1) Definitions, standards, and procedures
10 to implement subsections (e) and (f) of this section;
11 and
68
1 (2) Standards for restrictive procedures, in
2 accordance with best practices and recommendations
3 by the Council on Quality Leadership.
4 Sec. 105. Rights of persons formerly committed
5 and former Forest Haven residents.
6 (a) No person who prior to the effective date of
7 this act was committed to a facility pursuant to the
8 Mentally Retarded Citizens Constitutional Rights
9 and Dignity Act of 1978, effective March 3, 1979
10 (D.C. Law 2-137; D.C. Official Code § 7-1301.01 et
11 seq.) shall be denied supports and services suited to
12 the person’s needs, regardless of the person’s age or
13 the degree or type of the person’s disability. The
69
1 DDA shall provide such a person with supports and
2 services that will maximize the person’s human
3 abilities, enhance the person’s ability to cope with
4 the person’s environment, and create a reasonable
5 opportunity for progress toward the goal of
6 independent living.
7 (b) No person who is a former resident of Forest
8 Haven shall be denied supports and services suited
9 to the person’s needs, regardless of the person’s age
10 or the degree or type of the person’s disability. The
11 DDA shall provide such a person with supports and
12 services that will maximize the person’s human
13 abilities, enhance the person’s ability to cope with
70
1 the person’s environment, and create a reasonable
2 opportunity for progress toward the goal of
3 independent living.
4 Sec. 106. Eligibility.
5 (a) A request for the DDA to determine
6 eligibility for supports and services shall be made by
7 the person, who may be accompanied and supported
8 in making the request by any individual that the
9 person chooses. For a minor, the request for
10 eligibility determination may be initiated by a parent
11 or guardian. A request for eligibility determination is
12 not:
71
1 (1) A health-care decision subject to
2 Chapter 22 of Title 21; or
3 (2) A decision that requires an adult person
4 to be represented by a guardian, advocate, family
5 member, counsel, or other representative.
6 (b) For a period of 12 months after the effective
7 date of this act, a person shall be eligible for
8 supports and services under this act if the person:
9 (1) Is a resident of the District of Columbia;
10 and
11 (2) Has a comprehensive screening that
12 finds that an intellectual disability that also meets the
13 definition of a developmental disability is present.
72
1 (c) For a period of between 12 months and 24
2 months after the effective date of this act, a person
3 shall be eligible for supports and services under this
4 act if the person:
6 and
8 finds that:
9 (A) An intellectual disability that also
10 meets the definition of a developmental disability is
11 present; or
73
1 (B) The person meets other eligibility
2 criteria that have been established through
3 rulemaking by the Director of the DDS.
4 (d) Beginning 24 months after the effective date
5 of this act, a person shall be eligible for supports and
6 services under this act if the person:
8 and
10 finds that a developmental disability is present or, if
11 the person is under the age of 22, has a
12 comprehensive screening that finds that:
74
1 (A) A developmental disability is
2 present; or
3 (B) A disability is present that is
4 attributable to a physical or mental impairment,
5 other than the sole diagnosis of mental illness, or to
6 a combination of mental and physical impairments,
7 but the scope of functional limitations is
8 inconclusive or it cannot be determined whether the
9 disability will continue indefinitely.
10 (e) Within 30 calendar days of receiving a
11 request for eligibility determination, the DDA shall
12 complete a comprehensive screening of the person.
13 A professional experienced in assessing
75
1 developmental disabilities shall conduct the
2 comprehensive screening process. The
3 comprehensive screening process shall elicit
4 information directly from the person and, with the
5 person’s consent, individuals who know the person
6 well, and shall include the use of standardized
7 assessment tools. The comprehensive screening
8 process shall:
9 (1) Determine the nature, scope, and
10 expected duration of the person’s disability;
11 (2) Identify the type and intensity of support
12 needs in functional life areas;
76
1 (3) Identify the potential need for assistive
2 technology; and
3 (4) Identify whether the person:
4 (A) Has executed or could execute a
5 durable power of attorney in accordance with D.C.
6 Official Code § 21-2205; or
7 (B) Has an individual reasonably
8 available, mentally capable, and willing to provide
9 substituted consent pursuant to D.C. Official Code §
10 21-2210.
11 (f) For the purpose of eligibility determination,
12 the DDA shall accept information from sources
13 outside the DDA that establishes residency or helps
77
1 complete any part of the comprehensive screening
2 process required under paragraphs (1) through (4) of
3 subsection (d) of this section. Upon authorization by
4 the person, the DDA shall gather such information
5 on behalf of the person.
6 (g) Within 10 business days of receiving
7 documentation of residency and completing the
8 comprehensive screening, the DDA shall make an
9 eligibility determination and shall provide the person
10 and any individual identified by the person with a
11 letter stating the determination of eligibility, the
12 legal and factual basis for the determination
13 including citation of the applicable law or policy,
78
1 and a contact person at the DDA. The letter shall be
2 accompanied by:
3 (1) A description of the person’s rights
4 under this act;
5 (2) Telephone numbers for the protection
6 and advocacy agency, any external advocacy agency
7 designated by the DDA, and any sources for
8 obtaining counsel and advocates;
9 (3) If the DDA has found the person to be
10 eligible:
11 (A) Information on the supports and
12 services provided by the DDA;
79
1 (B) Information on the person’s right to
2 file a complaint or request a hearing under this act
3 and how to file a complaint or request a hearing;
4 (C) Dates, times, and locations of
5 upcoming orientation sessions and trainings on
6 rights, supports and services, and grievances under
7 this act;
8 (D) A description of the ISP process
9 and how to select or change a support coordinator;
10 and
11 (E) Telephone numbers for the
12 advocate program established by section 107, the
13 legal services program established by section 108,
80
1 the problem resolution office established by section
2 118, and the abuse and neglect hotline; and
3 (4) If the DDA has found the person to be
4 ineligible, information on the person’s right to
5 appeal a denial of eligibility and how to file an
6 appeal.
7 (h) If the DDA finds the person is not eligible,
8 the DDA shall use the information gathered during
9 the comprehensive screening process to refer and
10 connect the person to other agencies.
11 (i) If the DDA finds the person is not eligible,
12 the person or any individual chosen by the person
13 may:
81
1 (1) Appeal a denial of eligibility in
2 accordance with the procedures established by
3 section 118. An appeal may include a request for a
4 new comprehensive screening conducted by a
5 professional who is different from the professional
6 who conducted the original comprehensive
7 screening process; and
8 (2) Request a new eligibility determination
9 if new information becomes available regarding the
10 person’s diagnosis, age of onset of the disability,
11 severity of the disability, or residency. A denial of
12 a request for a new eligibility determination may be
82
1 appealed using the same procedures for appealing a
2 denial of eligibility established by section 118.
3 (j) An assessment required for a comprehensive
4 screening under this section shall be at the District’s
5 expense if the cost of the assessment cannot
6 otherwise be paid by a federal, local, or private
7 insurance program. Seeking third-party payment for
8 an assessment shall not delay the completion of the
9 screening or eligibility determination.
10 (k) The DDA may provide supports and
11 services prior to the completion of the
12 comprehensive screening and eligibility
13 determination:
83
1 (A) If the person is homeless or at imminent
2 risk of becoming homeless as these terms are
3 defined in section 2 (18) and (23) of the Homeless
4 Services Reform Act of 2005, effective October 22,
6 752.01(18) and (23));
7 (B) If there is an expectation that the person
8 is in imminent danger or will be subject to abuse or
9 neglect if the person does not receive supports or
10 services; or
11 (C) Pursuant to court order, if the person
12 has been found incompetent in a criminal case.
84
1 (l) In accordance with the District of Columbia
5 to implement this section which shall include
6 guidance on information which the DDA will accept
7 for the purposes of eligibility determination if
8 written documentation of the age of onset of a
9 person’s disability is not available.
10 Sec. 107. Advocate program.
11 (a) There is established an advocate program
12 within the District to provide trained advocates to
13 assist persons age 18 or older who have been found
85
2 navigate the DDA service system and to lead
3 meaningful, fully integrated lives in the community.
4 (b) The District shall operate the advocate
5 program through a grant or contract with one or
6 more qualified private, community-based, nonprofit
7 corporations, organizations, or consortia of
8 organizations, with offices located in the District.
9 Each grantee, contractor, and advocate under the
10 program shall be independent of any public or
11 private agency that provides supports and services
12 pursuant to section 111 or section 112. The process
13 for awarding a grant or contract for the advocate
86
1 program shall include participation by 2 or more
2 persons with developmental disabilities, family
3 members of persons with developmental disabilities,
4 or representatives of community-based organizations
5 that work with District residents with developmental
6 disabilities.
7 (c) The advocate program shall:
8 (1) Provide paid or volunteer advocates to
9 persons with developmental disabilities age 18 or
10 older who have been found eligible for supports and
11 services under this act;
87
1 (2) Ensure that all advocates complete a
2 pre-employment screening, a criminal background
3 check, and a training course; and
4 (3) Engage in outreach and education to
5 inform persons with developmental disabilities age
6 18 or older who have been found eligible for
7 supports and services under this act about the
8 opportunity to have an advocate.
9 (d) Within 5 business days after the DDA has
10 found a person who is age 18 or older eligible for
11 supports and services pursuant to section 106, the
12 DDA shall notify the advocate program and shall
88
1 provide the advocate program with information on
2 how to contact the person.
3 (e) Upon notification by the DDA that the DDA
4 has found a person eligible for supports and services
5 pursuant to section 106 or upon receiving a request
6 for an advocate, the advocate program shall:
7 (1) Within 10 business days, meet with the
8 person and determine if the person desires the
9 services of an advocate; and
10 (2) Within 20 business days, determine if
11 the person meets the selection criteria established by
12 the Annual Statement of Objectives and Priorities
13 pursuant to subsection (n) of this section.
89
1 (f) Upon determination that a person desires the
2 services of an advocate and meets the selection
3 criteria established by the Annual Statement of
4 Objectives and Priorities pursuant to subsection (n)
5 of this section, the advocate program shall assign an
6 advocate to the person. The advocate program may
7 assign an advocate for an indefinite period or on a
8 basis limited by duration, scope, or both.
9 (g) Upon determination that a person does not
10 desire the services of an advocate or does not meet
11 the selection criteria established by the Annual
12 Statement of Objectives and priorities pursuant to
13 subsection (n) of this section, the advocate program
90
1 may refer the person to the legal services program
2 established by section 108, to another source of
3 advocates, or to any organization which the advocate
4 program believes may help the person meet his or
5 her needs, preferences, and goals.
6 (h) A person may reject the services of an
7 advocate and shall be so advised by the advocate
8 program. If a person who has rejected the services of
9 an advocate at any time withdraws the rejection, the
10 advocate program shall meet with the person
11 pursuant to subsection (e) of this section.
12 (i) A person may at any time request and
13 receive a change in the person’s assigned advocate
91
1 within 21 calendar days after the person makes the
2 request, unless the advocate program shows that the
3 requested change would cause significant difficulty
4 or expense.
5 (j) An advocate shall have the following powers
6 and duties with respect to the person to whom the
7 advocate has been assigned, except as the advocate
8 program may limit the advocate’s powers and duties
9 by duration, scope, or both:
10 (1) To inform the person of the his or her
11 rights under this act and to support the person to
12 exercise his or her rights, including through referral
13 to legal services;
92
1 (2) To become and remain personally
2 acquainted with the person and to maintain sufficient
3 contact with the person to know of the person’s
4 needs, preferences, goals, and communication
5 methods;
6 (3) To advocate on the basis of the
7 expressed preferences of the person or, if the
8 person’s preferences cannot be determined, to
9 advocate on the basis of the person’s best interests;
10 (4) To support the person in such a manner
11 as to encourage self-reliance and to enable the
12 person to exercise rights, to communicate needs,
13 preferences, and goals, and to participate to the
93
1 greatest extent possible in the planning and delivery
2 of supports and services, including supporting the
3 person in filing complaints and requesting legal
4 representation; and
5 (5) If the person has been certified as
6 incapacitated to make a health-care decision
7 pursuant to § 21-2204 and no other no individual in
8 a prior class is reasonably available, mentally
9 capable, and willing to act pursuant to §21-2210, to
10 grant, refuse, or withdraw consent on behalf of the
11 person with respect to the provision of any health-
12 care service, treatment, or procedure consistent with
94
1 the provisions of Chapter 22 of Title 21 of the
2 District of Columbia Official Code.
3 (k) Unless a person objects, an advocate shall:
4 (1) Receive notice and have the right to
5 participate in all meetings, conferences, or other
6 proceedings relating to any matter affecting
7 provision of supports and services to the person to
8 whom the advocate has been assigned, including the
9 ISP, any complaints and complaint resolution
10 processes under this act, and any petitions and
11 hearings before the Court related to the person’s
12 rights, supports, and services;
95
1 (2) Have access to all records, reports, and
2 documents relating to the person to whom the
3 advocate has been assigned which are maintained by
4 a provider, the District, or the Court;
5 (3) Have access to all personnel and
6 providers responsible for providing supports and
7 services to the person to whom the advocate has
8 been assigned; and
9 (4) Consult with the person’s family,
10 providers, and others concerned with the person’s
11 supports and services.
12 (l) The advocate to whom information about a
13 person has been released under subsection (k) of this
96
1 section shall be prohibited from using or releasing
2 the information except in the proper performance of
3 his or her duties.
4 (m) All communication between an advocate
5 and the person to whom the advocate has been
6 assigned shall remain confidential and privileged as
7 if between counsel and client.
8 (n) By September 30 of each year the advocate
9 program shall publish an Annual Statement of
10 Objectives and Priorities (“Annual Statement”) for
11 the coming fiscal year. The Annual Statement shall
12 describe and explain the priorities and selection
13 criteria for the advocate program’s individual
97
1 advocacy caseload and the outcomes which the
2 program will seek to accomplish. Priorities
3 established by the Annual Statement shall serve as
4 the basis for the advocate program to determine
5 which cases are selected in a given fiscal year. The
6 advocate program shall have the authority to turn
7 down a request for an advocate when the request is
8 outside the scope of the Annual Statement, but shall
9 inform a person that this is the basis for turning the
10 person down.
11 (o) By August 15 of each year the advocate
12 program shall transmit a draft Annual Statement for
13 the coming fiscal year to the Mayor and Council,
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1 shall post the draft Annual Statement on the
2 advocate program’s web site, and shall work in
3 collaboration with the DDA to disseminate notice of
4 the draft Annual Statement to persons age 18 and
6 services under this act. The advocate program shall
7 obtain comment on the draft Annual Statement from
8 the public, the Family Support Council established
9 by section 113, the Developmental Disabilities State
10 Planning Council, the protection and advocacy
11 agency, and the UCEDD.
12 (p) The District shall fund the advocate program
13 at $500,000 for the first fiscal year after the effective
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1 date of this act, and thereafter shall increase funding
2 above $500,000 per fiscal year to levels that permit
3 the advocate program to achieve the objectives
4 established by this section.
5 Sec. 108. Legal services program.
6 (a) There is established a legal services program
7 within the District to provide legal representation to
8 persons age 18 or older who have been found
10 help such persons to obtain quality supports and
11 services and to exercise their rights under this act.
12 (b) The District shall operate the legal services
13 program through a grant or contract with one or
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1 more qualified private, community-based, nonprofit
2 corporations, organizations, or consortia of
3 organizations, with offices located in the District.
4 Each grantee, contractor, and counsel shall be
5 independent of any public or private agency that
6 provides supports and services pursuant to section
7 111 or section 112. The process for awarding a grant
8 or contract for the legal services program shall
9 include participation by 2 or more persons with
10 developmental disabilities, family members of
11 persons with developmental disabilities, or
12 representatives of community-based organizations
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1 that work with District residents with developmental
2 disabilities.
3 (c) Upon receiving a request for legal services,
4 the legal services program shall:
5 (1) Within 10 business days, meet with the
6 person and determine if the person desires legal
7 representation; and
8 (2) Within 20 business days, determine if
9 the person meets the selection criteria established by
10 the Annual Statement of Objectives and Priorities
11 pursuant to subsection (i) of this section.
12 (d) Upon determination that a person desires
13 legal representation and meets the selection criteria
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1 established by the Annual Statement of Objectives
2 and Priorities pursuant to subsection (i) of this
3 section, the legal services program shall assign
4 counsel to represent the person.
5 (e) Upon determination that a person does not
6 desire legal representation or does not meet the
7 selection criteria established by the Annual
8 Statement of Objectives and priorities pursuant to
9 subsection (i) of this section, the legal services
10 program may refer the person to the advocate
11 program established by section 107, to another
12 source of legal services, or to any organization
13 which the legal services program believes may help
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1 the person meet his or her needs, preferences, and
2 goals.
3 (f) Counsel appointed to represent a person
4 under this section shall not be precluded from
5 representing the person in any proceeding under this
6 act including any proceeding before the Office of
7 Administrative Hearings, the District of Columbia
8 Courts, and the federal courts. However, counsel
9 appointed to represent a person under this section
10 shall not be used in lieu of counsel appointed under
11 the Criminal Justice Act (§ 11-2601 et seq.).
12 (g) Unless a person objects, a person’s counsel
13 shall:
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5 whom counsel has been assigned, including the ISP,
6 any complaints and complaint resolution processes
7 under this act, and any petitions and hearings before
8 the Court related to the person’s rights, supports, and
9 services;
11 documents relating to the person to whom counsel
12 has been assigned which are maintained by a
13 provider, the District, or the Court; and
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3 services to the person to whom counsel has been
4 assigned.
5 (h) The legal services program may employ
6 counsel on a full-time, part-time, temporary, or
7 contractual basis. Counsel shall be awarded hourly
8 compensation for services by the legal services
9 program at rates established by the legal services
10 program; however, in no event shall the hourly rate
11 exceed the rate set forth in the Criminal Justice Act
12 (§ 11-2601 et seq.).
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1 (i) By September 30 of each year the legal
2 services program shall publish an Annual Statement
3 of Objectives and Priorities (“Annual Statement”)
4 for the coming fiscal year. The Annual Statement
5 shall describe and explain the priorities and selection
6 criteria for the legal services program’s individual
7 caseload and the outcomes which the program will
8 seek to accomplish. Priorities established by the
9 Annual Statement shall serve as the basis for the
10 legal services program to determine which cases are
11 selected in a given fiscal year. The legal services
12 program shall have the authority to turn down a
13 request for legal representation when the request is
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1 outside the scope of the Annual Statement, but shall
2 inform a person that this is the basis for turning the
3 person down.
4 (j) By August 15 of each year the legal services
5 program shall transmit a draft Annual Statement for
6 the coming fiscal year to the Mayor and Council,
7 shall post the draft Annual Statement on the legal
8 services program’s web site, and shall work in
9 collaboration with the DDA to disseminate notice of
10 the draft Annual Statement to persons age 18 and
12 services under this act. The legal services program
13 shall obtain comment on the draft Annual Statement
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1 from the public, the Family Support Council
2 established by section 113, the Developmental
3 Disabilities State Planning Council, the protection
4 and advocacy agency, and the UCEDD.
5 (k) The District shall fund the legal services
6 program at $500,000 for the first fiscal year after the
7 effective date of this act, and thereafter shall
8 increase funding above $500,000 per fiscal year to
9 levels that permit the legal services program to
10 achieve the objectives established by this section.
11 Sec. 109. Support and service planning.
12 (a) All supports and services shall be voluntary.
13 A person who has been found eligible for supports
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1 and services under this act shall be afforded all
2 information, opportunities, supports, and reasonable
3 accommodations needed to exercise control and to
4 freely make and express choices through verbal,
5 nonverbal, and behavioral means. A person’s way of
6 communicating with others is not grounds for
7 deciding that he or she is incapable of making
8 choices about his or her supports and services. A
9 request to receive a support or service is not:
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4 (b) Each person who has been found eligible for
5 supports and services under this act pursuant to
6 section 106 shall have an ISP.
7 (c) The initial ISP shall be based on the
8 comprehensive screening process completed for
9 eligibility determination as set forth in section 106.
10 (d) The ISP shall include:
11 (1) A description of the person’s strengths,
12 needs, interests, preferences, communication
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1 methods, capacities, disabilities, relationships, and
2 natural supports;
3 (2) A description of opportunities for the
4 person to learn of and exercise his or her rights;
5 (3) A description of the person’s resources
6 including income, assets, insurance, and any other
7 benefits, supports, and services from public or
8 private sources;
9 (4) Information on whether the person has
10 an advocate;
11 (5) Information on whether the person:
12 (A) Has executed or could execute a
13 durable power of attorney in accordance with D.C.
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1 Official Code § 21-2205. A current durable power of
2 attorney shall be included in the ISP. In the absence
3 of a durable power of attorney, the ISP shall include
4 documentation that the person has been offered an
5 opportunity to execute a durable power of attorney
6 pursuant to D.C. Official Code § 21-2205 and has
7 declined; or
8 (B) Has an individual reasonably
9 available, mentally capable, and willing to provide
10 substituted consent pursuant to D.C. Official Code §
11 21-2210;
12 (6) A description of short-range,
13 intermediate-range, and long-range service and
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1 support outcomes chosen by the person, a projected
2 timetable for outcome attainment, and measurable
3 objectives that constitute progress toward the
4 identified outcomes;
5 (7) A detailed list of supports and services
6 to be provided and the amount, frequency, and
7 duration of each support and service necessary to
8 address the person’s needs, preferences, and
9 outcomes. The list of supports and services shall
10 include identification and justification of all mental
11 health services, including psychotropic medications,
12 behavior support plans, and any other psychiatric
13 treatments;
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1 (8) A list of the providers that will furnish
2 each support and service;
3 (9) An explanation of monitoring
4 procedures, including timelines and designation of
5 persons or agencies responsible for regular
6 monitoring of the ISP; and
7 (10) If appropriate, recommendations for
8 supports and services that the person wishes to
9 explore in the future.
10 (e) The DDA and any agencies listed in the ISP
11 shall be responsible for ensuring that a person’s ISP
12 is implemented.
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1 (f) In accordance with the District of Columbia
4 seq.), the Director of the DDS shall issue rules for
5 developing and implementing ISPs in accordance
6 with this section. Rulemaking shall be informed by
7 best and emerging practices or the standards for
8 practice established by The Council on Quality and
9 Leadership.
10 (g) Nothing in this section shall be construed as
11 requiring any adult person to execute a durable
12 power of attorney for health care or to have a
13 guardian.
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1 Sec. 110. Support coordination.
2 (a) A person who has been found eligible for
3 supports and services under this act shall choose a
4 support coordinator to help design the person’s ISP,
5 with the participation of any individual the person
6 chooses.
7 (b) A person may request a new support
8 coordinator at any time. By no later than 21 calendar
9 days after the person makes the request, the DDA
10 shall provide the person with a new support
11 coordinator, unless the DDA provides clear and
12 convincing evidence that the requested change
13 would cause significant difficulty or expense. Before
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1 providing the person with a new support coordinator
2 the DDA may first attempt to informally resolve the
3 person’s dissatisfaction with his or her support
4 coordinator.
5 (c) The DDA shall notify the person within one
6 business day if the person’s support coordinator
7 becomes temporarily or permanently unavailable to
8 work with the person.
9 (d) The support coordinator shall help the
10 person to:
11 (1) Understand the person’s rights under
12 this act;
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1 (2) Identify and communicate the person’s
2 needs, preferences, and outcomes;
3 (3) Select supports and services to meet the
4 person’s needs, preferences, and outcomes and
5 maximize the person’s ability to exercise the
6 person’s rights;
7 (4) Visit, evaluate, and choose among
8 potential providers;
9 (5) Develop and design the ISP;
10 (6) Review and monitor the delivery of
11 supports and services; and
12 (7) Promptly address issues encountered by
13 the person in community living.
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1 (e) The support coordinator shall notify the
2 Office of the Attorney General if he or she believes
3 that:
4 (1) A guardian of an adult person is failing
5 to conform as closely as possible to a standard of
6 substituted judgment or to include the person in the
7 decision-making process to the maximum extent of
8 the person’s ability, pursuant to section 21-
9 2047(a)(6) or 21-2047b(b)(2); or
10 (2) An advocate appointed by the Court is
11 failing to perform the duties of an advocate required
12 under this act.
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1 (f) The support coordinator shall develop and
2 implement the ISP within 60 calendar days after the
3 initial eligibility determination.
4 (g) The support coordinator shall with the
5 person and any individual the person chooses:
6 (1) Comprehensively review and update the
7 ISP at least annually;
8 (2) Review the ISP at least quarterly and
9 make changes if appropriate;
10 (3) Review and update the ISP whenever
11 the person’s needs, preferences, outcomes, or any
12 other element of the ISP changes; and
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1 (4) If the person consents, review the ISP
2 after receiving a request for a review and make
3 changes if appropriate. A review may be requested
4 by the person, the parent of a minor, the person’s
5 guardian, the person’s advocate, the person’s
6 counsel, any individual chosen by the person to
7 participate in the ISP, any provider listed in the ISP,
8 or the DDA.
9 (h) Within 3 business days of developing the
10 initial ISP or making changes to the ISP, the support
11 coordinator shall provide copies of the ISP to the
12 person, the parent of a minor, the person’s guardian,
13 the person’s advocate, the person’s counsel, any
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1 individual the person chooses, and any provider
2 listed in the ISP. Along with a copy of the ISP, the
3 support coordinator shall provide:
4 (1) A description of the person’s rights
5 under this act;
6 (2) Information on the person’s right to file
7 a complaint or request a hearing if the person is
8 unsatisfied with any part of the ISP and how to file a
9 complaint or request a hearing;
10 (3) Telephone numbers for the advocate
11 program established by section 107, the legal
12 services program established by section 108, the
13 problem resolution office established by section 118,
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1 the protection and advocacy agency, any external
2 advocacy agency designated by the DDA, and the
3 abuse and neglect hotline;
4 (4) Dates, times, and locations of upcoming
5 trainings on rights, supports and services, and
6 grievance procedures under this act; and
7 (5) A description of the ISP process and
8 how to select or change a support coordinator.
9 (i) Nothing in this section shall be construed as
12 guardian.
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1 (j) In accordance with the District of Columbia
4 seq.), the Director of the DDS shall issue rules for
5 this section which shall include:
6 (1) Timeframes for activities required for
7 the support coordinator to develop and implement an
8 ISP; and
9 (2) Standards to prevent, reduce, and
10 remedy conflicts of interest for support coordinators.
11 Sec. 111. Supports and services.
12 (a) The DDA shall develop, administer,
13 coordinate, monitor, and evaluate a comprehensive,
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1 coordinated system of supports and services for
2 persons who have been found eligible for supports
3 and services under this act. The comprehensive,
4 coordinated system of supports and services shall
5 make maximum use of all available federal funds
6 consistent with federal law.
7 (b) The comprehensive, coordinated system of
8 supports and services shall include:
9 (1) Support coordination;
10 (2) Information and referral services to help
11 persons connect with services and resources at other
12 District agencies, federal agencies, and in the
13 community;
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1 (3) Transition planning to facilitate
2 successful transitions from one agency service
3 system to another across the lifespan of the person;
4 (4) Supports and services delivered in the
5 community to help persons live as independently as
6 possible in the least restrictive and most integrated
7 setting;
8 (5) Supports and services to assist persons
9 to obtain and maintain employment in work settings
10 available to the general work force that maximize
11 community and social integration and provide job
12 opportunities that meet the person’s career potential
13 and interest;
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1 (6) Supports and services to facilitate access
2 to recreation and social opportunities in the
3 community;
4 (7) Professional services including medical,
5 psychological, vocational, social, educational, and
6 rehabilitative supports and services;
7 (8) Temporary supports and services
8 provided for up to 90 days to an adult in need of
9 protective services who is eligible for supports and
10 services under this act to remedy or substantially
11 reduce the likelihood of abuse, neglect, exploitation,
12 or self-neglect;
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1 (9) Informational, educational, and
2 community outreach services to promote awareness
3 and knowledge of developmental disabilities and the
4 supports and services offered by the DDA among
5 persons with developmental disabilities and their
6 families, the general public, and lay and professional
7 groups; and
8 (10) Any other assistance that the DDA
9 considers necessary to provide a comprehensive,
10 coordinated continuum of supports and services for
11 persons with developmental disabilities across the
12 lifespan.
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1 (c) The DDA shall provide regular orientation
2 sessions and trainings for persons who have been
3 found eligible for supports and services under this
4 act on supports and services, support and service
5 planning, rights, and problem resolution procedures
6 with the goal of increasing the ability of persons to
7 access supports and services, actively participate in
8 the development, implementation and monitoring of
9 their ISP, exercise their rights, and file complaints,
10 request hearings, and pursue appeals.
11 (d) Subject to the availability of an
12 appropriation for these purposes, the DDA shall
13 develop and administer, either directly or in
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1 collaboration with other District agencies, federal
2 agencies, or the private sector, pilot programs to
3 develop, replicate or expand on best practices in
5 (e) Supports and services under this section
6 shall not replace or reduce other public benefits to
8 families, or be considered as resources or income in
9 any eligibility determination or sliding fee scale.
10 Sec. 112. Family support services.
11 (a) The DDA shall develop, administer,
12 coordinate, monitor, and evaluate a comprehensive,
13 coordinated system of family support services for
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1 families of persons who have been found eligible for
2 supports and services under this act. The
3 comprehensive, coordinated system of family
4 support services shall make maximum use of all
5 available federal funds consistent with federal law.
6 (b) The comprehensive, coordinated system of
7 family support services shall include:
8 (1) Support coordination and
9 (2) Information and referral services to help
10 families connect with services and resources at other
11 District agencies, federal agencies, and in the
12 community;
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1 (3) Transition planning to facilitate
2 successful transitions from one agency service
3 system to another across the lifespan of the person;
4 (4) Family support services, including:
5 (A) Respite services;
6 (B) Family training and counseling;
7 (C) Temporary supports and services;
8 (D) One-time cash assistance;
9 (E) Home modifications; and
10 (F) Funding of items or equipment.
11 (5) In-home supports to help persons live
12 independently in the family home and participate
13 fully in the community; and
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1 (6) Any other assistance that the DDA
2 considers necessary to provide a comprehensive,
3 coordinated continuum of family support services
4 across the lifespan of the person.
5 (c) The DDA shall provide regular orientation
6 sessions and trainings for families on supports and
7 services, service planning, rights, and problem
8 resolution procedures with the goal of promoting the
9 ability of families to support persons with
10 developmental disabilities to access supports and
11 services, actively participate in the development,
12 implementation and monitoring of their ISP,
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1 exercise their rights, file complaints, request
2 hearings, and pursue appeals.
3 (d) Family support services under this section
4 shall not replace or reduce other public benefits to
6 families, or be considered as resources or income in
7 any eligibility determination or sliding fee scale.
8 Sec. 113. Family Support Council.
9 (a) There is established a Family Support
10 Council to assist the DDA and other agencies that
11 administer or fund family support services to act in
12 concert and, within available appropriations, to:
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1 (1) Establish a comprehensive, coordinated
2 system of family support services that is responsive
3 to the needs, hopes, and preferences of families of
4 persons with the full range of developmental
5 disabilities;
6 (2) Use existing local and other resources
7 efficiently and effectively as appropriate for such
8 supports and services, and
9 (3) Identify and address supports and
10 services that are needed for families of children,
11 youth, and adults with developmental disabilities.
12 (b) The Family Support Council shall be
13 composed of 15 parents, siblings, and other family
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1 members of persons with developmental disabilities,
2 and persons with developmental disabilities. The
3 majority of members shall be family members. If
4 possible, the membership shall include
5 representatives of the Developmental Disabilities
6 State Planning Council, the Interagency
7 Coordinating Council, and the State Advisory Panel
8 on Special Education.
9 (c) The Deputy Director of the DDA shall
10 appoint the Family Support Council members.
11 Members shall serve 3-year staggered terms. A
12 vacancy on the Family Support Council shall be
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1 filled in the same manner as the original
2 appointment.
3 (d) The Family Support Council shall be
4 chaired by a family member of a person with a
5 developmental disability. The chair shall be selected
6 by the Family Support Council members.
7 (e) The DDA shall provide staff assistance and
8 support to the Family Support Council.
9 (f) The Family Support Council shall take steps
10 to obtain widespread public input which may include
11 sponsoring public forums, conducting focus groups,
12 and creating committees.
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1 (g) The Family Support Council shall meet at
2 least quarterly. Meetings shall be open to the public
3 and shall be widely publicized. The Family Support
4 Council may invite representatives of District
5 agencies and community groups to participate in
6 meetings of the Family Support Council and of
7 committees.
8 (h) The Family Support Council shall enact
9 rules of procedure or bylaws to guide its operation,
10 which shall include quorum requirements. All rules,
11 bylaws, agendas, minutes, meeting transcripts, and
12 reports shall be made readily available to the public.
13 (i) The Family Support Council shall:
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1 (1) Gather input and develop a vision and
2 guidelines for family support services;
3 (2) Review existing program policies,
4 procedures, and funding mechanisms for conformity
5 to the guidelines and make appropriate
6 recommendations;
7 (3) Monitor the implementation of the
8 guidelines and recommendations;
9 (4) Report to the Mayor and Council on an
10 annual basis regarding the status of family support
11 services, including the implementation of the
12 guidelines and recommendations;
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1 (5) Advocate for family support services in
2 accordance with the guidelines;
3 (6) Compile and distribute information on
4 family support services to public agencies, private
5 agencies, and the general public; and
6 (7) Perform other duties as are related to the
7 advancement of family-centered supports, policies
8 and services.
9 (j) The DDA shall consider recommendations
10 from the Family Support Council in developing and
11 implementing family support services, including the
12 development of administrative rules and policies.
13 The DDA shall regularly report to the Family
141
1 Support Council on the status of each program and
2 any actions planned or taken by the DDA related to
3 each program.
4 Sec. 114. Waiting lists.
5 (a) If the DDA is unable to provide supports
6 and services to persons found eligible under this act
7 immediately upon request, the DDS shall establish
8 one or more waiting lists for supports and services
9 provided by the DDA under this act. The DDS shall
10 ensure that:
11 (1) Persons on waiting lists begin to receive
12 supports and services at a reasonable pace that is
13 based on a fair, equitable, and consistent method of
142
1 adjusting support and service levels based on the
2 intensity and immediacy of the needs of the person,
3 the person’s family, and other relevant
4 circumstances affecting the support of the person;
5 (2) Persons on waiting lists receive supports
6 and services as resources become available; and
7 (3) Persons on waiting lists are kept up to
8 date on when they can expect to begin to receive
10 (b) In establishing a waiting list for supports
11 and services provided by the DDA under this act, the
12 DDS shall:
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1 (1) Provide the justification for the waiting
2 list and identify the supports and services for which
3 the waiting list is established;
4 (2) Identify the minimum supports and
5 services, including information and referral services,
6 available to all eligible persons and their families;
7 (3) Identify how a person is placed on the
8 waiting list;
9 (4) Identify the criteria that determine
10 placement and rank on the waiting list;
11 (5) Provide a process for a person on the
12 waiting list to notify the DDA if the criteria that
144
1 determined the person’s placement or rank on the
2 waiting list change;
3 (6) Define exigent circumstances in which
4 the DDA shall provide a person with temporary
5 supports and service or provide a person with
6 emergency access to waiting list services. In
7 defining exigent circumstances, the DDA shall at a
8 minimum address circumstances in which:
9 (A) The person is homeless or at
10 imminent risk of becoming homeless as these terms
11 are defined in section 2 (18) and (23) of the
12 Homeless Services Reform Act of 2005, effective
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1 October 22, 2005 (D.C. Law 16-35; D.C. Official
2 Code § 4-752.01(18) and (23)); and
3 (B) There is an expectation that the
4 person will be in danger or will be subject to abuse
5 or neglect if the person does not receive supports or
6 services;
7 (7) Provide a process for identification of
8 exigent circumstances and application by the person
9 for emergency access to waiting list services;
10 (8) Provide for appeals of waiting list
11 placement and rank to the Office of Administrative
12 Hearings; and
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1 (9) Assure that the DDA will notify the
2 person in writing of placement and rank on the
3 waiting list, appeal rights, and projected wait time
4 for supports and services pursuant to subsection (d)
5 and subsection (e) of this section.
6 (c) The DDS shall only place a person on a
7 waiting list when the DDA is unable to provide
8 supports and services immediately. The DDS shall
9 provide a person who has been placed on a waiting
10 list with information and referral services to connect
11 the person with services and resources at other
12 District agencies, at federal agencies, and in the
13 community. A person may appeal placement and
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1 rank on a waiting list to the Office of Administrative
2 Hearings, and shall be informed of this right in
3 writing by the DDS.
4 (d) By 5 business days after placing a person on
5 a waiting list the DDS shall provide the person with
6 a letter stating the person’s placement and rank on
7 waiting list, the legal and factual basis for the
8 placement and rank including citation of the
9 applicable law or policy, and a contact person at the
10 DDS. The letter shall be accompanied by:
11 (1) A description of the criteria that
12 determine rank on the waiting list;
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1 (2) A projection of how long the person can
2 expect to wait before receiving supports and
3 services;
4 (3) A statement of the person’s right to
5 appeal placement and rank on the waiting list to the
6 Office of Administrative Hearings, information on
7 how to file an appeal, and contact information for
8 the legal program established by section 108 and the
9 protection and advocacy agency;
10 (4) The name and contact information of the
11 person to contact at the DDS if any of the factors
12 that determined the person’s placement or rank on
13 the waiting list change; and
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1 (5) Information about supports and services
2 offered by the DDA to all persons on the waiting
3 list, including information and referral services.
4 (e) No less than 4 times per year the DDS shall
5 inform each person who is on a waiting list of efforts
6 that have been made or are being made to provide
7 supports and services as soon as possible and of the
8 projected time frame within which supports and
9 services will be made available.
10 (f) By the 15th calendar day after the end of
11 each fiscal quarter, the DDS shall publish and
12 widely disseminate a quarterly statistical report on
150
1 each waiting list. Quarterly reports shall include
2 quarterly and fiscal year-to-date data on:
3 (1) The number of persons on the waiting
4 list;
5 (2) The length of time persons have been on
6 the waiting list; and
7 (3) The number of persons removed from
8 the waiting list and reasons for such removal.
9 (g) By January 1 of each year, the DDS shall
10 publish and widely disseminate an annual report on
11 each waiting list during the prior fiscal year, which
12 for each waiting list shall:
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1 (1) Explain how a person is placed on the
2 waiting list and what criteria determine rank on the
3 list;
4 (2) Provide a demographic profile of
5 persons on the waiting list;
6 (3) Provide aggregate statistics on appeals
7 of placement and rank on the waiting list, and
8 disposition of such appeals;
9 (4) Identify on an aggregate basis the level
10 of need and requested supports and services of
11 persons on the waiting list, discuss the reasons for
12 the lack of supports and services, and project the
13 annual cost to meet these needs;
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1 (5) Identify the minimum, maximum,
2 average, and median number of days that persons
3 have been on the waiting list and state the numbers
4 of persons on the list for less than 3 months, between
5 3 and 6 months, between 6 months and one year, and
6 by 6-month increments thereafter;
7 (6) Identify the number of persons removed
8 from the waiting list during the previous fiscal year,
9 the reasons for such removal, and the average length
10 of time on the waiting list prior to removal;
11 (7) Describe the supports and services,
12 including information and referral services, offered
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1 to persons and families while they are on the waiting
2 list; and
3 (8) Outline a method to reduce the waiting
4 list during the current fiscal year and subsequent
5 fiscal year and to ensure a maximum waiting period
6 of no more than 90 days.
7 (h) In accordance with the District of Columbia
11 to implement subsections (a), (b), (c), and (d) of this
12 section.
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1 Sec. 115. Capacity and decision-making
2 supports; health-care decisions.
3 (a) Every adult person with a developmental
4 disability shall be presumed to be capable of making
5 decisions about his or her personal care, health care,
6 legal matters, financial affairs, business, assets, and
7 all other aspects of the person’s life.
8 (b) A request for eligibility determination or a
9 request to receive supports and services under this
10 act is not:
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4 (c) A person who has requested an eligibility
5 determination or has been found eligible for supports
6 and services under this act shall be afforded all
7 information, opportunities, supports, and reasonable
8 accommodations needed to exercise control and to
9 freely make and express choices through verbal,
10 nonverbal, and behavioral means. A person’s way of
11 communicating with others is not grounds for
12 deciding that the person is incapable of providing
13 informed consent and making health-care decisions.
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1 (d) An adult person who has been found eligible
2 for supports and services under this act shall have
3 the opportunity to execute a durable power of
4 attorney pursuant to D.C. Official Code § 21-2205
5 and to identify one or more individuals who are
6 reasonably available, mentally capable, and willing
7 to provide substituted consent pursuant to D.C.
8 Official Code § 21-2210, if the person were to
9 become certified as incapacitated to make a health-
10 care decision in accordance with D.C. Official Code
11 § 21-2204.
12 (e) Nothing in this act shall be construed as
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2 guardian.
3 (f) If a provider or the DDA reasonably believes
4 that an adult person lacks the capacity to provide
5 informed consent for a health-care decision, the
6 provider or the DDA promptly shall seek a
7 determination of the person’s capacity in accordance
8 with D.C. Official Code § 21-2204. If the person is
9 certified as incapacitated and unable to consent to a
10 health-care decision in accordance with D.C.
11 Official Code § 21-2204, the DDA or the provider
12 shall promptly seek the provision of substituted
13 consent from the person’s attorney-in-fact pursuant
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1 to D.C. Official Code § 21-2206 or, if no attorney-
2 in-fact has been authorized pursuant to D.C. Official
3 Code § 21-2205 or is reasonably available, mentally
4 capable, and willing to act, from an individual
5 authorized to provide substituted consent pursuant to
6 D.C. Official Code § 21-2210.
7 (g) If an adult person is certified as
8 incapacitated and unable to consent to a health-care
9 decision in accordance with D.C. Official Code §
10 21-2204, and no attorney-in-fact or person listed in
11 D.C. Official Code § 21-2210(a) is reasonably
12 available, mentally capable, and willing to act:
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1 (1) Except for decisions relating to
2 psychotropic medications, the District shall petition
3 the Court for appointment of a guardian pursuant to
4 Chapter 20 of Title 21. The District’s petition shall
5 request the form of guardianship that is least
6 restrictive to the incapacitated person in duration and
7 scope, taking into account the incapacitated person’s
8 current mental and adaptive limitations or other
9 conditions warranting the procedure. This subsection
10 does not preclude any other party from petitioning
11 the Court for appointment of a guardian; or
12 (2) For decisions relating to psychotropic
13 medications, the provider may administer
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1 medication only when the administration of
2 medication is accompanied by a behavior support
3 plan and only after receiving approval from an
4 independent panel appointed by the DDA pursuant
5 to section 116. In an emergency in which a person is
6 experiencing a mental health crisis and in which the
7 immediate provision of mental health treatment
8 including medication is, in the written opinion of the
9 attending physician, necessary to prevent serious
10 injury to the person or others, the provider may
11 administer medication without seeking the person’s
12 prior informed consent.
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1 Sec. 116. Independent panel for administration
2 of psychotropic medications.
3 (a) The DDA shall establish an independent
4 panel to review all proposals to administer
5 psychotropic medications to a person who has been
6 certified as incapacitated and unable to consent to
7 the proposed medication in accordance with D.C.
8 Official Code § 21-2204, and who has no attorney-
9 in-fact or person listed in D.C. Official Code § 21-
10 2210(a) who is reasonably available, mentally
11 capable, and willing to act.
12 (b) The independent panel shall be composed of
13 3 members. The members of the panel and their
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1 employers shall be immune from suit for any claim
2 arising from any good faith act or omission under
3 this section. The members of the panel shall not be
4 affiliated with the person, the provider, or the
5 physician seeking to administer the medication, but
6 shall include:
7 (1) A board-certified psychiatrist or an
8 advanced practice registered nurse;
9 (2) A licensed professional; and
10 (3) A person who receives supports and
11 services under this act, or, if unavailable, an
12 advocate or a community member.
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1 (c) In accordance with the District of Columbia
4 seq.), the Director of the DDS shall issue rules to
5 establish administrative procedures for the
6 independent panel that shall include:
7 (1) A meeting of the panel no later than one
8 week after the DDA receives a request for consent;
9 (2) Written and oral notice to the person not
10 less than 48 hours prior to when the panel will meet;
11 (3) The right of the person to be present
12 when the panel meets and to have a representative
13 present during any such meeting;
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1 (4) The right of the person to have
2 reasonable access, prior to the meeting of the panel,
3 to the records and information which the panel will
4 consider in making its decision;
5 (5) The opportunity, at the meeting of the
6 panel, for the person and his or her representative to
7 present information, ask questions, and discuss the
8 wishes of the person;
9 (6) The issuance of a written decision by
10 the panel no later than one week after the meeting of
11 the panel which shall include the facts established
12 and the basis for the panel’s decision;
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1 (7) The issuance to the person, the person’s
2 representative, and the provider of a copy of the
3 written decision and a notice of the person’s right to
4 request that the HRAC review the decision; and
5 (8) The right of the person to request that
6 the HRAC review the decision of the panel.
7 (d) If the person requests a review by the
8 HRAC before the decision of the independent panel
9 has been implemented, the decision shall not be
10 implemented until after the HRAC responds to the
11 requested review. The HRAC shall conduct the
12 review at its next meeting or no later than 30 days
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1 after the request, whichever is earlier, and shall issue
2 a response within 5 business days.
3 (e) The independent panel shall issue a written
4 decision which may grant, refuse, or withdraw
5 consent to the prescription of the proposed
6 psychotropic medication. The panel shall seek to
7 conform as closely as possible to a standard of
8 substituted judgment or, if the person’s wishes are
9 unknown and remain unknown after reasonable
10 efforts to discern them, make the decision on the
11 basis of the person’s best interests. If the panel
12 grants consent, the consent shall be granted for a
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1 limited period of time and shall last no longer than 9
2 consecutive months.
3 (f) For a person for whom the independent
4 panel has granted, refused, or withdrawn consent,
5 the DDA shall offer the person the opportunity to
6 execute a durable power of attorney in accordance
7 with D.C. Official Code § 21-2205 and shall
8 continue to seek to identify one or more individuals
9 listed in D.C. Official Code § 21-2210(a) who may
10 be reasonably available, mentally capable, and
11 willing to act.
12 (g) For a person for whom the independent
13 panel has provided consent for 3 or more
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1 consecutive months, and for whom there is a
2 reasonable likelihood that no decision-maker will
3 become available and that the person will not
4 achieve capacity during the next 6 months to make
5 decisions regarding psychotropic medications on his
6 or her own behalf, the District shall petition the
7 Court for appointment of a guardian pursuant to
8 Chapter 20 of Title 21 of the District of Columbia
9 Official Code. The District’s petition shall request
10 the type of guardianship that is least restrictive to the
11 incapacitated person in duration and scope, taking
12 into account the incapacitated person’s current
13 mental and adaptive limitations or other conditions
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1 warranting the procedure. This subsection does not
2 preclude any other party from petitioning the Court
3 for appointment of a guardian.
4 (h) Refusal to consent to psychotropic
5 medications shall not be used as evidence of a
6 person’s incapacity.
7 (i) Refusal to consent to services on the basis of
8 a valid religious objection shall not be overridden
9 absent a specific court order requiring the provision
10 of services.
11 Sec. 117. Complaints; requests for fair hearings.
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1 (a) A person who has been found eligible for
2 supports and services under this act shall have the
3 right to:
4 (1) File a complaint with the person’s
5 support coordinator;
6 (2) File a complaint with the problem
7 resolution office established by section 118; and
8 (3) Request a hearing pursuant to section
9 119, the APA, and federal regulations.
10 (b) A person, the parent of a minor, the person’s
11 guardian, the person’s advocate, the person’s
12 counsel, the person’s family member, an employee
13 of a provider, an employee of the DDA, or an
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1 interested person may file a complaint on behalf of
2 the person with the person’s support coordinator or
3 with the DDS.
4 (c) A person who has been found eligible for
5 supports and services is not required to use the
6 problem resolution system established by section
7 118 and may use other mechanisms for resolving a
8 complaint, including raising the complaint directly
9 with the Mayor, the Director of the DDS, the DHCF,
10 District employees, the ODR, the OHR, a provider,
11 filing a request for a fair hearing in accordance with
12 federal and District laws, regulations, and
13 procedures established for fair hearings and appeals
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1 for the Medicaid Program, or by petitioning the
2 Court. Nothing in this act shall be construed to
3 require a person to exhaust administrative remedies,
4 established by this act or otherwise, prior to
5 petitioning litigation concerning a person’s rights.
6 However, a person cannot concurrently use separate
7 mechanisms for resolving a grievance.
8 (d) No individual, agency, or provider shall
9 retaliate against a person who files a complaint or
10 requests a hearing.
11 Sec. 118. Internal problem resolution system;
12 appeals of ineligibility.
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1 (a) The District shall establish an internal
2 problem resolution system within the DDS to
3 provide a fair and efficient mechanism for receiving,
4 investigating, and resolving complaints under this
5 act. The internal problem resolution system shall
6 include:
7 (1) The opportunity for a person who has
8 been found eligible for supports and services to file a
9 complaint with the DDS orally, by telephone, in
10 writing, or electronically;
11 (2) Assistance for a person or the parent of
12 a minor who needs help in filing a complaint;
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1 (3) The right to be represented throughout
2 the problem resolution process;
3 (4) Definite time frames for each phase of
4 the problem resolution process;
5 (5) An expedited review for any complaint
6 alleging abuse or neglect;
7 (6) A requirement that supports and
8 services that are the subject of a complaint shall
9 continue without change, limitation, reduction, or
10 termination pending resolution of the complaint, if
11 the purpose of the complaint is to oppose a
12 limitation, reduction, or termination;
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1 (7) A requirement for education and
2 assistance to persons who have been found eligible
3 for supports and services and their families, provider
4 staff, and DDA staff about persons’ rights and the
5 internal problem resolution system; and
6 (8) A prohibition on retaliatory actions by
7 the DDA and providers against persons who file
8 complaints.
9 (b) The District shall establish a problem
10 resolution office (“problem resolution office”)
11 within the DDS that is authorized to resolve
12 complaints for the DDA and to operate the internal
13 problem resolution system established by subsection
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1 (a) of this section. The problem resolution office
2 shall at a minimum have a full-time Director and 2
3 full-time staff and shall maintain adequate staff to
4 carry out the duties established by this section.
5 (c) A complaint filed with the problem
6 resolution office may include:
7 (1) A statement that a person is not satisfied
8 with his or her support coordinator, ISP, or the
9 availability, quality, manner, setting, or
10 responsiveness of the person’s supports and
11 services;
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1 (2) An allegation that the person’s rights or
2 protections provided under this act have been
3 violated or limited;
4 (3) An allegation that the District has not
5 provided the person with the person’s choice of
6 home and community-based services as an
7 alternative to institutional care;
8 (4) An allegation that the District has
9 denied, delayed, suspended, reduced, or terminated
10 supports and services authorized by this act;
12 denied or delayed access by the person or the
13 person’s representative to the person’s records;
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2 denied or delayed a request for a new support
3 coordinator; and
4 (7) Any other statement of a person’s
5 dissatisfaction relating to his or her rights, supports,
6 or services.
7 (d) On receipt of a complaint, the problem
8 resolution office shall:
9 (1) Provide a copy of the complaint to the
10 relevant parties, as defined by the DDS in
11 implementing regulations;
12 (2) Attempt to resolve the complaint by
13 informal communication with any party necessary to
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1 resolve the complaint within 5 business days of
2 receipt of the complaint, unless the person does not
3 consent to this informal communication; and
4 (3) If informal communication fails to
5 resolve the complaint, or if the person does not
6 consent to informal communication, attempt to
7 resolve the complaint through alternative dispute
8 resolution techniques by:
9 (A) Holding a meeting with the relevant
10 parties within 10 business days;
11 (B) Ensuring that the meeting in
12 subparagraph (A) of this paragraph is attended by a
13 DDA representative with the authority to bind the
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1 DDA, the person, the person’s support coordinator,
2 and any other party necessary to resolve the
3 complaint; and
4 (C) At the request of the parties,
5 drafting a written agreement between the parties to
6 address the person’s complaint which shall be signed
7 by the Director of the DDS or the Director’s
8 designee.
9 (e) The problem resolution office shall report
10 any individual, agency, or provider that retaliates
11 against a person who files a complaint or requests a
12 hearing to the Office of the Inspector General.
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1 (f) Upon reasonable belief that a person who
2 has filed a complaint or on whose behalf a complaint
3 has been filed is at imminent risk of serious harm,
4 the DDA shall immediately take all steps necessary
5 to protect the person.
6 (g) The problem resolution office shall track all
7 complaints and all reports of retaliation against a
8 person who files a complaint or requests a hearing.
9 The problem resolution office shall share these
10 aggregate data with the comprehensive quality
11 management and improvement system established by
12 section 123.
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1 (h) If the time period provided in this section or
2 in the implementing rules for completion of any
3 action or step by the problem resolution office, the
4 DDA, or other agency lapses without the action or
5 step having been completed, the action or step shall
6 be deemed as occurred and the person shall have the
7 option of proceeding to the next step of the
8 grievance process without waiting for completion of
9 the action or step.
10 (i) A denial or termination of eligibility shall not
11 be subject to the problem resolution system
12 established by this section. If the DDA finds a
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1 person not eligible for supports and services under
2 this act:
3 (1) The person, the parent of a minor, the
4 person’s guardian, or any individual chosen by the
5 person may appeal a denial of eligibility to the
6 Deputy Director of the DDA;
7 (2) The Deputy Director of the DDA shall
8 ensure that the eligibility criteria and comprehensive
9 screening process required under section 106 were
10 applied in accordance with this act and with
11 regulations issued by the DDS, and shall issue a
12 written response to the person’s appeal within 10
13 business days from the date the appeal was received;
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1 (3) The person, the parent of a minor, the
2 person’s guardian, or any individual chosen by the
3 person may appeal the Deputy Director of the
4 DDA’s decision to the Director of the DDS; and
5 (4) The Director of the DDS shall ensure
6 that the eligibility criteria and comprehensive
7 screening process required under section 106 were
8 applied in accordance with this act and with
9 regulations issued by the DDS, and shall issue a
10 written response to the person’s appeal within 10
11 business days from the date the Deputy Director of
12 the DDA issued a written response to the appeal.
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1 This action constitutes a final agency decision for
2 the purposes of the APA.
3 (j) Nothing in this section shall affect:
4 (1) The procedures for mediation of, or
5 procedures for review through an impartial due
6 process hearing of, determinations made by
7 personnel of the District that affect the provision of
8 vocational rehabilitation services to applicants or
9 eligible individuals as required under the
10 Rehabilitation Act of 1973, as amended, approved
11 August 7, 1998 (112 Stat. 1116; 29 U.S.C.S. § 720
12 et seq.); or
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1 (2) The procedures for fair hearings and
2 appeals for the Medicaid Program.
3 Sec. 119. Petition for review of agency action
4 under this act.
5 (a) A person may petition for review of agency
6 action under this act by filing a written petition for
7 review of agency action with the Family Court of the
8 Superior Court in the manner and form prescribed by
9 the Court. The petition may be filed by the person,
10 the person’s counsel, the person’s advocate, the
11 person’s parent or guardian, or other legal
12 representative. The petition and any filings with the
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1 Court shall be considered privileged and confidential
2 and shall be treated in all cases as if filed under seal.
3 (b) The Court shall conduct a hearing promptly
4 after filing of the petition pursuant to subsection (a)
5 of this section. Any hearing shall be conducted in as
6 informal a manner as may be consistent with orderly
7 procedure, and shall be closed to the public unless
8 the petitioner or his or her counsel requests that a
9 hearing be open to the public. The petitioner shall
10 have the right to be present during hearings and to
11 testify, but shall not be compelled to testify, and
12 shall be so advised by the Court. The petitioner shall
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1 have the right to call witnesses and present evidence,
2 and to cross-examine opposing witnesses.
3 (c) Unless provided otherwise by statute or
4 federal law, the party proposing that the agency take
5 action or grant a benefit shall have the burden of
6 proof. The agency shall have the burden of proof in
7 all cases involving a termination, reduction, or delay
8 of a service or benefit to a person who has been
9 found eligible for supports and services under this
10 act, and must present clear and convincing evidence
11 that their decision is supported by substantial
12 evidence and is not clearly erroneous as a matter of
13 law. In cases where the petitioner has the burden of
189
1 proof, the petitioner shall present clear and
2 convincing evidence to the Court that he or she is
3 entitled to the relief sought in the petition. The Court
4 shall not set aside the decision of the agency if it is
5 supported by substantial evidence and not clearly
6 erroneous as a matter of law. The Court shall
7 promptly issue a written decision of findings of fact,
8 conclusions of law, and order on the petition which
9 shall be based on substantial evidence in the record
10 developed in the proceedings.
11 (d) Costs and expenses of all proceedings held
12 under this section shall be paid as follows:
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1 (1) The person shall be considered in forma
2 pauperis for purposes of these proceedings; and
3 (2) Witnesses shall be paid the same fees
4 and mileage as for attendance at Court to be paid
5 upon the approval of the Court.
6 (e) Any order of the Court may be appealed in a
7 like manner as other civil actions.
8 Sec. 120. Initiation of action to compel rights;
9 civil remedy; sovereign immunity barred; defense to
10 action; payment of expenses.
11 (a) Any individual shall have the right to initiate
12 an action in the Court to compel the rights afforded
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1 persons with developmental disabilities under this
2 act.
3 (b) Any person who has been found eligible for
4 supports and services under this act shall have the
5 right to a civil remedy in an amount not less than
6 $25 per day from the District for each day on which
7 said person is not provided with adequate supports
8 and services pursuant to the person’s ISP.
9 (c) Sovereign immunity shall not bar an action
10 under this section.
11 (d) Reasonable attorneys’ fees and court costs
12 shall be available for actions brought under this
13 section.
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1 Sec. 121. Deprivation of civil rights; liability;
2 immunity; exceptions.
3 (a) No person shall be deprived of any civil
4 right solely by reason of his or her having received
5 supports and services under this act.
6 (b) Any person who violates or abuses any
7 rights or privileges protected by this act shall be
8 liable for damages as determined by law, for Court
9 costs, and for reasonable attorneys’ fees. Any person
10 who acts in good faith compliance with the
11 provisions of this act shall be immune from civil or
12 criminal liability for actions in connection with
13 screening of or support and service delivery to a
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1 person under this act. However, this section shall not
2 relieve any person from liability for acts of
3 negligence, misfeasance, nonfeasance, or
4 malfeasance.
5 Sec. 122. Records.
6 (a) The DDA shall maintain complete records
7 for each person who applies for or is found eligible
8 for supports and services. Upon oral or written
9 request, a person has the right to access all records
10 relating to him or her within 1 business day.
11 (b) Records for persons receiving supports or
12 services shall at a minimum include information
13 identifying the person and information pertaining to
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1 the person’s eligibility determination, the person’s
2 ISP, the person’s personal funds if controlled by a
3 public or private agency, and any extraordinary
4 incident or accident involving the person including
5 any reports of investigations of abuse, neglect, or
6 exploitation of the person.
7 (c) (1) All information obtained and any records
8 prepared by the DDA or a provider in the course of
9 determining eligibility or planning and providing
10 supports and services to a person shall be considered
11 privileged and confidential and may be disclosed
12 only:
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1 (A) To the person, the parent of a
2 minor, the person’s guardian, the person’s counsel,
3 and the person’s advocate;
4 (B) To any individual authorized by the
5 person in writing;
6 (C) To the extent necessary for the
7 acquisition, provision, oversight, or referral of
8 supports and services and for referral to the advocate
9 program established by section 107;
10 (D) To the extent necessary to make
11 claims on behalf of the person for aid, insurance, or
12 medical assistance to which the person may be
13 entitled;
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1 (E) Pursuant to court order or to an
2 independent external monitoring entity designated
3 by the DDA;
4 (F) To the Court when a petition to
5 establish guardianship for the person is filed
6 pursuant to Title 21; and
7 (G) To qualified personnel, if
8 necessary, for the purpose of conducting scientific
9 research or management audits, financial audits, or
10 program evaluation; provided, that the personnel
11 have demonstrated and provided assurances, in
12 writing, of their ability to insure compliance with the
13 requirements of this section. Such personnel shall
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1 not identify, directly or indirectly, a person in any
2 reports of such research, audit, or evaluation, or
3 otherwise disclose a person’s identity in any manner.
4 (2) The individual to whom information
5 about a person has been released under paragraph (1)
6 of this subsection shall be prohibited from using or
7 releasing the information except in the proper
8 performance of his or her duties.
9 (d) In the event that a person, the parent of a
10 minor, the person’s guardian, the person’s counsel,
11 the person’s advocate, or any individual authorized
12 by the person in writing questions the accuracy or
13 completeness of the person’s records, he or she may
198
1 request an amendment to the person’s record. Within
2 15 days after receiving a request for an amendment,
3 the DDA shall approve or disapprove the request and
4 notify the person and, where applicable, the
5 individual who requested the amendment.
6 (e) In accordance with the District of Columbia
9 seq.), the Director of the DDS shall issue rules
10 establishing standards for the records maintained by
11 the DDA and providers, including standards for the
12 content of records and procedures for maintaining,
13 updating, amending, protecting the confidentiality
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1 of, and disclosing records in accordance with this
2 section and with all applicable District and federal
3 laws.
4 (f) Nothing in this section shall prohibit the
5 DDA from producing and sharing aggregate data
6 that do not directly or indirectly identify a person.
7 (g) Nothing in this section shall be deemed to
8 limit access by a person receiving supports and
9 services to the person’s records, or to limit any
10 rights established under federal or local law.
11 Sec. 123. Quality standards and monitoring.
12 (a) The DDA shall be the lead agency
13 responsible for developing and implementing a
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1 comprehensive quality management and
2 improvement system which at a minimum discovers
3 evidence to determine if supports and services ensure
4 the health and safety of persons supported and
5 achieve desired outcomes. The DDA and partner
6 agencies shall continually review data to identify
7 potential concerns and opportunities for service
8 improvement. As the lead agency, the DDA shall:
9 (1) Provide prompt written notification of
10 incidents and patterns of concerns and deficiencies
11 that require corrective action to providers, persons
12 receiving supports and services, and parents and
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1 guardians of persons receiving supports and services
2 where appropriate; and
3 (2) Ensure that providers take prompt,
4 appropriate corrective actions to address incidents
5 and patterns of concerns and deficiencies, and to
6 protect persons from harm.
7 (b) The District shall develop and implement a
8 protocol for interagency sharing of critical
9 information, including information regarding
10 provider performance and complaints, that could
11 affect the safety and well-being of persons receiving
12 supports and services, and for cooperative
13 enforcement efforts between agencies responsible for
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1 provider oversight. The DDA shall be the lead
2 agency for implementation of the protocol. The
3 protocol shall ensure:
4 (1) Coordination of actions to address
5 systemic problems with other responsible agencies
6 including the APS, the CFSA, the DCPS, the
7 DCPCS, the DHCF, the DHS, the DMH, the DOH,
8 the DYRS, and the Office on Aging;
9 (2) Establishment of timelines for providing
10 notice of concerns and the development of corrective
11 action plans;
12 (3) Implementation of corrective or
13 enforcement actions when necessary including
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1 making changes in supports and services, providing
2 additional training or technical assistance to staff,
3 levying fines, revoking provider licenses or
4 certifications, terminating provider contracts, or other
5 changes to provider licenses, certifications, and
6 contracts to ensure the safety of person;
7 (4) Prompt investigation of abuse, neglect,
8 exploitation, and death;
9 (5) Coordinated planning and
10 implementation of emergency preparedness activities;
11 and
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1 (6) Implementation and compliance by
2 agencies and providers with all relevant District and
3 federal laws, regulations and policies.
4 (c) By one year after the effective date of this
5 act, the DDA shall implement a publicly-available
6 mandatory provider report card system that allows
7 persons and their families to compare providers on a
8 routine basis according to standards of quality
9 performance. The DDA shall widely publicize the
10 provider report card system, shall publish provider
11 report cards on its web site, and shall provide copies
12 of provider report cards to the public upon request.
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1 (d) The DDA shall include persons receiving
2 supports and services and their families in ongoing
3 systemic quality management and improvement
4 activities for:
5 (1) Assessment of ISP implementation; and
6 (2) Evaluation of satisfaction with supports
7 and services.
8 (e) In accordance with the District of Columbia
11 seq.), the Director of the DDS shall issue rules to
12 implement this section that shall include standards
206
1 that define incidents, patterns of concerns, and
2 deficiencies that require corrective action.
3 Sec. 124. Reporting and investigation of abuse,
4 neglect, and exploitation.
5 (a) Except as provided in subsection (b) of this
6 section, whenever an employee of the DDA or a
7 provider has as a result of his or her employment
8 cause to believe that a person who is eligible for
9 supports and services under this act has recently
10 been or is being subject to abuse, neglect, or
11 exploitation by another and has no one willing and
12 able to provide adequate protection, the employee
13 shall:
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1 (1) Immediately report this belief to the
2 DDA; and
3 (2) Immediately report this belief to the
4 APS in accordance with section 4 of Adult
5 Protective Services Act of 1984, effective December
6 7, 1984 (D.C. Law 5-156; D.C. Official Code § 7-
7 1903).
8 (b) The duty to report established by subsection
9 (a) of this section shall not apply to:
10 (1) An advocate; or
11 (2) A social worker or licensed health
12 professional who has as a client or patient, or is
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1 employed by a lawyer representing, a third person
2 who is allegedly responsible for the abuse or neglect.
3 (c) A report made pursuant to this section may
4 be either oral or written and shall include, if known:
5 The name, age, physical description, and location of
6 the adult alleged to be in need of protective services;
7 the name and location of the person(s) allegedly
8 responsible for the abuse, neglect, or exploitation;
9 the nature and extent of the abuse, neglect, or
10 exploitation; the basis of the reporter’s knowledge;
11 the names of the reporter and the reporter’s
12 employer; and any other information the reporter
13 believes might be helpful to an investigation.
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1 (d) The Mayor shall:
2 (1) Designate the DDA to investigate
3 reports of alleged abuse, neglect, self-neglect, and
4 exploitation of persons who have been found eligible
5 for DDA supports and services in accordance with
6 section (5)(a)(1) of the Adult Protective Services Act
7 of 1984, effective December 7, 1984 (D.C. Law 5-
8 156; D.C. Official Code § 7-1904(a)(1)); and
9 (2) Designate the DDA to request that the
10 Attorney General promptly conduct a factual inquiry
11 and, if legally supportable, file a petition in court for
12 a provisional order for persons who have been found
13 eligible for DDA supports and services in
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1 accordance with section 7(a) of the Adult Protective
2 Services Act of 1984, effective December 7, 1984
3 (D.C. Law 5-156; D.C. Official Code § 7-1906(a)).
4 (e) The DDA shall provide an adult in need of
5 protective services who is eligible for supports and
6 services under this act with expedited access to
7 supports and services, if expedited access is
8 reasonably calculated to remedy or substantially
9 reduce the likelihood of abuse, neglect, exploitation,
10 or self-neglect. The DDA may provide such supports
11 and services on a temporary basis of up to 90 days or
12 on a permanent basis.
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1 (f) The DDA shall ensure that all employees of
2 the DDA and of providers receive initial and annual
3 training on the requirements of this section and the
4 identification of abuse, neglect, exploitation, and
5 self-neglect.
6 Sec. 125. Checks of criminal background, abuse
7 and neglect registries, and traffic record.
8 (a) Every employee of the DDA, a provider, and
9 the advocate program established by section 107
10 (“advocate program”) and every unsupervised
11 volunteer of the DDA, a provider, and the advocate
12 program who has direct contact with persons with
13 developmental disabilities, shall complete a criminal
212
1 background check, a check against all District
2 registries of substantiated abuse and neglect, and a
3 traffic record check where applicable. To the extent
4 that this act conflicts with any other District law, the
5 requirements of this act shall supersede any other
6 District law, except that this law shall not apply to
7 foster parents.
8 (b) (1) Except as provided in paragraph (2) of
9 this subsection, the requirements of this section shall
10 apply to:
11 (A) An applicant for paid employment
12 with the DDA, a provider, or the advocate program;
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1 (B) An applicant for voluntary service
2 in a position at the DDA, a provider, or the advocate
3 program that will involve direct, unsupervised
4 contact with persons with developmental disabilities;
5 (C) An employee of the DDA, a
6 provider, or the advocate program; and
7 (D) A volunteer who serves the DDA, a
8 provider, or the advocate program in a position that
9 involves direct, unsupervised contact with persons
10 with developmental disabilities.
11 (2) A job applicant, volunteer applicant,
12 employee, or volunteer who has an active federal
214
1 security clearance shall not be required to submit to
2 a criminal background check.
3 (c) The DDA, providers, and the advocate
4 program shall not hire any job applicant or volunteer
5 applicant who is subject to the requirements of this
6 section without:
7 (1) Checking the applicant’s name against
8 the DDA registry of former employees terminated
9 because of substantiated acts of abuse or neglect
10 established by section 126;
12 the Nurse Aide Abuse Registry, any registries of
13 substantiated abuse and neglect maintained by the
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1 District, and any registries of substantiated abuse
2 and neglect maintained by a state and identified by
3 the Mayor in rulemaking for this section;
5 the List of Excluded Individuals/Entities maintained
6 by the U.S. Department of Health and Human
7 Services, Office of Inspector General to exclude
8 from participation in Medicare, Medicaid, and other
9 Federal health care programs individuals and entities
10 who have engaged in fraud or abuse, and to impose
11 civil money penalties for certain misconduct related
12 to Federal health care programs in accordance with
216
1 section 1128 and section 1156 of the Social Security
2 Act (42 U.S.C. §§ 1320a–7 and 1320c–5);
3 (4) Conducting a traffic record check, if the
4 applicant will be required to drive a motor vehicle to
5 transport persons with developmental disabilities in
6 the course of performing his or her duties; and
7 (5) Requiring the applicant to provide a
8 copy of a Federal criminal history record, obtained
9 pursuant to the Federal Bureau of Investigation
10 appropriation of Title II of Public Law 92-544, 86
11 Stat 1115, that is not more than 30 days old.
12 (d) A job applicant or volunteer applicant who
13 is required to apply for a criminal background check
217
1 in accordance with this section may be offered the
2 position contingent upon receipt of a satisfactory
3 background check, and may begin working in a
4 setting that does not involve direct contact with
5 persons with developmental disabilities prior to
6 receiving the results.
7 (e) At the time of application, the DDA,
8 providers, and the advocate program shall provide
9 written notice of the requirements of this section to
10 all job applicants and volunteer applicants who are
11 subject to the requirements of this section.
12 (f) Before any job applicant or volunteer
13 applicant who is subject to the requirements of this
218
1 section may be offered a compensated position or an
2 unsupervised volunteer position, the DDA, the
3 provider, or the advocate program shall require the
4 applicant to:
5 (1) Provide a copy of a Federal criminal
6 history record that is not more than 30 days old, or
7 provide:
8 (A) A complete set of fingerprints in a
9 form approved by the FBI which may be submitted
10 by the MPD to the FBI for Federal criminal history
11 information pursuant to the Federal Bureau of
12 Investigation appropriation of Title II of Public Law
13 92-544, 86 Stat 1115. Fingerprinting for the
219
1 purposes of this section may be conducted by any
2 individual authorized to do so by the Mayor or the
3 FBI;
4 (B) Written authorization for the Mayor
5 to conduct a criminal background check;
6 (C) Written confirmation that the job
7 applicant or volunteer applicant has been informed
8 by the DDA or provider that the Mayor is authorized
9 to conduct a criminal background check on the job
10 applicant or volunteer applicant;
11 (D) Any additional identification that is
12 required for the criminal background check,
220
1 including name, social security number, birth date,
2 and gender; and
3 (E) Written acknowledgment that the
4 DDA or provider has notified the job applicant or
5 volunteer applicant of his or her right to receive the
6 original criminal background check report and to
7 challenge the accuracy and completeness of the
8 report;
9 (2) Provide a signed affirmation stating
10 whether or not the job applicant or volunteer
11 applicant has been convicted of a crime, has pleaded
12 nolo contendere, is on probation before judgment or
13 placement of a case upon a stet docket, or has been
221
1 found not guilty by reason of insanity, for any sexual
2 offenses or intrafamily offenses in the District or
3 their equivalent in any other state or territory, or for
4 any of the following felony offenses or their
5 equivalent in another state or territory:
6 (A) Murder, attempted murder, or
7 manslaughter;
8 (B) Arson;
9 (C) Assault, assault with a dangerous
10 weapon, mayhem, malicious disfigurement, or
11 threats to do bodily harm;
12 (D) Burglary;
13 (E) Robbery;
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1 (F) Kidnapping;
2 (G) Theft, fraud, forgery, extortion, or
3 blackmail;
4 (H) Illegal use or possession of a
5 firearm;
6 (I) Sexual offenses, including indecent
7 exposure; promoting, procuring, compelling,
8 soliciting, or engaging in prostitution; corrupting
9 minors (sexual relations with children); molesting;
10 voyeurism; committing sex acts in public; incest;
11 rape; sexual assault; sexual battery; or sexual abuse;
12 but excluding sodomy between consenting adults;
13 (J) Child abuse or cruelty to children; or
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1 (K) Unlawful distribution of or
2 possession with intent to distribute a controlled
3 substance;
4 (3) Provide a signed affirmation stating
5 whether or not the job applicant or volunteer
6 applicant has ever been terminated or separated from
7 employment as a result of substantiated abuse or
8 neglect; and
9 (4) Provide written acknowledgment that
10 the DDA or provider may choose to deny the
11 applicant employment or a volunteer position, or to
12 terminate an employee or volunteer, based on the
13 outcome of the criminal background check, registry
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1 checks, check of the List of Excluded
2 Individuals/Entities maintained by the U.S.
3 Department of Health and Human Services, Office
4 of Inspector General, and traffic record check if
5 applicable.
6 (g) All employees and volunteers who are
7 subject to the requirements of this section shall
8 submit to periodic criminal background checks and
9 checks against all registries of abuse and neglect
10 maintained by the District. Criminal background
11 checks shall be conducted using the same procedures
12 for job applicants and volunteer applicants described
13 in subsection (f) of this section.
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1 (h) The DDA, providers, and the advocate
2 program shall not employ or permit to serve as a
3 volunteer in an unsupervised position that involves
4 direct contact with persons with developmental
5 disabilities an individual who, in the District or in
6 any other state or territory of the United States
7 where such individual has resided, has been
8 convicted of, has pleaded nolo contendere to, is on
9 probation before judgment or placement of a case on
10 the stet docket because of, or has been found not
11 guilty by reason of insanity for any of the felony
12 offenses listed in subsection (f)(2) of this section.
226
1 (i) If based on a criminal background check a
2 job applicant or volunteer applicant has been denied
3 employment, or an employee or volunteer has been
4 terminated, the DDA, the provider, or the advocate
5 program shall provide written notice and the job
6 applicant, volunteer applicant, employee or
7 volunteer may appeal the denial to the Commission
8 on Human Rights within 30 days of the date of the
9 written statement.
10 (j) A volunteer may use the same criminal
11 background check for a period of 2 years when
12 applying for multiple volunteer positions, if the
13 volunteer provides a signed affirmation that he or
227
1 she has not been convicted of a crime, has not
2 pleaded nolo contendere, is not on probation before
3 judgment or placement of a case upon a stet docket,
4 and has not been found not guilty by reason of
5 insanity, for any sexual offenses or intrafamily
6 offenses in the District or their equivalent in any
7 other state or territory, or for any of the felony
8 offenses listed in subsection (f)(2) of this section, or
9 their equivalent in any other state or territory, since
10 the date of the most recent criminal background
11 check conducted on him or her.
12 (k) All criminal background records received by
13 the Mayor shall be confidential and are for the
228
1 exclusive use of making employment-related
2 determinations under this act. The records shall not
3 be released or otherwise disclosed to any individual
4 except when:
5 (1) Required as one component of an
6 application for employment or voluntary service
7 with the DDA or a provider under this act;
8 (2) Requested by the Mayor, or his or her
9 designee, during an official inspection or
10 investigation;
11 (3) Ordered by a court;
12 (4) Authorized by the written consent of the
13 individual being investigated; or
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1 (5) Used for a corrective, adverse, or
2 administrative action in a personnel proceeding.
3 (l) A job applicant, volunteer applicant,
4 employee, or volunteer with the DDA, a provider, or
5 the advocate program who intentionally provides
6 false information that is material to the application in
7 the course of applying for the position shall be
8 subject to prosecution pursuant to section 404 of the
9 District of Columbia Theft and White Collar Crimes
10 Act of 1982, effective Dec. 1, 1982 (D.C. Law 4-
11 164; D.C. Official Code § 22-2405).
12 (m) An individual who discloses confidential
13 information in violation of subsection (l) of this
230
1 section is guilty of a criminal offense and, upon
2 conviction, shall be fined not more than $1,000 or
3 imprisoned for not more than 180 days, or both.
4 (n) Prosecutions for violations of this section
5 shall be brought in the Court by the Office of the
6 Attorney General.
7 (o) In accordance with the District of Columbia
10 seq.), the Mayor shall issue rules to implement the
11 provisions of this section. The rules shall include:
12 (1) Requirements and procedures for the
13 DDA, providers, and the advocate program to check
231
1 registries of substantiated abuse and neglect
2 maintained by one or more states;
3 (2) A timeline for the implementation of
4 this section as it applies to current employees and
5 volunteers of the DDA and providers on the
6 effective date of this act;
7 (3) The location of the office in which
8 applications for criminal background checks are to
9 be made;
10 (4) Procedures for a job applicant, volunteer
11 applicant, employee, or volunteer to challenge
12 allegations that he or she committed a proscribed
13 offense; and
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1 (5) A description of the corrective or
2 adverse actions that may be taken against any
3 provider that, or any employee of the DDA or a
4 provider who, is found to have violated the
5 provisions of this section.
6 Sec. 126. Registry of former employees
7 terminated because of substantiated acts of abuse or
8 neglect and convictions.
9 (a) The Mayor, or his designee in accordance
10 with section 106(c2) of the Department on Disability
11 Services Establishment Act of 2006, effective March
13 761.06(c2)), shall enter into interstate agreements or
233
1 compacts to permit the DDA, providers, and the
2 advocate program established by section 107
3 (“advocate program”) to check the names of job
4 applicants, volunteer applicants, employees and
5 volunteers against registries maintained by states of
6 individuals who have been terminated or separated
7 from employment as a result of substantiated abuse
8 or neglect.
9 (b) The DDA shall establish and maintain a
10 registry of individuals who have been terminated or
11 separated from employment by the DDA, a provider,
12 and the advocate program as a result of abuse or
13 neglect substantiated by the DDS or the APS. The
234
1 registry may include individuals who have been
2 terminated or separated from employment by the
3 DDA, a provider, and the advocate program as a
4 result of a criminal conviction of or nolo contendere
5 plea to abuse or neglect. The DDA shall, for the
6 purposes of maintaining the registry, be capable of
7 responding to inquiries in accordance with
8 subsection (c) of this section as to whether an
9 individual has been terminated or separated from
11 neglect, or a criminal conviction for or nolo
12 contendere plea to abuse or neglect. Such capability
235
1 may include response by telephone voice mail or
2 other automated response for initial inquiries.
3 (c) The registry established and maintained by
4 the DDA shall include:
5 (1) The names, addresses, and social
6 security numbers or alien identification numbers of
7 those individuals terminated or separated from
9 neglect;
10 (2) The date of termination or separation;
11 (3) The type of abuse or neglect;
12 (4) The type of criminal charge or nolo
13 contendere plea, if any; and
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1 (5) The name of any employer or authorized
2 protective services agency requesting information
3 from the registry, the reason for the request, and the
4 date of the request.
5 (d) The DDA shall make information in the
6 registry available only to:
7 (1) Authorized protective services agencies,
8 for the purpose of protective service determinations;
9 (2) Providers who employ individuals to
10 provide supports and services to persons with
11 developmental disabilities;
12 (3) The advocate program; and
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1 (4) Private persons who are seeking to hire
2 a self-employed health caregiver.
3 (e) The DDA shall limit responses to requests
4 for identifying information from the registry
5 established by this section to:
6 (1) Identification of the individual
7 terminated or separated from employment for
8 substantiated abuse or neglect or a criminal
9 conviction for or a nolo contendere plea to abuse or
10 neglect; and
11 (2) The type of abuse or neglect and
12 whether the abuse or neglect was substantiated or
238
1 resulted in a criminal conviction, or plea of nolo
2 contendere.
3 (f) Not later than 5 business days following
4 receipt of written notification by the DDA or the
5 APS of the substantiation of, criminal conviction for,
6 or plea of nolo contendere to abuse or neglect by an
7 employee who has been terminated or separated
8 from employment for such abuse or neglect, an
9 employer shall submit to the DDA the name of such
10 employee and such other information as the DDA
11 may request. Upon receipt of notification of a
12 termination or separation due to substantiated abuse
13 or neglect, the DDA shall conduct a hearing in
239
1 accordance with § 2-509. The DDA shall not place
2 the name of an individual terminated due to
3 substantiated abuse or neglect on the registry until
4 the DDA has completed the hearing and the hearing
5 has resulted in a decision to place the individual’s
6 name on the registry.
7 (g) The DDA shall remove an individual’s
8 name from the registry if an arbitration or a legal
9 proceeding results in a finding that the individual
10 was unfairly terminated from employment or the
11 criminal conviction was overturned.
12 (h) (1) No employer shall be liable in any civil
13 action for damages brought by an employee or a job
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1 applicant whose name appears on the registry
2 established by this section arising out of the conduct
3 of the employer in:
4 (A) Making any report in good faith
5 pursuant to subsection (e) of this section;
6 (B) Testifying under oath in any
7 administrative or judicial proceeding arising from
8 such report;
9 (C) Refusing to hire or to retain any
10 individual whose name appears on the registry
11 established by this section, or
12 (D) Taking any other action to conform
13 to the requirements of this section.
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1 (2) The immunity provided in this
2 subsection shall not apply to gross negligence or to
3 wilful or wanton misconduct.
4 Sec. 127. Services for persons found
5 incompetent in a criminal case.
6 (a) For a person 14 years of age or older found
7 incompetent in a criminal case as a result of
8 intellectual disability, the District may file a written
9 petition with the Court for a civil commitment of the
10 person to the care of the DDS. The District shall
11 have no more than 30 days from the date on which
12 the Court finds that the person is incompetent and
13 not likely to gain competence in the foreseeable
242
1 future in which to file a petition. For extraordinary
2 cause shown, the Court may extend the period of
3 time within which the petition must be filed.
4 (b) While awaiting the District’s decision
5 pursuant to subsection (a) of this section and during
6 the pendency of any resultant civil commitment
7 proceedings, the Court may order the person placed
8 with the DDS in a setting that the DDS preliminarily
9 determines can provide supports and services
10 consistent with the person’s needs, and supervision
11 or security sufficient to prevent the person from
12 causing injury to others as a result of his or her
13 intellectual disability.
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1 (c) Proceedings for the civil commitment of a
2 person 14 years of age or older found incompetent in
3 a criminal case pursuant to this section shall be
4 commenced by the District filing a written petition
5 with the Court in the manner and form prescribed by
6 the Court. A copy of the petition shall be served on
7 the person, the person’s counsel, the person’s
8 guardian, and the person’s advocate.
9 (d) Upon the filing of the petition, the Court
10 shall promptly conduct a status hearing in
11 accordance with the procedures set forth in this
12 section.
244
1 (e) Respondents shall be represented by counsel
2 in any proceeding before the Court, and shall be so
3 informed by the Court. If a person requests the
4 appointment of counsel or if a respondent fails or
5 refuses to obtain counsel, the Court shall appoint
6 counsel to represent the person or respondent.
7 Whenever possible, counsel shall be appointed who
8 has had experience working with persons with
9 intellectual disability. Counsel appointed to
10 represent respondents and persons who are unable to
11 pay for such counsel, shall be awarded compensation
12 by the Court for his or her services in an amount
13 determined by the Court to be fair and reasonable.
245
1 (f) At least 10 days prior to the hearing the DDS
2 shall submit to the Court a written report based on a
3 comprehensive screening which has been performed
4 in accordance with section 106(e) within the 6
5 months prior to the hearing, and a copy of an ISP
6 which has been prepared within 30 days of the filing
7 of the petition. If a petition filed in accordance with
8 subsection (a) of this section is not accompanied by
9 such documents, the Court shall immediately order
10 that a comprehensive screening be conducted, and an
11 ISP and a report be written. The written report shall
12 indicate:
246
1 (1) Whether or to what degree the person or
2 respondent has intellectual disability;
3 (2) What supports and services the person
4 needs; and
5 (3) The record of supports and services
6 provided to the person, if any.
7 (g) The DDA shall provide a copy of the written
8 report, the comprehensive screening, and the ISP to
9 the person or respondent and his or her counsel at
10 least 10 days prior to the hearing. If the petition was
11 accompanied by a written report, comprehensive
12 screening, or ISP, the DDS shall provide copies of
247
1 such documents to the respondent and his or her
2 counsel within 3 days of the filing of the petition.
3 (h) If the respondent demonstrates that a
4 comprehensive screening of a person failed to
5 comply substantially with accepted professional
6 standards and that sound professional judgment was
7 not exercised in the performance of the evaluation,
8 the Court, upon a motion of the respondent, may
9 order an independent comprehensive screening of
10 the person at the District’s expense if the person is
11 unable to pay.
12 (i) Except as provided in subsection (j) of this
13 section, hearings shall be conducted in as informal a
248
1 manner as may be consistent with orderly procedure.
2 The presence of the respondent may be waived only
3 if the Court finds that the respondent has knowingly
4 and voluntarily waived his or her right to be present,
5 or if the Court determines that the respondent is
6 unable to be present by virtue of his or her disability.
7 (j) A person may demand a jury trial, and shall
8 be so informed of this right. The demand shall be
9 made at the status hearing. If a timely demand for
10 jury trial is not made, the Court shall serve as the
11 factfinder at the hearing. A hearing by the Court or
12 jury shall be accorded with all reasonable speed.
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1 (k) The person shall have the right to be present
2 during the trial or hearing and to testify, but shall not
3 be compelled to testify, and shall be so advised by
4 the Court. The person shall have the right to be
5 represented by counsel, retained or appointed by the
6 Court, in any hearing or trial, and shall be so
7 informed by the Court of this right. The person shall
8 have the right to call witnesses and present evidence,
9 and to cross-examine opposing witnesses.
10 (l) If the Court or jury finds that the person does
11 not have intellectual disability or that the person is
12 not likely to cause injury to others as a result of the
13 person’s intellectual disability if allowed to remain
250
1 at liberty, the Court shall dismiss the petition. If the
2 Court or jury finds that the person has intellectual
3 disability and is likely to cause injury to others as a
4 result of the person’s intellectual disability if
5 allowed to remain at liberty, the Court shall order
6 civil commitment to the care of the DDS for
7 supports and services that are least restrictive to the
8 person’s liberty while preventing the person from
9 causing injury to others as a result of the person’s
10 intellectual disability.
11 (m) The District shall present clear and
12 convincing evidence that shows that the respondent
251
1 is likely to cause injury to others as a result of
2 intellectual disability if allowed to remain at liberty.
3 (n) Hearings shall be closed to the public unless
4 the person, or his or her counsel, requests that a
5 hearing be open to the public.
6 (o) Any civil commitment order of the Court
7 may be appealed in a like manner as other civil
8 actions.
9 (p) Within 10 business of the civil commitment
10 of a person to the care of the DDS, the Court shall
11 appoint a qualified advocate selected from a list of
12 such advocates it maintains and shall notify the
13 person, the parent of a minor, and the person’s
252
1 guardian of the appointment and the person’s right to
2 reject the services of the advocate. The services of
3 the advocate shall be delivered in accordance with
4 the advocacy provisions of section 128.
5 (q) (1) The DDS may transfer a person who has
6 been civilly committed to the care of the DDS from
7 one residential setting to another if the DDS
8 determines that it would be beneficial and consistent
9 with the needs of the person to do so. By no later
10 than 30 days before the transfer date, the DDS shall
11 notify the person, the person’s counsel, the person’s
12 advocate, and the Court of the proposed transfer. A
13 Court hearing shall be held only if the person, the
253
1 person’s counsel, or an individual acting on behalf
2 of the person requests a hearing by petitioning the
3 Court in writing within 10 days of being notified by
4 the DDS. The Court shall hold the hearing promptly
5 following the request for the hearing. In deciding
6 whether to authorize the transfer, the Court shall:
7 (A) Consider whether the proposed
8 residence can provide the necessary supports and
9 services and whether it would be the most integrated
10 setting for providing such supports and services;
11 (B) Consider whether the proposed
12 residence can provide sufficient supervision or
13 security to prevent the person from causing injury to
254
1 others as a result of the person’s intellectual
2 disability; and
3 (C) Give due consideration to the
4 relationship of the person to his or her family,
5 guardian, or friends so as to maintain relationships
6 and encourage interaction beneficial to the
7 relationships.
8 (2) Nothing in this subsection shall be
9 construed to prohibit transfer of a person to a health
10 care facility without prior notice in an emergency
11 situation when the life of the person is in danger. In
12 such circumstances, consent of the person, or parent
13 or guardian who sought the commitment shall be
255
1 obtained prior to the transfer. In the event the person
2 cannot consent and there is no individual who can be
3 reasonably contacted, such transfer may be made
4 upon the authorization of the DDS, with notice
5 promptly given to the parent or guardian. Consent of
6 the person, parent, or guardian is not required if the
7 District sought commitment. The parent, guardian,
8 counsel for the person, and advocate shall be
9 notified promptly of the transfer.
10 (r) Any decision of the Court ordering civil
11 commitment of a person shall be reviewed in a court
12 hearing annually. The person shall not be discharged
13 if the Court finds that the person is likely to cause
256
1 injury to others as a result of his or her intellectual
2 disability if allowed to regain his or her liberty.
3 Notice of a proposed discharge shall be served on
4 the person, the person’s guardian, the person’s
5 counsel, the person’s advocate, and the District at
6 least 30 days prior to the proposed discharge. If the
7 person, the person’s guardian, the person’s counsel,
8 the person’s advocate, or the District objects to the
9 discharge, he or she, or the District, may file a
10 petition with the Court requesting a hearing in
11 accordance with the procedures set forth in this
12 section. Any objecting party shall file the petition
13 requesting a hearing with the Court within 10 days
257
1 of receiving the notice. The hearing, if one is
2 requested, shall be held on or before the discharge
3 date. The person shall not be discharged prior to the
4 hearing.
5 (s) If a person is discharged in accordance with
6 the provisions of subsection (r) of this section but
7 continues to evidence the need for supports and
8 services, it shall be the responsibility of the DDS to
9 arrange for suitable services for the person.
10 (t) Costs and expenses of all proceedings held
11 under this section shall be paid as follows:
12 (1) To expert witnesses designated by the
13 Court, an amount determined by the Court;
258
1 (2) To attorneys appointed under this
2 section, fees as authorized under the Criminal Justice
3 Act (§ 11-2601 et seq.);
4 (3) To other witnesses, the same fees and
5 mileage as for attendance at Court to be paid upon
6 the approval of the Court.
7 (u) Nothing in this section is intended to abridge
8 the rights of persons civilly committed to the care of
9 the DDS by order of the Court in a criminal
10 proceeding. No person civilly committed to the care
11 of the DDS in accordance with this section shall be
12 denied supports and services suited to the person’s
13 needs. The DDS shall provide a person who has
259
1 been civilly committed with supports and services
2 that will maximize the person’s abilities, enhance the
3 person’s ability to cope with the person’s
4 environment, and create a reasonable opportunity for
5 progress toward the goal of independent living. The
6 DDS shall provide a written certification to the
7 Court, before civil commitment to the DDS is
8 ordered, that the supports and services indicated by
9 the person’s ISP will be implemented.
10 (v) If a person is civilly committed by the Court
11 to the care of the DDS or is committed by the Court
12 to the DMH pursuant to subchapter IV of Chapter 5
13 of Title 21, or if a person is temporarily placed with
260
1 the DDS pursuant to subsection (b) of this section
2 during the pendency of civil commitment
3 proceedings, and the DDS or the DMH has reason to
4 believe that the committed person or the person
5 temporarily placed with the DDS has been dually
6 diagnosed with both mental illness and intellectual
7 disability or developmental disability, the DDS and
8 the DMH shall collaborate in assessing the person
9 and shall jointly provide appropriate supports and
10 services for the person.
11 Sec. 128. Court-appointed advocates for
12 persons found incompetent in a criminal case.
261
1 (a) Persons with intellectual disability whose
2 civil commitment is sought under section 127 shall
3 have the assistance of an advocate in every
4 proceeding and at each stage in such proceedings
5 under section 127; however, a person may
6 knowingly reject the services of an advocate and
7 shall be so advised by the Court. An advocate whose
8 services have been rejected shall not have the rights
9 set forth in subsections (d), (e), (f), and (k) of this
10 section. If a person who has rejected the services of
12 Court shall promptly assign an advocate to the
13 person.
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1 (b) Upon receipt of the petition for civil
2 commitment filed pursuant to section 127 the Court
3 shall appoint a qualified advocate selected from a list
4 of such advocates it maintains.
5 (c) A person may at any time request and
8 request.
9 (d) An advocate shall have the following
10 powers and duties with respect to the person to
11 whom the advocate has been assigned:
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1 (1) To inform the person of the person’s
2 rights under this act and to support the person to
3 exercise his or her rights;
8 methods;
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6 of supports and services;
7 (5) To monitor and report to the Court on
8 implementation of the person’s ISP and related court
9 orders; and
10 (6) If so authorized by the Court, to grant,
11 refuse, or withdraw consent on behalf of an adult
12 person to whom the advocate has been assigned with
13 respect to the provision of any health-care service,
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1 treatment, or procedure, consistent with the
2 provisions of Chapter 22 of Title 21 of the District
3 of Columbia Official Code.
4 (f) Unless a person objects, an advocate shall:
10 ISP, and any petitions and hearings before the Court
11 related to the person’s rights, supports, and services;
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3 advocate has been assigned;
11 (g) All communication between an advocate
12 and the person to whom the advocate has been
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1 assigned shall remain confidential and privileged as
2 if between counsel and client.
3 (h) An advocate shall complete a screening, a
4 criminal background check, and a training course in
5 accordance with standards established by the Court.
6 (i) An advocate shall limit his or her caseload to
7 a size that permits the advocate to fulfill the duties of
8 the advocate established by this section, and to
9 maintain regular and reasonable contact with each
10 person, including a minimum of one visit per month,
11 unless otherwise specified by the Court based on the
12 expressed preferences of the person.
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1 (j) Advocates shall be provided directly by the
2 Court, by a contract with individuals or
3 organizations, or by an agreement with the DDS to
4 provide advocates through the advocate program
5 established by section 107. The Court shall ensure
6 that any contracts and agreements provide that each
7 advocate shall be independent of any public or
8 private agency that provides supports and services
9 pursuant to section 111 or section 112.
10 (k) Advocates shall have supervision and shall
11 be provided with facilities and other support services
12 sufficient to enable them to carry out their duties
13 under this act.
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1 (l) In the development of the advocacy program
2 the Court shall explore and seek out potential
3 sources of funding at the federal and District levels.
4 (m) The Court shall promulgate such rules
5 amplifying and clarifying this section as it deems
6 necessary.
7 Sec. 129. Legislative review and reporting.
8 (a) By January 1 of each year, the Mayor shall
9 submit to the Council a comprehensive report on all
10 activities carried out under this act during the
11 previous fiscal year. The report shall include:
12 (1) A profile of all persons and families
13 served under this act, which shall include monthly
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1 and annual demographic data and a discussion of
2 recent trends and projected changes in the
3 demographic data and the needs and preferences of
4 such persons and families;
5 (2) A narrative description of the activities
6 carried out under each section of this act;
7 (3) Quarterly and annual numbers of
8 persons and families requesting eligibility
9 determinations, aggregate date on the disposition of
10 such eligibility determinations, and quarterly and
11 annual numbers of persons and families receiving
12 each type of support or service;
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1 (4) A plan for how the DDA will comply
2 with sections 115 and 116 during the upcoming
3 fiscal year and the following aggregate statistics
4 with regard to persons receiving supports and
5 services from the DDA during the previous fiscal
6 year:
7 (A) The number of persons who:
8 (i) Have a general guardian, a
9 limited guardian, a health-care guardian, or an
10 emergency guardian as of the end of the prior fiscal
11 year;
12 (ii) At any time during the prior
13 fiscal year, had an emergency guardian authorized to
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1 make health-care decisions or a health-care
2 guardian;
3 (iii) Have executed a durable power
4 of attorney in accordance with D.C. Official Code §
5 21-2205;
6 (iv) Have been offered an
7 opportunity to execute a durable power of attorney
8 pursuant to D.C. Official Code § 21-2205 and
9 declined;
10 (v) Have a person identified as
11 reasonably available, mentally capable, and willing
12 to provide substituted consent pursuant to D.C.
13 Official Code § 21-2210; or
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1 (vi) Lack any available substitute
2 health-care decision-maker;
3 (B) The numbers of persons taking
4 psychotropic medications as of the end of the
5 previous fiscal year, and an assessment of the degree
6 to which health-care decision-making support for the
7 prescription of psychotropic medication may be
8 required for these persons;
9 (C) The number of requests for consent
10 referred to the independent panel authorized in
11 section 116 and an analysis of outcomes, monthly
12 and yearly trends, and requests for review by the
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1 HRAC of decisions made by the independent panel;
2 and
3 (D) The number of petitions filed by the
4 District with the Court for an emergency guardian, a
5 health-care guardian, a general guardian, or a limited
6 guardian and:
7 (i) A profile of the categories of
8 health-care needs and medical treatments that led the
9 District to petition the Court for each type of
10 guardian;
11 (ii) The average time elapsed
12 between the filing of a petition and the appointment
13 of each type of guardian; and
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1 (iii) An analysis of the statistics
2 described in this paragraph, identification of yearly
3 and multiyear trends, and a plan for remedial
4 measures to be taken when the statistics identify
5 process or service deficiencies;
6 (5) (A) The monthly, annual, and year-end
7 number of complaints filed with the problem
8 resolution office established by section 118, and
9 aggregate data on the nature and disposition of the
10 complaints;
11 (B) The monthly, annual and year-end
12 number of appeals of ineligibility filed with the DDS
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1 under section 118, and aggregate data on the
2 disposition of the appeals; and
3 (C) The monthly, annual, and year-end
4 number of complaints brought against the DDS
5 before the Office of Administrative Hearings and the
6 Court, and aggregate data on the nature and
7 disposition of those complaints;
8 (6) A report on the DDA’s quality
9 management improvement system, which presents
10 and analyzes aggregate data that assess the
11 effectiveness of supports and services, quality
12 enhancement activities, and interagency agreements
13 under this act and identifies any need for related
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1 system improvements, targeted monitoring, and
2 enhancements;
3 (7) A discussion of supports and services
4 that are needed but not currently provided and
5 identification of any legislative or regulatory
6 changes which may be required to address unmet
7 service needs;
8 (8) A report card on the DDA’s
9 implementation of the Comprehensive
10 Developmental Disabilities Services Plan;
11 (9) Recommendations for any needed
12 changes to this act; and
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1 (10) Recommendations for any needed
2 revisions to the current fiscal year budget and
3 subsequent fiscal year budget.
4 (b) By no later than 10 years after the effective
5 date of this act, the Mayor shall:
6 (1) Conduct a comprehensive review to
7 determine if the goals and objectives and of this act
8 have been met and to identify any legislative
9 changes needed to improve the effectiveness of this
10 act; and
11 (2) Submit to the Council a report
12 summarizing the results of the review and
13 recommendations for legislative changes, if any.
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1 (c) The DDA shall produce a quarterly report on
2 all substituted consent activities pursuant to section
3 115 and 116 until October 2010. Quarterly reports
4 shall be complete by the 15th day of October,
5 January, April, and July and shall include:
6 (1) Statistics describing:
7 (A) Petitions filed by the District with
8 the Court for an emergency guardian, a health-care
9 guardian, a general guardian, or a limited guardian;
10 (B) The nature of the health-care needs
11 and medical treatments that led the District to file
12 each petition; and
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1 (C) The time elapsed between each
2 filing and the appointment of a guardian; and
3 (2) An analysis of the statistics described in
4 this subsection, and a plan for remedial measures to
5 be taken, when the statistics identify process delays.
6 Sec. 130. Plain language required; plans and
7 reports to be made available to the public.
8 (a) All notices, letters, written information,
9 plans, and reports required under this act shall be
10 written in plain language.
11 (b) The Mayor shall submit all plans and reports
12 required under this act to:
13 (1) The Council;
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1 (2) The protection and advocacy agency;
2 and
3 (3) Any external advocacy agency
4 designated by the DDA.
5 (c) The DDS shall make all plans and reports
6 required under this act available on its website
7 within one business day of publication, and shall
8 provide copies to the public upon request.
9 Sec. 131. Rulemaking.
10 (a) The Director of the DDS, in accordance with
11 the District of Columbia Administrative Procedure
12 Act, approved October 21, 1968 (82 Stat. 1204; D.C.
13 Official Code § 2-501 et seq.), shall have the
282
1 authority to issue rules as necessary to implement
2 the provisions of this act, except that the Mayor shall
3 issue rules to implement the provisions of section
4 125.
5 (b) Initial proposed rulemaking to implement
6 the provisions of this act shall be issued by 6 months
7 after the effective date of this act; however, initial
8 proposed rulemaking for sections 118 and 123 shall
9 be published by 3 months after the effective date of
10 this act.
12 Disabilities Services Task Force.
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1 (a) There is established a Comprehensive
2 Developmental Disabilities Services Task Force
3 (“Task Force”) to develop a comprehensive plan for
4 the District to meet the current and future
5 community living supports and services needs of
6 residents of all ages with developmental disabilities
7 and their families in a manner most likely to
8 promote the findings and achieve the purposes stated
9 in section 102.
10 (b) The Task Force shall be composed of:
11 (1) Fifteen voting members of whom one
12 shall also be a member of the Family Support
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1 Council established by section 113. The 15 voting
2 members shall include:
3 (A) Eight residents with developmental
4 disabilities including persons receiving supports and
5 services from the DDA;
6 (B) Four parents and other family
7 members of residents with developmental
8 disabilities; and
9 (C) Three representatives of community
10 groups or experts; and
11 (2) Non-voting directors of agencies that
12 currently or potentially serve residents with
13 developmental disabilities and their families,
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1 including the CFSA, the DHCF, the DHS, the DMH,
2 the DOH, the Office on Aging, and the ODR.
3 Agency directors or their designees shall attend all
4 regular Task Force meetings.
5 (c) The Director of the DDS shall appoint the
6 15 voting Task Force members by 60 days after the
7 effective date of this act. The Director of the DDS
8 shall solicit nominations from the public for the
9 voting members of the Task Force, and shall publish
10 and widely disseminate a proposed list of voting
11 Task Force members for public comment by 30 days
12 after the effective date of this act. The Director of
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1 the DDS shall endeavor to appoint at least 1 voting
2 member from each Ward of the District.
3 (d) The Task Force shall be co-chaired by the
4 Director of the DDS, a person with a developmental
5 disability, and a family member of a person with a
6 developmental disability. The person and family
7 member shall be selected by the Task Force
8 members.
9 (e) The DDS shall provide staff assistance and
10 support to the Task Force.
11 (f) The Task Force shall take steps to obtain
12 widespread public input which may include
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1 sponsoring public forums, conducting focus groups,
2 and creating committees.
3 (g) The Task Force shall meet at least monthly.
4 Task Force meetings shall be open to the public and
5 shall be widely publicized.
6 (h) The Task Force may enact rules of
7 procedure or bylaws to guide its operation. Task
8 Force rules, bylaws, agendas, minutes, and reports
9 shall be made readily available to the public.
11 Disabilities Services Plan.
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1 (a) The Comprehensive Developmental
2 Disabilities Services Task Force (“Task Force”)
3 shall:
4 (1) By 6 months after the effective date of
5 this act, issue a draft Comprehensive Developmental
6 Disabilities Services Plan;
7 (2) By 9 months after the effective date of
8 this act, present the final Comprehensive
9 Developmental Disabilities Services Plan to the
10 Mayor and Council; and
11 (3) Assist the Director of the DDS in
12 developing regulations to implement the expansions
13 of eligibility, supports, and services recommended
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1 by the Task Force pursuant to subsection (b)(3)(A)
2 of this section.
3 (b) The Task Force shall consider the following
4 goals and policy objectives when developing the
5 Comprehensive Developmental Disabilities Services
6 Plan:
7 (1) The findings, purpose, and objectives
8 stated in section 102;
9 (2) The design, phase in, and delivery of
10 new supports and services to meet the unmet needs
11 of children, youth, and adults with developmental
12 disabilities who prior to the effective date of this act
13 were not eligible for DDA services, including
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1 persons with autism, persons with developmental
2 disabilities living with aging parents, parents with
3 developmental disabilities, and persons with
4 developmental disabilities that are primarily physical
5 in nature;
6 (3) The design, phase in, and delivery of
7 new supports and services to meet the unmet needs
8 of families of children, youth, and adults with
9 developmental disabilities; and
10 (4) The strengthening and expansion of
11 supports and services for persons who were eligible
12 for DDA services prior to the effective date of this
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1 act, including persons who have co-occurring
2 behavioral health needs.
3 (c) The Comprehensive Developmental
4 Disabilities Services Plan shall include:
5 (1) A profile of District residents with
6 developmental disabilities and their families which
7 shall include data on the current and projected
8 prevalence, disability and demographic
9 characteristics, living arrangements, resources, and
10 unmet needs of such residents over the next one
11 year, 5 years, 10 years, and 20 years;
12 (2) A clear and concise description of the
13 successes and challenges faced by the District in
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1 meeting the needs of residents with developmental
2 disabilities and their families; and
3 (3) Recommendations for the District to:
4 (A) Over the 2 years after the effective
5 date of this act, expand eligibility and implement
6 new supports and services for the DDA to meet the
7 unmet needs of residents with the full range of
8 developmental disabilities and their families,
9 including incremental expansions of eligibility
10 between 12 and 24 months after the effective date of
11 this act;
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1 (B) Build the District’s short-term and
2 long-term capacity to meet the needs of residents
3 with developmental disabilities and their families;
4 (C) Meet current and future unmet
5 needs for community supports and services in the
6 most effective, efficient, fair and financially
7 sustainable manner;
8 (D) Ameliorate and eliminate barriers
9 to supports and services;
10 (E) Build on strengths that exist in the
11 system while creating systemic improvements,
12 innovation, coordination, interagency data sharing,
13 and other systemic reforms;
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1 (F) Reduce turnover and increase the
2 qualifications of staff that directly support persons
3 with developmental disabilities, using methods
4 which include certification and improvements to
5 training, educational opportunities, pay, and
6 benefits;
7 (G) Continuously identify and integrate
8 best practices into the system as it evolves;
9 (H) Make maximum use of federal
10 funding streams to fund DDA activities; and
11 (I) Manage waiting lists for DDA
12 supports and services in a way that assures that:
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1 (i) Persons on waiting lists begin to
2 receive supports and services at a reasonable pace
3 that is based on a fair, equitable, and consistent
4 method of adjusting support and service levels based
5 on the intensity and immediacy of the needs of the
6 person, the person’s family, and other relevant
7 circumstances affecting the support of the person;
8 (ii) Persons on waiting lists receive
9 supports and services as resources become available;
10 and
11 (iii) In a transparent manner,
12 subject to the confidentiality requirements of section
13 122, persons and their families are kept up on date
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1 on when they can expect to begin to receive supports
2 and services.
3 (d) Each recommendation identified under
4 subsection (c)(3) shall identify the agency or
5 agencies responsible for implementing the
6 recommendation and discuss the commitments that
7 each agency has made.
8 (e) The Task Force shall widely disseminate the
9 documents required under subsection (a) of this
10 section in a variety of accessible and readily
11 understandable formats. The Task Force shall
12 sponsor public forums and other activities to obtain
13 comment on the draft plan from District residents
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1 with developmental disabilities, their families,
2 community organizations, providers, and the public.
3 (f) In accordance with the District of Columbia
6 seq.), the Director of the DDS may issue regulations
7 and take any other actions necessary to implement
8 the expansions of eligibility, supports, and services
9 recommended by the Task Force pursuant to
10 subparagraph (b)(3)(A) of this section.
11 (g) By 5 years after the Task Force presents the
12 initial Comprehensive Developmental Disabilities
13 Services Plan to the Mayor and Council, and in 5
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1 year increments thereafter, the Director of the DDS
2 shall appoint a new task force to update the
3 Comprehensive Developmental Disabilities Services
4 Plan.
5 Sec. 134. Repeal of Mentally Retarded Citizens
6 Constitutional Rights and Dignity Act.
7 The Mentally Retarded Citizens Constitutional
8 Rights and Dignity Act of 1978, effective March 3,
10 1301.01 et seq.), is repealed. All existing rules shall
11 remain in effect until superseded by rules
12 promulgated under this act.
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1 TITLE II. TRANSITION FROM ADMISSION
2 AND COMMITMENT.
4 This act may be cited as the “Transition from
5 Admission and Commitment Act of 2009”.
6 Sec. 202. Purpose.
7 It is the intent of the Council to:
8 (1) Provide a transition period that:
9 (A) Extends, for 36 months after the
10 effective date of this act, the commitment of all
11 persons who were committed to a facility pursuant to
12 the Mentally Retarded Citizens Constitutional Rights
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2 seq.); and
3 (B) Provides an orderly process to
4 transition, 36 months after the effective date of this
5 act, all persons to the new comprehensive system of
6 rights, supports and services provided under the
7 Developmental Disabilities Rights and Services Act
8 of 2009;
9 (2) Provide a process for the Council to certify
10 that the District has met certain benchmarks as a
11 condition of completing the transition period; and
12 (3) During the transition period, provide
13 persons who were committed to a facility pursuant to
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1 the Mentally Retarded Citizens Constitution Rights
4 seq.), with procedures and rights, including the right
5 to legal representation, a court-appointed advocate,
6 and an annual court review.
7 Sec. 203. Definitions.
8 For purposes of this act:
9 (1) “Admission” means the voluntary entrance
10 by a person who has at least moderate intellectual
11 disability into an institution or residential facility.
12 (2) “Best interests” means promoting personal
13 well-being by assessing:
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1 (A) The reason for the proposed action, its
2 risks and benefits, and any alternatives considered
3 and rejected; and
4 (B) The least intrusive, least restrictive, and
5 most normalizing course of action possible to
6 provide for the needs of the person.
7 (3) “Commitment” means the placement with
8 the DDS, pursuant to a court order, of a person who
9 has at least moderate intellectual disability without
10 the consent of the person; except it shall not include
11 placement for respite services.
12 (4) “Competent” means to have the mental
13 capability to appreciate the nature and implications
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1 of a decision, choose between or among alternatives
2 presented, and communicate the choice in an
3 unambiguous manner.
4 (5) “Court” means the Superior Court of the
5 District of Columbia.
6 (6) “DDS” means the Department on Disability
7 Services established by the Department on Disability
10 761.03).
11 (7) “DMH” means the Department of Mental
12 Health established by the Department of Mental
13 Health Establishment Amendment Act of 2001,
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1 effective December 18, 2001 (D.C. Law 14-56; D.C.
3 (8) “Employee” means an individual receiving a
4 salary from the District government, the Superior
5 Court, or the or the advocate program established by
6 section 107 of the Developmental Disabilities Rights
7 and Services Act of 2009.
8 (9) “Facility” means a public or private
9 residence, or part thereof, which is licensed by the
10 District as a skilled or intermediate care facility or a
11 community residential facility (as defined in D.C.
12 Regulation 74-15, as amended) and also includes
13 any supervised group residence for persons with
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1 intellectual disability under 18 years of age. For
2 persons committed the term “facility” may include a
3 physically secure facility or a staff-secure facility,
4 within or without the District of Columbia. The term
5 “facility” does not include a jail, prison, other place
6 of confinement for persons who are awaiting trial or
7 who have been found guilty of a criminal offense, or
8 a hospital for persons with mental illness within the
9 meaning of § 24-501.
10 (10) “Family” means:
11 (A) A group of individuals that:
12 (1) Is related by blood, marriage,
13 domestic partnership, adoption, or legal custody; or
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1 (2) Considers themselves a family
2 based upon bonds of affection, which, for the
3 purposes of this act, means enduring ties that do not
4 solely depend upon the existence of an economic
5 relationship; or
6 (B) Any other family unit as the DDS may
7 define in rules.
8 (11) “Individual support plan” or “ISP” means a
9 document prepared pursuant to section 109 of the
10 Developmental Disabilities Services and Rights Act
11 of 2009 that identifies and authorizes the supports
12 and services to comprehensively meet the person’s
13 assessed needs in accordance with the person’s
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1 expressed preferences, goals, and decisions
2 concerning his or her life in the community.
3 (12) “Intellectual disability” or “persons with
4 intellectual disability” means a substantial limitation
5 in capacity that manifests before 18 years of age and
6 is characterized by significantly subaverage
7 intellectual functioning, existing concurrently with 2
8 or more significant limitations in adaptive
9 functioning.
10 (13) “Most integrated setting” means a setting
11 that enables persons with disabilities to interact with
12 persons without disabilities to the fullest extent
13 possible.
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1 (14) “Protection and advocacy agency” means
2 the designated state protection and advocacy agency
3 for the District established pursuant to the
4 Developmental Disabilities Assistance and Bill of
5 Rights Act of 2000, approved October 30, 2000 (114
6 Stat. 1712; 42 U.S.C. § 15041 et seq.).
7 (15) “Provider” means an individual or entity
8 that:
9 (A) Is duly licensed or certified to provide
10 supports and services; or
11 (B) Has entered into an agreement with the
12 DDA to provide supports and services.
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1 (16) “Respite services” means temporary
2 supports and services provided to a person, upon
3 application of the person, the person’s parent, the
4 person’s guardian, or a family member of the person,
5 for the temporary relief of such parent, guardian, or
6 family member, who normally provides for supports
7 and services for the person or for the temporary
8 relief of the person.
9 (17) “Resident of the District of Columbia”
10 means a person who maintains his or her principal
11 place of abode in the District, including a person
12 who would be a resident of the District of Columbia
13 if the person had not been placed in an out-of-state
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1 setting by the District. A person with a
2 developmental disability who is under 21 years of
3 age shall be deemed to be a resident of the District
4 of Columbia if the custodial parent of the person is a
5 resident of the District of Columbia
6 (18) “Respondent” means the person whose
7 continued commitment is being sought in any
8 proceeding under this act.
9 (19) “Supports and services” means all supports
10 and services provided, funded, regulated, or
11 coordinated by the DDA pursuant to the
13 of 2009 for the purpose of meeting the needs of
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2 families.
3 (20) “Transition period” means a time of no less
4 than 36 months after the effective date of this act
5 during which persons who were committed to a
6 facility pursuant to section 304(b) or section 306 of
7 the Mentally Retarded Citizens Constitutional Rights
9 (D.C. Law 2-137; D.C. Official Code §§ 7-
10 1303.04(b) and 7-1303.06) shall be committed to the
11 care of the DDS.
12 Sec. 204. Transition period.
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1 After the effective date of this act, a person who
2 was committed to a facility pursuant to section
3 304(b) or section 306 of the Mentally Retarded
6 D.C. Official Code §§ 7-1303.04(b) and 7-1303.06)
7 shall be considered committed to the care of the
8 DDS until:
9 (1) The completion of the transition period
10 pursuant to section 207; or
11 (2) The termination of the person’s commitment
12 pursuant to section 211 or 212.
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1 Sec. 205. New admission and commitment
2 prohibited during transition period.
3 (a) After the effective date of this act, no person
4 shall be newly admitted or committed to a facility
5 pursuant to the admission and commitment
6 processes and procedures established by titles III and
7 IV of the Mentally Retarded Citizens Constitutional
8 Rights and Dignity Act of 1978, effective March 3,
10 1301.01 et seq.).
11 (b) Nothing in this section shall be construed to
12 void the commitment of a person who has been
13 found incompetent in a criminal case and has been
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1 committed to the DDS for placement in a facility
2 pursuant to section 406a of the Mentally Retarded
5 D.C. Official Code § 7-1304.06a).
6 Sec. 206. Preparation for completion of
7 transition period.
8 (a) The Court and the District shall work
9 collaboratively to achieve the objectives of this act
10 and shall fully involve the various stakeholders in
11 ongoing planning and implementation activities to
12 prepare for completion of the transition period.
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1 (b) By no later than 24 months after the
2 effective date of this act the District shall:
3 (1) Prepare a work plan for transitioning
4 persons to the new system of advocates and legal
5 services provided under the Developmental
6 Disabilities Rights and Services Act of 2009 which
7 shall include procedures to transfer the advocate
8 program from the Court to the District pursuant to
9 section 215; and
10 (2) Conduct a survey of all persons
11 committed to the care of the DDS pursuant to
12 section 204 to determine the level of need for
13 advocates and legal services for the first 3 fiscal
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1 years after the completion of the transition period
2 pursuant to section 207. To complete the survey, the
3 District shall enter into an agreement, contract, or
4 grant with a qualified private, nonprofit corporation,
5 organization, or consortia of organizations that is
6 independent of any public or private agency that
7 provides advocacy, legal representation, supports, or
8 services pursuant to sections 107, 108, 111, or 112
9 of the Developmental Disabilities Rights and
10 Services Act of 2009.
11 (c) During the transition period:
12 (1) The advocate program established by
13 section 214 shall educate persons about the changes
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1 in rights, supports and services, and commitment
2 under the Developmental Disabilities Reform Act of
3 2009 and the right to request termination of
4 commitment pursuant to section 211;
5 (2) The advocate program established by
6 section 214 shall assist persons to request
7 termination of commitment pursuant to section 211,
8 if so desired by the person; and
9 (3) Counsel appointed by the Court to
10 represent persons shall assist persons to request
11 termination of commitment pursuant to section 211,
12 if so desired by the person.
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1 (d) Nothing in this act shall be construed to void
2 the commitment of a person who has been found
3 incompetent in a criminal case, who is not likely to
4 gain competency in the foreseeable future, and who
5 has been committed to the care of the DDS by the
6 Court pursuant to section 406a of the Mentally
7 Retarded Citizens Constitutional Rights and Dignity
8 Act of 1978, effective March 3, 1979 (D.C. Law 2-
9 137; D.C. Official Code § 7-1304.06a) for placement
10 in a facility consistent with the person’s ISP, the
11 person’s needs, and supervision or security sufficient
12 to prevent the person from causing injury to others
13 as a result of his or her intellectual disability. After
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1 the effective date of this act, processes and
2 procedures for transfer, requests for termination of
3 such persons’ commitment, and periodic review of
4 such persons’ commitment shall be conducted in
5 accordance with section 127 of the Developmental
6 Disabilities Rights and Services Act of 2009.
7 Sec. 207. Completion of transition period.
8 (a) Thirty-four months after the effective date of
9 this act the Mayor shall submit to the Council a plan
10 for completing the transition period and terminating
11 the commitment of all persons who are committed to
12 the care of the DDS pursuant to section 204. In the
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1 plan, the Mayor shall certify that the District has met
2 the following benchmarks:
3 (1) The District has developed and
4 implemented the work plan required by section
5 206(c)(1);
6 (2) The District has completed the survey
7 required by section 206(c)(2);
8 (3) The District has implemented the
9 advocate program pursuant to section 107 of the
11 of 2009 and has provided the program with a
12 funding increase that is sufficient for the program
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1 meet the increase in need for advocates identified by
2 the survey completed pursuant to section 206(c)(2);
3 (4) The District has implemented the legal
4 services program pursuant to section 108 of the
6 of 2009 and has provided the program with a
7 funding increase that is sufficient for the program
8 meet the increase in need for legal services identified
9 by the survey completed pursuant to section
10 206(c)(2); and
11 (5) The District has implemented the
12 internal problem resolution system and staffed the
13 problem resolution office pursuant to section 118 of
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1 the Developmental Disabilities Rights and Services
2 Act of 2009.
3 (b) The Council shall hold a public hearing on
4 the plan within 45 days (excluding Saturdays,
5 Sundays, and holidays) after the plan required under
6 subsection (a) of this section is submitted to it by the
7 Mayor.
8 (c) If the Council does not adopt, within 60 days
9 (excluding Saturdays, Sundays, and holidays) after
10 the plan required under subsection (a) of this section
11 is submitted to it by the Mayor, a resolution
12 disapproving such plan, the commitment of all
13 persons under this act shall terminate, except for the
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1 commitment of a person found incompetent in a
2 criminal case who is not likely to gain competency
3 in the foreseeable future and who has been
4 committed to the care of the DDS by the Court.
5 (d) If the Council adopts a resolution
6 disapproving the plan required under subsection (a)
7 of this section, the commitment of persons under this
8 act shall continue until all requirements under the
9 plan have been met or the person’s commitment has
10 been terminated pursuant to section 211 or 212. By 6
11 months after the Council adopts the disapproval
12 resolution, the Mayor shall submit to the Council a
13 revised plan certifying that all requirements under
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1 subsection (a) of this section have been met. The
2 Council shall hold a public hearing on the revised
3 plan and may approve a resolution disapproving the
4 revised plan pursuant to subsection (b) and
5 subsection (c) of this section. The Mayor shall
6 continue to revise and submit the plan to the Council
7 every 6 months as necessary for the plan to take
8 effect.
9 (e) The plan required under subsection (a) of
10 this section shall be written in plain language. The
11 DDS shall make the plan available on its website by
12 one business day after the plan is submitted by the
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1 Mayor to the Council, and shall provide copies to
2 the public upon request.
3 Sec. 208. Rights during transition period.
4 (a) No person who is committed to the care of
5 the DDS pursuant to section 204 shall be denied
6 supports and services suited to the person’s needs,
7 regardless of the person’s age or the degree or type
8 of the person’s disability. The DDA shall provide
9 such a person with supports and services that will
10 maximize the person’s human abilities, enhance the
11 person’s ability to cope with the person’s
12 environment, and create a reasonable opportunity for
13 progress toward the goal of independent living.
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1 (b) A determination by the Court that a person
2 age 14 years of age or older is incompetent to refuse
3 commitment shall not be relevant to a determination
4 of the person’s competency with respect to other
5 matters not considered by the Court.
6 (c) Any person who has been committed to the
7 care of the DDS pursuant to section 204 retains all
8 rights not specifically denied him or her under this
9 act, including rights of habeas corpus, and has all
10 rights provided under the Developmental Disabilities
11 Rights and Services Act of 2009.
12 (d) If a person is committed to the care of the
13 DDS pursuant to section 204 or is committed by the
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1 Court to the DMH pursuant to subchapter IV of
2 Chapter 5 of Title 21, and the DDS or the DMH has
3 reason to believe that the committed person or the
4 person temporarily placed with the DDS has been
5 dually diagnosed with both mental illness and
6 intellectual disability, the DDS and the DMH shall
7 collaborate in assessing the person and shall jointly
8 provide appropriate supports and services for the
9 person.
10 Sec. 209. Support planning during transition
11 period.
12 During the transition period, a person who is
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1 section 204 shall have an ISP that is developed and
2 updated pursuant to sections 109 and 110 of the
3 Developmental Disability Rights and Services Act
4 of 2009.
5 Sec. 210. Transfer during transition period.
6 During the transition period, a person who is
8 section 204 may be transferred as follows:
9 (1) The DDS may transfer a person from one
10 residential setting to another if the person consents
11 and if the DDS determines that it would be
12 beneficial and consistent with the support and
13 service needs of the person to do so. By no later than
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1 30 days before the transfer date, the DDS shall
2 notify the person, the person’s counsel, the person’s
3 advocate, if one has been appointed, the person’s
4 parent or guardian who petitioned for the
5 commitment, and the Court. A Court hearing shall
6 be held only if the person or the person’s parent or
7 guardian requests a hearing by petitioning the Court
8 in writing within 10 days of being notified by the
9 DDS. The Court shall hold the hearing promptly
10 following the request for the hearing. In deciding
11 whether to authorize the transfer, the Court shall
12 consider whether the proposed residential setting can
13 provide the necessary supports and services and
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1 whether it would be the most integrated setting for
2 providing such supports and services. Due
3 consideration shall be given to the relationship of the
4 person to his or her family, guardian, or friends so as
5 to maintain relationships and encourage visits
6 beneficial to the relationship.
7 (2) Nothing in this section shall be construed to
8 prohibit transfer of a person to a health care facility
9 without notice in an emergency situation when the
10 life of the person is in danger. In such
11 circumstances, consent of the person, or parent or
12 guardian who sought the commitment shall be
13 obtained prior to the transfer. In the event the person
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1 cannot consent and there is no individual who can be
2 reasonably contacted, such transfer may be made
3 upon the authorization of the DDS, with notice
4 promptly given to the parent or guardian. The parent,
5 guardian, counsel for the person, and advocate shall
6 be notified promptly of the transfer.
7 Sec. 211. Request for termination of
8 commitment during transition period.
9 (a) During the transition period, the Court shall
10 order termination of the commitment of a person
11 who is committed to the care of the DDS pursuant to
12 section 204 if the person, the person’s counsel, the
13 person’s advocate, the parent or guardian who
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1 petitioned for the person’s commitment, or other
2 legal representative requests the person’s release in
3 writing to the Court and the Court determines, based
4 on consultation with the person, the person’s
5 counsel, and the person’s advocate, if one has been
6 appointed, that the person consents to such release.
7 (b) The Court may conduct a hearing in
8 accordance with the procedures set forth in section
9 213 to determine the question of competence. The
10 Court shall order termination of the commitment
11 unless the Court finds the following beyond a
12 reasonable doubt:
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1 (1) The person is a resident of the District
2 of Columbia;
3 (2) The person is incompetent to refuse
4 commitment;
5 (3) Based on the person’s ISP, the person
6 has at least moderate intellectual disability and
7 requires supports and services;
8 (4) The person has benefited from the
9 supports and services;
10 (5) Commitment is necessary in order for
11 the person to receive the supports and services
12 indicated by the person’s ISP; and
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1 (6) The DDS is capable of providing the
2 required supports and services and the supports and
3 services are provided in the most integrated setting.
4 (c) If the Court terminates the commitment of a
5 person in accordance with this section but the person
8 arrange for suitable supports and services for the
9 person.
10 Sec. 212. Annual hearing during transition
11 period.
12 (a) During the transition period, the
13 commitment of a person with pursuant to section
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1 204 shall be reviewed in a Court hearing annually.
2 The Court shall conduct the hearing in accordance
3 with the procedures set forth in section 213. The
4 Court shall order termination of the commitment
5 unless the Court finds the following beyond a
6 reasonable doubt:
7 (1) The person is a resident of the District
8 of Columbia;
9 (2) The person is incompetent to refuse
10 commitment;
11 (3) Based on the person’s ISP, the person
12 has at least moderate intellectual disability and
13 requires supports and services;
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1 (4) The person has benefited from the
2 supports and services;
3 (5) Commitment is necessary in order for
4 the person to receive the supports and services
5 indicated by the person’s ISP; and
6 (6) The DDS is capable of providing the
7 required supports and services and the supports and
8 services are provided in the most integrated setting.
9 (b) If the Court terminates the commitment of a
10 person in accordance with this section but the person
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1 arrange for suitable supports and services for the
2 person.
3 Sec. 213. Hearing procedures during transition
4 period.
5 (a) During the transition period, a request for a
6 hearing under this act shall be commenced by the
7 filing of a written petition with the Court in the
8 manner and form prescribed by the Court. The
9 petition may be filed by the person, the person’s
10 counsel, the person’s advocate, the parent or
11 guardian who petitioned for the person’s
12 commitment, or other legal representative.
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1 (b) Respondents have the right to be represented
2 by counsel, retained or appointed by the Court, in
3 any proceeding held before the Court, and shall be
4 informed by the Court of this right. If a respondent
5 fails or refuses to obtain counsel, the Court shall
6 appoint counsel to represent the respondent.
7 Whenever possible, counsel shall be appointed who
8 has had experience in the intellectual disability area.
9 Counsel appointed to represent respondents shall be
10 awarded compensation by the Court for his or her
11 services in an amount determined by the Court to be
12 fair and reasonable.
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1 (c) Upon notification of a request for a hearing
2 under this act, the DDS shall submit to the Court a
3 copy of the person’s ISP and a record of supports
4 and services. A copy of the ISP and the record of
5 supports and services shall be provided to the
6 person, the person’s counsel, and to the petitioner if
7 other than the person or counsel, at least 10 days
8 prior to the hearing.
9 (d) The Court shall conduct a hearing promptly
10 after filing of the petition pursuant to subsection (a)
11 of this section. Any hearing shall be conducted in as
12 informal a manner as may be consistent with orderly
13 procedure, and shall be closed to the public unless
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1 the respondent, or his or her counsel, requests that a
2 hearing be open to the public. The respondent shall
3 have the right to be present during hearings and to
4 testify, but shall not be compelled to testify, and
5 shall be so advised by the Court. The respondent
6 shall have the right to call witnesses and present
7 evidence, and to cross-examine opposing witnesses.
8 (e) Costs and expenses of all proceedings held
9 under this act shall be paid as follows:
10 (1) To expert witnesses designated by the
11 Court, an amount determined by the Court;
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1 (2) To attorneys appointed under this act,
2 fees as authorized under the Criminal Justice Act (§
3 11-2601 et seq.);
4 (3) To other witnesses, the same fees and
5 mileage as for attendance at Court to be paid upon
6 the approval of the Court.
7 (f) Any commitment order of the Court may be
8 appealed in a like manner as other civil actions.
9 Sec. 214. Court-appointed advocates during
10 transition period.
11 (a) During the transition period, a person who is
13 section 204 shall have the assistance of an advocate
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1 in every proceeding and at each stage in such
2 proceedings under this act; however, a person may
3 knowingly reject the services of an advocate and
4 shall be so advised by the Court. An advocate whose
5 services have been rejected shall not have the rights
6 set forth in subsections (c), (d), (e), and (i) of this
7 section. If a person who has rejected the services of
9 Court shall promptly assign an advocate to the
10 person.
11 (b) A person may at any time request and
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2 request.
3 (c) An advocate shall have the following
4 powers and duties with respect to the person to
5 whom the advocate has been assigned:
6 (1) To inform the person about his or her
7 rights under this act and under the Developmental
8 Disabilities Rights and Services Act of 2009 and to
9 support the person to exercise his or her rights;
10 (2) To educate the person about the changes
11 in rights, supports and services, and commitment
12 under this act and under the Developmental
13 Disabilities Rights and Services Act of 2009, and to
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1 assist the person to request termination of
2 commitment pursuant to section 211, if so desired by
3 the person;
8 methods;
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6 of supports and services;
7 (6) To monitor and report to the Court on
8 implementation of the person’s ISP and related court
9 orders; and
10 (7) If so authorized by the Court, to grant,
11 refuse, or withdraw consent on behalf of the person
12 to whom the advocate has been assigned with
13 respect to the provision of any health-care service,
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1 treatment, or procedure, consistent with the
2 provisions of Chapter 22 of Title 21 of the District
3 of Columbia Official Code.
4 (d) Unless a person objects, an advocate shall:
10 ISP, and any petitions and hearings before the Court
11 related to the person’s rights, supports, and services;
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3 advocate has been assigned;
11 (e) All communication between an advocate and
12 the person to whom the advocate has been assigned
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1 shall remain confidential and privileged as if
2 between counsel and client.
3 (f) An advocate shall complete a screening, a
4 criminal background check, and a training course in
5 accordance with standards established by the Court.
6 (g) An advocate shall limit his or her caseload
7 to a size that permits the advocate to fulfill the duties
8 of the advocate established by this section, and to
9 maintain regular and reasonable contact with each
10 person, including a minimum of one visit per month,
11 unless otherwise specified by the Court based on the
12 expressed preferences of the person.
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1 (h) Advocates shall be provided directly by the
2 Court or by a contract with individuals or
3 organizations; however, the Court shall ensure that
4 contracts and other arrangements for selection and
5 provision of advocates provide that each advocate
6 shall be independent of any public or private agency
7 that provides supports and services pursuant to
8 section 111 or section 112 of the Developmental
9 Disabilities Rights and Services Act of 2009.
10 (i) Advocates shall have supervision and shall
11 be provided with facilities and other support services
12 sufficient to enable them to carry out their duties
13 under this act.
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1 (j) In the development of the advocacy program
2 the Court shall explore and seek out potential
3 sources of funding at the federal and District levels.
4 (k) The Court shall promulgate such rules
5 amplifying and clarifying this section as it deems
6 necessary.
7 Sec. 215. Transfer of functions upon completion
8 of transition period.
9 (a) Upon completion of the transition period
10 pursuant to section 207, all functions and records
11 assigned by the Court to the advocate program
12 established by section 214 shall be transferred to the
13 DDS.
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1 (b) The DDS shall offer to any Court employee
2 who is displaced as a result of the transfer of the
3 advocate program pursuant to subsection (a) of this
4 section a right of first refusal to employment by the
5 DDS in the advocate program established by section
6 107 of the Developmental Disabilities Rights and
7 Services Act of 2009, in a comparable available
8 position for which the employee is qualified, for at
9 least a 6-month period during which the employee
10 shall not be discharged without good cause. If the
11 employee’s performance during the 6-month
12 transition employment period described in this
13 subsection is satisfactory, the DDS shall offer the
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1 employee continued employment in accordance with
2 the personnel authority delegated to the DDS by the
3 Mayor pursuant to section 106(d) of the Department
4 on Disability Services Establishment Act of 2006,
6 Official Code § 7-761.06(d)).
7 (c) Upon completion of the transition period
8 pursuant to section 207, the legal services program
9 established by section 108 of the Developmental
10 Disabilities Rights and Services Act of 2009 may:
11 (1) Employ on a full-time, part-time, or
12 contractual basis an attorney who was formerly
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1 appointed by the Court to represent persons
2 committed to the care of the DDS under this act; and
3 (2) Consider the choices and preferences of
4 the person in appointing counsel to represent the
5 person.
6 Sec. 216. Sunset.
7 This act shall expire 6 months after the
8 completion of the transition period pursuant to
9 section 207.
10 TITLE III. AMENDMENTS TO THE
11 DEPARTMENT ON DISABILITY SERVICES
12 ESTABLISHMENT ACT.
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1 This act may be cited as the “Department on
2 Disability Services Establishment Amendment Act
3 of 2009”.
4 Sec. 302. The Department on Disability
7 761.01 et seq.), is amended as follows:
8 (a) Section 102 (D.C. Official Code § 7-761.02)
9 is amended by inserting a new paragraph (2A) to
10 read as follows:
11 “(2A) “DDA” means the Developmental
12 Disabilities Administration of the DDS.”.
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1 (b) Section 104 (D.C. Official Code § 7-761.04)
2 is amended by inserting a new subsection (c) and (d)
3 to read as follows:
4 “(c) The Department shall at a minimum have
5 the following administrations:
6 “(1) The Developmental Disabilities
7 Administration; and
8 “(2) The Rehabilitation Services
9 Administration.
10 (c) Section 105 (D.C. Official Code § 7-761.05)
11 is amended as follows:
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1 (1) Paragraph (1)(A) is amended to read as
2 follows: “ (1)(A) The Developmental Disabilities
3 Rights and Services Act of 2008.”.
4 (2) Paragraph (2) is amended by adding the
5 following phrase at the end: “and § 32-301 et seq.;”
6 (3) A new paragraph (4A) is inserted to
7 read as follows: “(4A) Identify violations of
8 subsections (c), (d), and (f) of section 104 and
9 violations of section 117(d) of the Developmental
10 Disabilities Rights and Services Act of 2008 and
11 take appropriate enforcement action regarding these
12 violations;”.
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1 (d) Section 106 (D.C. Official Code § 7-761.06)
2 is amended as follows:
3 (1) A new subsection (c1) is inserted to read
4 as follows: “(c1) The Director shall have the
5 authority to implement the Developmental
6 Disabilities Rights and Services Act of 2009,
7 including the authority to make grants and provide
8 one-time cash assistance.”.
9 (2) A new subsection (c2) is inserted to read
10 as follows: “(c2) The Director, by delegation from
11 the Mayor, shall enter into interstate agreements or
12 compacts to permit the DDA and providers to check
13 the names of job applicants, volunteer applicants,
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1 employees and volunteers against registries
2 maintained by states of individuals who have been
3 terminated or separated from employment as a result
4 of substantiated abuse or neglect.
5 (e) A new section 106a is inserted to read as
6 follows:
7 “Sec. 106a. Interagency coordination.
8 “(a) The DDA shall be the point of entry and
9 lead agency for supports and services for persons
10 with developmental disabilities and their families.
11 “(b) To ensure coordination, the DDS shall
12 enter into interagency agreements with at a
13 minimum the Department of Employment Services,
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1 the Department of Mental Health, the Health
2 Regulation and Licensing Administration, the
3 Department of Health Care Finance, the District of
4 Columbia Public Schools, the District of Columbia
5 Public Charter Schools, the Child and Family
6 Services Administration, the Office of Disability
7 Rights, the Office of the State Superintendent of
8 Education, the Office on Aging, and the Department
9 of Youth Rehabilitation Services.
10 “(c) The interagency agreements required under
11 subsection (b) of this section shall:
12 “(1) Promote interagency service needs
13 assessment and planning;
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1 “(2) Promote coordinated service delivery
2 for persons with developmental disabilities and their
3 families;
4 “(3) Clarify the responsibilities for the
5 different agencies providing supports and services to
6 persons with developmental disabilities; and
7 “(4) Enhance the efficiency and
8 effectiveness of expenditure of public funds.
9 “(d) The interagency agreements shall include:
10 “(1) Goals and expected outcomes against
11 which progress will be measured;
12 “(2) Eligible populations;
13 “(3) Covered supports and services;
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1 “(4) Procedures for coordination, including
2 designation of a point person at each agency;
3 “(5) Joint monitoring; and
4 “(6) Data and information sharing.
5 “(e) The interagency agreements may provide
6 for the expenditures of appropriated funds to
7 facilitate coordination between the agencies jointly
8 responsible for providing supports and services to
9 persons with developmental disabilities. These
10 agreements shall not, however, conflict with the
11 DDA’s primary responsibility to persons with
12 developmental disabilities regardless of whether
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1 such persons also have a mental illness or other
2 disability.
3 “(f) The Department of Mental Health
4 (“DMH”) and the DDS shall collaborate in assessing
5 persons dually diagnosed with both a developmental
6 disability and a mental illness and shall jointly
7 provide appropriate supports and services to such
8 persons. The DDS and the DMH shall develop and
9 implement a program that encourages the
10 establishment of sufficient numbers and types of
11 living arrangements as necessary to meet the needs
12 to persons dually diagnosed with both an intellectual
13 and developmental disability and a mental illness.
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1 “(g) The authority for the operation of home and
2 community-based waivers for persons with
3 developmental disabilities, including the
4 certification of waiver providers, shall be transferred
5 from the Department on Health Care Finance to the
6 DDS.
7 “(h) The DDS shall participate in the
8 coordination of transition services for students with
9 developmental disabilities enrolled in the District of
10 Columbia Public Schools and District of Columbia
11 Public Charter Schools by:
12 “(1) Providing the parent or guardian with
13 information about supports and services available
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1 through the DDS and how to request an eligibility
2 determination;
3 “(2) Ensuring that a representative of the
4 DDS is present at Individual Plan Meetings starting
5 at age 14;
6 “(3) Identifying available post-school
7 services, supports, and programs in the District that
8 will ease the transition from school to adult life in
9 the community;
10 “(4) Providing support coordination to
11 facilitate the transition from school to work or other
12 post-school activities and services; and
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1 “(5) Making information, resources, and
2 training available to students, families and
3 educators.”.
4 (f) Section 109 is amended to read as follows:
5 “(a) The Director of the DDS, pursuant to
6 subchapter I of Chapter 5 of Title 2, may issue rules
7 as necessary to implement the provisions of this
8 chapter and of the Developmental Disabilities Rights
9 and Services Act of 2008, except that the Mayor
10 shall issue rules to implement the provisions of
12 and Services Act of 2008.
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1 “(b) Pursuant to Unit A of Chapter 3 of Title 2,
2 the DDS may execute contracts, grants, and other
3 legally binding documents to implement the
4 provisions of this chapter and of the Developmental
5 Disabilities Rights and Services Act of 2008.”.
6 TITLE IV. CONFORMING AMENDMENTS.
7 Sec. 401. Section 2 of the People First
8 Respectful Language Modernization Act of 2006,
9 effective September 29, 2006 (D.C. Law 16-169;
10 D.C. Official Code § 2-632) is amended as follows:
11 (a) Paragraph (a)(1) is amended to read as
12 follows: “Avoid any use of the following terms,
13 except as required by any law or regulation:
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1 “afflicted,” “cripple,” “crippled,” “defective,”
2 “feebleminded,” “handicapped,” “handicap,” “idiot,”
3 “lunatic,” “imbecile,” “insane,” “invalid,”
4 “maimed,” “mental retardation,” “mentally
5 retarded,” “moron,” “retarded,” “suffering,”
6 “wheelchair user,” or “wheelchair bound.”“.
7 (b) A new paragraph (a)(3) is added to read as
8 follows:
9 “(3) Use “intellectual disability” instead of
10 “mental retardation.”“.
11 (c) A new paragraph (a1) is added to read as
12 follows:
13 “(a1) On or after the effective date of this act:
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1 (1) Where the District used the term
2 “mental retardation”, it shall use the term
3 “intellectual disability”;
5 “intermediate care facility for persons with mental
6 retardation”, it shall use the term “intermediate care
7 facility for persons with intellectual disability”;
9 “qualified mental retardation professional”, it shall
10 use the term “qualified intellectual disability
11 professional”; and
12 (4) Where the District used the term “at
13 least moderately mentally retarded” it shall use the
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1 term “at least moderate intellectual disability”.
2 Sec. 402. Section 6 of the Office of
3 Administrative Hearings Establishment Act of 2001,
5 Official Code § 2-1831.03) is amended by adding a
6 new paragraph (8A) to read as follows: “(8A)
7 Department on Disability Services;”.
8 Sec. 403. The Adult Protective Services Act of
9 1984, effective December 7, 1984 (D.C. Law 5-156;
10 D.C. Official Code § 7-1901 et seq.) is amended as
11 follows:
12 (a) Section 2 (D.C. Official Code § 7-1901) is
13 amended as follows:
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1 (1) Add a new paragraph (5A) to read as
2 follows: “(5A) “DDA” means the Department on
4 Administration established by § 7-761.04.”.
5 (2) Add a new paragraph (7A) to read as
6 follows: “(7A) “DDA employee” means a person
7 who is employed on a full-time, part-time, or
8 contractual basis by the DDA.”.
9 (3) Add a new paragraph (7B) to read as
10 follows: “(7B) “DDA provider employee” means a
11 person who is employed on a full-time, part-time, or
12 contractual basis by an individual or entity that: (A)
13 Is duly licensed to provide supports and services
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1 provided, funded, regulated or coordinated by the
2 DDA; or (B) Has entered into an agreement with the
3 DDA to provide supports and services.”.
4 (4) Paragraph (8A) is amended by adding a
5 new sentence at the end as follows: “Incapacity shall
6 not be inferred from the fact that an individual has a
7 disability.”
8 (b) Section 4(a)(1) (D.C. Official Code § 7-
9 1903(a)(1)) is amended by striking the phrase
10 “court-appointed mental retardation advocate” and
11 inserting the phrase “DDA employee, DDA provider
12 employee,” in its place.
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1 (c) Section 5 (D.C. Official Code § 7-1904) is
3 (1) Subsection (a)(1) is amended by adding
4 the following sentence at the end: “The Mayor shall
5 designate the DDA to investigate reports of alleged
7 persons who have been found eligible for DDA
8 supports and services in accordance with this
9 section.”.
10 (2) Subsection (b) is amended by added the
11 following sentence after the second sentence: “If the
12 investigation is being conducted by the DDA
13 pursuant to the Mayor’s designation in subsection
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1 (a)(1) of this section, the investigation shall be
2 terminated if the adult allegedly in need of protective
3 services objects to the investigation and it does not
4 manifestly appear that the objection is prompted by
5 fear or intimidation instilled by another; however, if
6 the suspected abuse, neglect, or exploitation is
7 alleged to have been carried out by a DDA employee
8 or a DDA provider employee the investigation shall
9 proceed.”.
10 (d) Section 6(c-1)(1) (D.C. Official Code § 7-
11 1905(c-1)(1)) is amended by adding the following
12 phrase and sentences at the end: “, only after
13 considering alternative forms of providing protective
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1 services that encourage maximum self-determination
2 and are least restrictive to personal liberty. A
3 petition for appointment of a guardian shall request
4 the form of guardianship that is least restrictive to
5 the incapacitated person in duration and scope,
6 taking into account the incapacitated person’s
7 current mental and adaptive limitations or other
8 conditions warranting the procedure. This subsection
9 does not preclude any other party from petitioning
10 the Court for appointment of a guardian;”.
11 (e) Section 7 (D.C. Official Code § 7-1906) is
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1 (1) Subsection (a) is amended by adding the
2 following sentence after the first sentence: “The
3 Mayor shall designate the DDA to make the request
4 to the Attorney General in relation to persons who
5 have been found eligible for DDA supports and
6 services and for whom the DDA has initiated an
7 investigation in accordance with section 5.”.
8 (2) Subsection (d)(3) is amended by added
9 the following phrase at the end: “, in a form that is
10 least restrictive to the incapacitated person in
11 duration and scope, taking into account the
12 incapacitated person’s current mental and adaptive
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1 limitations or other conditions warranting the
2 procedure.”.
3 Sec. 404. Chapter 20 of Title 21 of the District
4 of Columbia Official Code is amended as follows:
5 (a) Section 21-2002 is amended by striking the
6 phrase “Chapter 5 of Title 21, or the Mentally
7 Retarded Citizens Constitutional Rights and Dignity
8 Act of 1978, effective November 8, 1978 (D.C. Law
9 2-137; D.C. Code, § 7-1301.01 et seq.)” and
10 inserting the phrase “section 124 of the
12 of 2008” in its place.
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1 (b) Section 21-2011(25A) is amended to read as
2 follows: “(25A) “Substituted judgment” means
3 making a decision that conforms as closely as
4 possible with the expressed wishes of the person or
5 with the decision that the person would have made,
6 based upon knowledge of the beliefs, values, and
7 preferences of the person.”.
8 (c) Section 21-2047(c)(4) is amended by
9 striking the phrase “except that a guardian may
10 function as a petitioner for the commitment
11 consistent with the requirements of Chapter 5 of
12 Title 21 or the Mentally Retarded Citizens
13 Constitutional Rights and Dignity Act of 1978,
378
1 effective November 8, 1978 (D.C. Law 2-137; D.C.
2 Code § 7-1301.01 et seq.)”.
3 (d) Section 21-2049(a)(3) is amended by
4 striking the phrase “On petition of the ward or any
5 interested person” and inserting the phrase “On
6 petition of the ward, the Department on Disability
7 Services if the ward is receiving services from such
8 agency, or any interested person” in its place.
9 Sec. 405. The Incompetent Defendants Criminal
10 Commitment Act of 2004, effective May 24, 2005
11 (D.C. Law 15-358; D.C Official Code § 24-531.01
12 et seq.) is amended as follows:
379
1 (a) Section 101 (D.C. Official Code § 24-
2 531.01) is amended as follows:
3 (1) Paragraph (6)(C) is amended to read as
4 follows: “(6)(C) Any physically secure or staff-
5 secure intermediate care facility or community
6 residential facility (as defined in D.C. Regulation
7 74-15, as amended) providing supports and services
8 to persons with intellectual disability, within or
9 without the District, not including a jail, prison,
10 other place of confinement for persons who are
11 awaiting trial or who have been found guilty of a
12 criminal offense, or a hospital for persons with
13 mental illness within the meaning of § 24-501.”.
380
1 (2) Paragraph (7) is amended to read as
2 follows: “(7) “DDS” means the Department on
3 Disability Services.”.
4 (3) Paragraph (10) is amended as follows:
5 (A) Strike the phrase “Mental
6 Retardation and Developmental Disabilities
7 Administration” and insert the word “DDS” in its
8 place.
9 (B) Strike the word “MRDDA” and
10 insert the word “DDS” in its place.
11 (C) Strike the word “habilitation” and
12 insert the phrase “supports and services” in its place.
381
1 (b) Section 102(d) (D.C. Official Code § 24-
2 531.02(d)) is amended to read as follows: “(d)
3 Nothing in this title shall be construed to prevent the
4 District from petitioning the court for involuntary
5 commitment pursuant to section 127 of the
7 of 2009.”.
8 (c) Section 105(a)(3) (D.C. Official Code § 24-
9 531.05(a)(3)) is amended by striking the word
10 “MRDDA” and inserting the word “DDS” in its
11 place.
12 (d) Section 106(c)(4) (D.C. Official Code § 24-
13 531.06(c)(4)) is amended to read as follows: “(c)(4)
382
1 If the court finds the defendant is incompetent
2 pursuant to paragraph (1)(B)(ii) of this subsection,
3 the court shall either order the release of the
4 defendant or, where appropriate, enter an order for
5 treatment pursuant to section 105(a) for up to 30
6 days pending the filing of a petition for commitment
7 pursuant to section 127 of the Developmental
8 Disabilities Rights and Services Act of 2009. The
9 court also may order treatment pursuant to section
10 107(a)(2) for such period as is necessary for the
11 completion of the civil commitment proceeding.”.
12 (e) Section 107 is amended as follows:
383
1 (1) Subsection (a) is amended to read as
2 follows: “(a) Thirty days after the court has ordered
3 extended treatment pursuant to section 106(c)(4), the
4 court shall hold a status hearing to determine
5 whether civil commitment proceedings have been
6 initiated pursuant to D.C. Official Code § 21-541 or
8 and Services Act of 2009.”.
9 (2) Subsection (b)(1) is amended to read as
10 follows: “(b)(1) If the court orders the release of a
11 person in the criminal case or transfer proceeding
12 who has been committed to an inpatient treatment
13 facility, and a petition for civil commitment has been
384
1 filed pursuant to section 127 of the Developmental
2 Disabilities Rights and Services Act of 2009, the
3 court shall remand the person to the inpatient
4 treatment facility and the inpatient treatment facility
5 may detain the person pending a hearing on the
6 petition conducted pursuant to section 127 of the
8 of 2009.”.
9 (3) Subsection (d) is amended to read as
10 follows: “(d) If the court orders the release of a
11 defendant in the criminal case or transfer proceeding
12 who has been committed to an inpatient treatment
13 facility, and a petition for civil commitment has not
385
1 been filed pursuant to D.C. Official Code § 21-541
2 or section 127 of the Developmental Disabilities
3 Rights and Services Act of 2009, the court may stay
4 the defendant’s release for a period not to exceed 48
5 hours and remand the person to Saint Elizabeths
6 Hospital or other inpatient treatment facility for the
7 period of the stay so that the DMH or the DDS, or
8 both, may, where appropriate, file a petition for the
9 defendant’s involuntary commitment to either the
10 DMH or to the DDS, or both.”.
11 Sec. 406. Section 3(b) of the State Education
12 Office Establishment Act of 2000, effective October
13 21, 2000 (D.C. Law 13-176; D.C. Official Code §
386
1 38-2602(3)(b)), is amended by adding a new
2 paragraph (10A) to read as follows: “(10A) Promote
3 coordination between public schools and public
4 charter schools and agencies that provide supports
5 and services for children and youth with
6 disabilities.”.
7 Sec. 407. Subtitle H of the Fiscal Year 2010
8 Budget Support Act of 2009, passed on 3rd reading
9 on July 31, 2009 (2nd engrossed version of Bill 18-
10 203) is deleted in its entirety.
11 TITLE V. FISCAL IMPACT STATEMENT.
12 The Council adopts the fiscal impact statement
13 of the Chief Financial Officer as the fiscal impact
387
1 statement required by section 602(c)(3) of the
2 District of Columbia Home Rule Act, approved
3 December 24, 1973 (87 Stat. 813; D.C. Official
4 Code § 1-206.02(c)(3)).
5 TITLE VI. EFFECTIVE DATE.
6 This act shall take effect following approval by
7 the Mayor (or in the event of veto by the Mayor,
8 action by the Council to override the veto), a 30-day
9 period of Congressional review as provided in
10 section 602(c)(1) of the District of Columbia Home
11 Rule Act, approved December 24, 1973 (87 Stat.
12 813; D.C. Official Code § 1-206.02(c)(1), and
13 publication in the District of Columbia Register.
388

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DDRA, Draft 2 - August 27, 2009

1 Sec. 101. Short title............................................. 17

1 Sec. 120. Initiation of action to compel rights; civil

1 Sec. 133. Comprehensive Developmental

1 Sec. 214. Court-appointed advocates during

1 TITLE V. FISCAL IMPACT STATEMENT. ............. 387

1 duties of support coordinators at the Department

1 Disabilities Administration and to require the

1 the basis of receipt of services under this act and

1 Developmental Disabilities Administration,

1 quarterly reports until October 2010 on all

1 meets certain benchmarks; to prohibit new

1 accordance with Title I; to provide a process for

1 amend the Department on Disability Services

1 previously used the term “mental retardation” it

1 Constitutional Rights and Dignity Act of 1978,

18 THE DISTRICT OF COLUMBIA, That

19 this act may be cited as the “Developmental

20 Disabilities Reform Act of 2009”.

1 TITLE I. DEVELOPMENTAL DISABILITIES

2 RIGHTS AND SERVICES.

3 Sec. 101. Short title.

4 This act may be cited as the “Developmental

5 Disabilities Rights and Services Act of 2009”.

6 Sec. 102. Findings and purpose.

7 (a) The Council finds that:

8 (1) District residents with developmental

9 disabilities have all the civil and legal rights enjoyed

10 by all other residents of the District and the United

12 (2) For 30 years, the Mentally Retarded

13 Citizens Constitutional Rights and Dignity Act of

1 1978, effective March 3, 1979 (D.C. Law 2-137;

2 D.C. Official Code § 7-1301.02 et seq.) has required

3 the voluntary admission or involuntary commitment

4 of persons with developmental disabilities to

5 residential facilities through the Superior Court.

6 However, this process no longer reflects the

7 structure of the District’s service system, the

8 requirements under federal laws and programs, state

9 and national best practices, and contemporary

10 knowledge of the rights, abilities, and preferences of

11 persons with developmental disabilities;

12 (3) All District residents benefit when

13 persons with developmental disabilities live with

1 independence and dignity in the most inclusive and

2 most integrated community setting possible and

3 have the freedom and opportunity to fully participate

4 in the cultural, economic, educational, political, and

5 social fabric of their communities;

6 (4) Residents with developmental

7 disabilities are effective advocates who speak up on

8 their own behalf and should be engaged as active

9 partners by District government, service providers,

10 and community members;

11 (5) Residents with developmental

12 disabilities are best able to determine their own

13 needs and should be afforded all the information,

1 opportunities, support, and reasonable

2 accommodations required to make meaningful

3 choices about where they live, work, and play and,

4 to the greatest extent possible, to control the design

5 and delivery of their services;

6 (6) Residents with developmental