6/7/01 1439eba

2001 SESSION

01-0525

01/09

SENATE BILL 150

COMMITTEE: Public Institutions, Health and Human Services

ANALYSIS

This bill deletes references to institutional care and emphasizes the state's commitment to consumer-directed-community-based services for individuals with developmental disabilities.

This bill is a request of the department of health and human services.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

6/7/01 1439eba

01-0525

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

101:1 Definition Changed; Individual Service Agreement. RSA 171-A:2, X is repealed and reenacted to read as follows:

X. "Individual service agreement" means a written document for a client's services and supports which is specifically tailored to meet the needs of each client.

101:2 Definition Changed; Service Delivery System. Amend RSA 171-A:2, XVI to read as follows:

XVI. "Service delivery system" means a comprehensive array of services for the diagnosis, evaluation, habilitation and rehabilitation of developmentally disabled persons, including but not limited to [development centers, work activity programs, community residences, family care, foster care, day care, and residential care and treatment such as provided at Laconia developmental services], service coordination, community living arrangements, employment and day services and supports to families of individuals with developmental disabilities.

101:3 Laconia Developmental Services Deleted. Amend RSA 171-A:4 to read as follows:

171-A:4 State Service Delivery System. The department shall maintain a state service delivery system[, comprised of a substantial number of programs and services, including Laconia developmental services,] for the care, habilitation, rehabilitation, treatment and training of developmentally disabled persons. Such service delivery system shall be under the supervision of the commissioner.

101:4 Voluntary Entry Into Service Delivery System. Amend RSA 171-A:5, I to read as follows:

I. Applications for service shall be made by the developmentally disabled person seeking such service, and all placements shall be voluntary. If the client is under the age of 18, the application for service may be initiated by a parent or legal guardian. If the client is over the age of 18 and has been [adjudicated incompetent] found to be incapacitated by the probate court, the application for service may be initiated by the court-appointed guardian. [If the screening evaluation by the area agency recommends the residential placement of a minor or of a legally incompetent person, the hearing procedures established by the department under RSA 171-A:6 and 10 shall apply.]

101:5 Placement Changed to Services. Amend RSA 171-A:6 to read as follows:

171-A:6 [Placement in] Entry Into the Service Delivery System.

I. A person seeking service shall make application in accordance with rules adopted by the commissioner to the area agency in his or her appropriate geographic region as designated by rule pursuant to RSA 171-A:2, I-b.

II. A comprehensive screening evaluation, coordinated by the staff of the area agency, shall determine the scope of the person's disability and the locus and nature of services to be provided. The commissioner shall adopt rules pursuant to RSA 541-A relative to the evaluation. The initial evaluation shall include, but not be limited to, a physical examination and individual intellectual assessment and functional behavior scales and shall take into account the provisions of and services established under RSA 186-A.

III. A recommendation for [placement] services by the area agency shall utilize the criterion of the least restrictive environment for the client and shall be made to the [program or] service which best meets the needs of the client. Preliminary evaluations shall be completed and preliminary recommendations for [placement] services made within 21 days after application for service.

IV. In an emergency situation and in the discretion of the commissioner, temporary [placement] service arrangements may be made prior to the completion of the screening evaluation.

V. The commissioner shall adopt rules pursuant to RSA 541-A establishing hearing procedures to determine the appropriateness of [placement] a service recommendation which is challenged by the client [or], his or her attorney or family.

101:6 Placement Changed to Services. Amend RSA 171-A:7 to read as follows:

171-A:7 Withdrawal From Service Delivery System. Except for a person admitted involuntarily pursuant to RSA 171-B, a client at any time may seek a change in [placement] services or withdraw entirely from the service delivery system. A parent or legal guardian may seek a change of [placement] services for or withdraw entirely a minor or ward in his or her custody at any time, unless such minor has reached the age of majority [during such placement]. The administrator shall notify the area agency of any such withdrawal and may, if appropriate, indicate in the client's record that such withdrawal was against professional advice.

101:7 Terminology Change. Amend RSA 171-A:8, II - III to read as follows:

II. In every instance of termination, the administrator shall refer the client to the area agency which, in turn, shall recommend an appropriate [placement] service, or be responsible for contacting the client at regular intervals after termination for as long as deemed necessary.

III. Prior to any termination of service, the administrator shall give 30 days' notice to the client, if over 18 years of age, or to the parent or guardian, if the client is a minor or has been [declared mentally incompetent] found to be legally incapacitated. Consent of the parent or guardian is required prior to termination if the client is a minor or has been declared [mentally incompetent] legally incapacitated. Service may be terminated sooner than 30 days with the consent of the client, his or her parent or guardian.

101:8 Placement Changed to Services. Amend the section heading and paragraph I of RSA 171-A:9 to read as follows:

171-A:9 Residential [Placement] Services.

I. The commissioner shall adopt rules pursuant to RSA 541-A relative to clients in residential [placements] services, including but not limited to such matters as restraint and seclusion[, duration of placement and procedures for temporary separations such as home visits].

101:9 Terminology Change. Amend the section heading of RSA 171-A:10 to read as follows:

171-A:10 Residential [Placement] Services; Legal Counsel and Guardianship.

101:10 Guardianship. Amend RSA 171-A:10, II to read as follows:

II. Whenever a client over the age of 18 years is considered incapable of managing his or her own affairs [by an appropriately constituted interdisciplinary body] and is at risk of substantial harm to person or estate as a result, and the [patient] person does not have a legal guardian, the administrator shall take such steps as are appropriate to safeguard the [patient] person as may be consistent with RSA 464-A and 547-B, including the nomination of a guardian when no less restrictive alternative is available. [When guardianship services are appropriate, the administrator shall petition the probate court in either the county of Belknap or the county of Merrimack or the probate court in the resident's home county for the appointment of a guardian. The administrator shall recommend the appointment of a client's parents or guardian while the client is a minor as legal guardian in the petition unless the parents or guardian are incompetent, unable, or unwilling to assume the responsibility. Except for residents of Laconia developmental services, whenever the client is deemed to be indigent by the probate court, court costs and any other costs or fees that are incurred pursuant to any hearing on such a petition, or any reasonable cost incurred by the guardian appointed by the probate court, shall be borne by the county of residence of the client.]

101:11 Period Review Procedures. Amend RSA 171-A:11, I - II to read as follows:

I. The needs and services of every client in the service delivery system shall be subject to a periodic review under the supervision of the administrator, which shall include but not be limited to:

(a) A thorough clinical examination including an annual [physical examination] health assessment;

(b) [A clinical evaluation of the competency of such client] An assessment of the client's capacity to make informed decisions; and

(c) Consideration of less restrictive alternatives for service, particularly for those clients in residential [placements] services.

II. Such periodic review shall take place at least once during the first 6 months of [placement] service and annually thereafter. The administrator shall give written notice to the client and his or her nearest relative or legal guardian at least [one week] 10 days prior to a periodic review. The results of each periodic review shall become part of the client's clinical record, and recommendations resulting from such review shall be shared with the client, and, where appropriate, with his or her guardian, parent or nearest relative.

101:12 Terminology Change. Amend RSA 171-A:12 to read as follows:

171-A:12 Individual Service [Plan] Agreement.

I. There shall be an individual service [plan] agreement for every client in the service delivery system who receives services. [Under the supervision of the administrator, the staff of the program in which a client is placed] A service coordinator designated by the area agency serving the client shall develop a preliminary written individual service [plan] agreement based upon a comprehensive screening evaluation established under RSA 171-A:6 for such client within 14 days after [placement] the initial service planning meeting. The individual service [plan] agreement shall be continually reviewed by the [administrator or his designee] area agency and shall be modified if necessary. The commissioner shall adopt rules pursuant to RSA 541-A relative to the development of such individual service [plans for all levels of mental retardation] agreements.

II. Each individual service [plan] agreement shall include but not be limited to:

(a) A statement of the nature of the specific [limitations] strengths, interests, capacities, disabilities, and specific needs of the client;

(b) A description of intermediate and long-range habilitation and treatment goals chosen by the individual and his or her guardian with a projected timetable for their attainment;

(c) A statement [of an explanation for the plan of habilitation for achieving these intermediate and long-range goals] of specific services to be provided and the amount, frequency, and duration of each service;

(d) Specification of the [professionals and other staff members who are responsible for the particular client's attaining these goals] providers to furnish each service identified in the agreement; and

(e) Criteria for transfer to less restrictive settings for habilitation, including criteria for termination of service and a projected date for termination of service from the [program in which the client is placed] service.

101:13 Placement Changed to Service. Amend RSA 171-A:14, I - IV to read as follows:

I. No person shall be deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or vehicle operator's licenses, to vote, to marry or to make a will solely by reason of his or her developmental disability or of his [placement] or her participation in the service delivery system, nor shall department rules restrict such rights. The client's right to individual dignity shall be respected at all times and upon all occasions.

II. A client in a residential [placement] service shall be provided with stationery and postage in reasonable amounts and shall have free and unrestricted mailing privileges.

III. A client shall have the right to be visited at all reasonable times unless the administrator determines that such a visit would adversely affect the client. Any denial of visiting rights and the reasons for such denial shall be entered in the client's record and may be subject to the review of the human rights committee established under RSA 171-A:17.

IV. A client in a residential [placement] service shall have the right to wear his or her own clothes, to keep and use his or her own personal possessions including toilet articles, to keep and be allowed to spend his or her own money [for canteen or other purchases], to have access to individual storage space for private use, to have reasonable access to telephones to make and receive confidential calls and any other rights specified by rules of the department; provided, however, that any of these rights may be denied for good cause by the administrator or [his] designee. Any denial of these rights and the reasons for such denial shall be entered in the client's record and may be subject to the review of the human rights committee established under RSA 171-A:17.

101:14 Rights of Clients. Amend RSA 171-A:15 to read as follows:

171-A:15 [Posting of Rights] Rights of Clients to be Provided. Written materials describing the rights of clients as set forth in this chapter and in the rules of the department shall be [conspicuously posted in every program within the service delivery system] provided to each client and his or her guardian, if any. Such materials shall be presented in clearly understandable language and form.

101:15 Human Rights Committee. RSA 171-A:17 is repealed and reenacted to read as follows:

171-A:17 Human Rights Committee.

I. The commissioner shall establish, in each area agency, a human rights committee of 5 or more persons. The majority of the members of each human rights committee shall be persons who represent the interests of developmentally disabled clients and who are not employees of the department.

II. The duties of the human rights committee shall include, but not be limited to, the following for each program or service with which the committee is concerned:

(a) Evaluating the treatment and habilitation provided;

(b) Regularly monitoring the implementation of individual service agreements;

(c) Monitoring the use of restrictive or intrusive interventions designed to address challenging behavior;

(d) Fostering the capacity of individuals served by the area agency to exercise more choice and control in their lives; and

(e) Promoting advocacy programs on behalf of the clients.

101:16 Area Agency Responsibilities and Operations. Amend RSA 171-A:18 to read as follows:

171-A:18 Area Agency Responsibilities and Operations.

I. The commissioner may designate by rules adopted pursuant to RSA 541-A for each area one area agency which shall be responsible for administering area-wide programs and services for developmentally disabled persons. Each area agency so designated shall be the primary recipient of funds that may be dispensed by the commissioner for use in establishing, operating or administering such programs and services. The programs and services for which an area agency is responsible include, but are not limited to, diagnosis and evaluation, [case management] service coordination, community living arrangements, [sheltered workshops, work activity programs, day care] employment and day services, and programs designed to enhance personal and social competence.

II. The commissioner may enter into contracts with, make grants to, or otherwise make funds available to each area agency for the provision of programs and services to developmentally disabled persons. Subject to the written approval of the commissioner, an area agency may enter into contracts with individuals or organizations for the expenditure of portions of such funds on programs or services for developmentally disabled persons.

III. Each area board shall appoint an executive director who shall be accountable to the board for administering the area-wide programs and services for developmentally disabled persons. The executive director shall serve at the pleasure of the area board and shall serve as a full-time employee of the area board [unless this full-time requirement has been waived in writing by the commissioner].

IV. The commissioner shall, in accordance with RSA 541-A, adopt rules establishing standards for the provision of services by area agencies to developmentally disabled persons. The commissioner shall further adopt rules establishing standards relating to the professional qualifications of the executive director of the area board and to the size and composition of area boards in order to assure that membership is representative of the area as a whole and reflects the concerns and interests of developmentally disabled persons and their families. The commissioner shall also adopt rules establishing a reapproval process and shall require area agencies to be subject to reapproval every 5 years.

V. With such frequency as may be determined by the commissioner, each area agency shall prepare and submit to the department for approval a plan for provision of programs and services to developmentally disabled persons who live in the area[, who are former residents of the area but are now residing at Laconia developmental services, or who are present residents of Laconia developmental services but are expected to relocate in the area].

VI. A community mental health program established pursuant to RSA [126-B] 135-C may also be designated an area agency by the commissioner, providing that the area agency is in full compliance with the requirements of this chapter and with all standards and rules adopted pursuant thereto.

VII. The department of health and human services shall assume all or any part of the responsibilities provided for in paragraphs I and II at any time during which an area agency is not designated.

101:17 Client and Legal Services Section. Amend the section heading and the introductory paragraph of RSA 171-A:19 to read as follows:

171-A:19 Client and Legal Services Section. A client and legal services section shall be established in the department [of health and human services]. Its functions and responsibilities shall include but not be limited to:

101:18 Repeals. The following are repealed:

I. RSA 171-A:2, XV-a, relative to the definitions of placement.

II. RSA 171-A:2, XV-b, relative to the definition of representative.

III. RSA 171-A:10, III, relative to client placement.

IV. RSA 171-A:16, relative to client employment.

101:19 Effective Date. This act shall take effect 60 days after its passage.

(Approved: June 21, 2001)

(Effective Date: August 20, 2001)