SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 190

55th legislature - STATE OF NEW MEXICO - first session, 2021

 

 

 

 

 

 

 

AN ACT

RELATING TO DISABILITY; AMENDING AND ENACTING SECTIONS OF THE DEVELOPMENTAL DISABILITIES ACT TO MAKE CHANGES TO THE DEVELOPMENTAL DISABILITIES PLANNING COUNCIL MEMBERSHIP, PURPOSE AND DUTIES; RENAMING THE DEVELOPMENTAL DISABILITIES PLANNING COUNCIL AS THE DEVELOPMENTAL DISABILITIES COUNCIL.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 28-16A-1 NMSA 1978 (being Laws 1993, Chapter 50, Section 1) is amended to read:

     "28-16A-1. SHORT TITLE.--[Sections 1 through 18 of this act] Chapter 28, Article 16A NMSA 1978 may be cited as the "Developmental Disabilities Act"."

     SECTION 2. Section 28-16A-2 NMSA 1978 (being Laws 1993, Chapter 50, Section 2) is amended to read:

     "28-16A-2. LEGISLATIVE PURPOSE.--

          A. It is the purpose of the legislature in enacting the Developmental Disabilities Act to promote opportunities for all persons with developmental disabilities to live, work and participate with their peers in New Mexico communities. Priority shall be given to the development and implementation of support and services for persons with developmental disabilities that will enable and encourage them to:

                (1) exert control and choice over their own lives;

                (2) achieve their greatest potential for independent and productive living by participating in inclusive community activities; and

                (3) live in their own homes and apartments or in facilities located within their own communities and in contact with other persons living in their communities.

          B. An additional purpose of the legislature in enacting the Developmental Disabilities Act is to ensure that individuals with developmental disabilities and their families participate in the design of and have access to needed community services, individualized supports and other forms of assistance that promote self-determination, independence, productivity and integration and inclusion in all facets of community life, through culturally competent programs.

          C. The Developmental Disabilities Act authorizes the council to engage in advocacy, capacity building and systemic change activities that:

                (1) are consistent with the purpose described in this section and the policy described in this section; and

                (2) contribute to a coordinated, consumer- and family-centered, consumer- and family-directed comprehensive system that includes needed community services, individualized supports and other forms of assistance that promote self-determination for individuals with developmental disabilities and their families.

          [B.] D. The Developmental Disabilities Act authorizes the department to plan, provide and coordinate support and services to persons with developmental disabilities."

     SECTION 3. Section 28-16A-3 NMSA 1978 (being Laws 1993, Chapter 50, Section 3) is amended to read:

     "28-16A-3. DEFINITIONS.--As used in the Developmental Disabilities Act:

          A. "assessment" means a process for measuring and determining a person's strengths, needs and preferences to determine eligibility for support and services and to develop or modify an individual support and service plan;

B. "case management" means a process that:

                (1) assists a person with a developmental disability to know and understand [his] the person's choices and rights and to obtain support and services that the person is eligible to receive and that [is] are reflected in the individual support and service plan; and

                (2) monitors the provision of support and services received by [the] a person with a developmental disability;

          C. "comprehensive review and analysis" means the comprehensive review and analysis conducted pursuant to Subsection A of Section 28-16A-7 NMSA 1978;

          D. "council" means the developmental disabilities council;

          [C.] E. "department" means the department of health;

          [D.] F. "diagnostic evaluation" means an empirical process that determines if, and to what degree, a person has a developmental deficiency and the type of intervention and services that are needed for the person and that person's family;

          [E.] G. "inclusive" means using the same community resources that are used by and available to all citizens and developing relationships with nonpaid caregivers or recipients of support and services for persons with developmental disabilities;

          [F.] H. "individual support and service plan" means a plan developed by an interdisciplinary team and agreed to by a person with a developmental disability, or by a parent of a minor or a legal guardian, as appropriate, that describes the combination and sequence of special, interdisciplinary or generic care, treatment or other support and services that are needed and desired by a person with a developmental disability;

          [G.] I. "interdisciplinary team" means a group of persons drawn from or representing professions that are relevant to identifying the needs of a person with a developmental disability and designing a program to meet that person's needs. The team shall include the person with a developmental disability, the parent of a minor child or a legal guardian, as appropriate;

           J. "self-determination" means individuals with developmental disabilities who, with appropriate assistance, have:

                (1) the ability and opportunity to communicate and make personal decisions;

                (2) the ability and opportunity to communicate choices and exercise control over the type and intensity of services, supports and other assistance the individuals receive;

                (3) the authority to control resources to obtain needed services, supports and other assistance;

                (4) opportunities to participate in, and contribute to, their communities; and

                (5) support, including financial support, to advocate for themselves and others, to develop leadership skills through training in self-advocacy, to participate in coalitions, to educate policymakers and to play a role in the development of public policies that affect individuals with developmental disabilities; and

          [H.] K. "service provider" means a nonprofit corporation, tribal government or [trival] tribal organization, unit of local government or other organization that has entered into a contract or provider agreement with the department for the purpose of providing developmental disabilities support and services."

     SECTION 4. Section 28-16A-4 NMSA 1978 (being Laws 1993, Chapter 50, Section 4) is amended to read:

     "28-16A-4. DEVELOPMENTAL DISABILITIES [PLANNING] COUNCIL--CREATION--MEMBERSHIP--TERMS.--

          A. The "developmental disabilities [planning] council" is created in accordance with the federal Developmental Disabilities Assistance and Bill of Rights Act. The [developmental disabilities planning] council shall be an adjunct agency as provided in the Executive Reorganization Act.

          B. The [developmental disabilities planning] council shall consist of no fewer than [eighteen] twenty-five members [at least half of whom shall be persons with developmental disabilities or parents, immediate relatives or legal guardians of persons with developmental disabilities]. The [developmental disabilities planning] council shall include:

                (1) members, provided that no member shall be an employee, or someone who manages employees, of a state agency that receives funds to provide developmental disabilities supports and services, comprising at least sixty percent of the council's membership, one-third of whom are individuals with developmental disabilities, one-third of whom are parents, immediate relatives or legal guardians of individuals with developmental disabilities and one-third of whom are a combination of individuals with developmental disabilities, parents or guardians of children with developmental disabilities or immediate relatives or guardians of adults with mentally impairing developmental disabilities who cannot advocate for themselves, including at least one individual who shall be:

                     (a) the immediate relative or guardian of an individual with a developmental disability who resides or previously resided in an institution; or

                     (b) an individual with a developmental disability who resides or previously resided in an institution;

                [(1)] (2) the secretary of health, or [his] the secretary's designee;

                [(2)] (3) the secretary of human services, or [his] the secretary's designee;

                [(3)] (4) the secretary of children, youth and families, or [his] the secretary's designee;

                [(4)] (5) the [director] secretary of [the state agency on aging, or his] aging and long-term services, or the secretary's designee;

                [(5) two directors from the state department of]

                (6) the secretary of public education; [including the vocational rehabilitation division]

                (7) the director of the vocational rehabilitation division of the public education department;

                [(6)] (8) the director of the state protection and advocacy system established pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act;

                [(7) representatives of institutions of post-secondary education;

                (8) representatives of each program established within institutions of post-secondary education pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act and

                (9) representatives of local government

agencies, nongovernment agencies or nonprofit groups concerned with services to persons with developmental disabilities, including a service provider]

                (9) the director of any entity within a state institution of higher education designated as a university center for excellence in developmental disabilities education, research and service; and

                (10) at all times, representatives of local and nongovernmental agencies and private nonprofit groups concerned with services for individuals with developmental disabilities in New Mexico.

          C. The governor shall select the members of the council for appointment pursuant to Paragraphs (1) and (10) of Subsection B of this section after soliciting recommendations from organizations representing a broad range of individuals with developmental disabilities and individuals interested in individuals with developmental disabilities. The council may, at the initiative of the council or at the request of the governor, coordinate council and public input to the governor regarding all recommendations.

          D. The membership of the council shall be geographically representative of the state and reflect the diversity of the state with respect to race and ethnicity.

          [C.] E. Members, except for ex-officio members, shall be appointed by the governor for terms of three years.

          F. The governor shall provide for rotation of the membership of the council. These provisions shall allow members to continue to serve on the council until those members' successors are appointed.

          G. The council shall notify the governor regarding membership requirements of the council and shall notify the governor when vacancies on the council remain unfilled for a significant period of time.

          H. Council members shall recuse themselves from any discussion of grants or contracts for which such members' departments, agencies or programs are grantees, contractors or applicants. The council shall ensure that no council member casts a vote on any matter that would provide direct financial benefit to the member or otherwise give the appearance of a conflict of interest."

     SECTION 5. Section 28-16A-5 NMSA 1978 (being Laws 1993, Chapter 50, Section 5) is amended to read:

     "28-16A-5. POWERS AND DUTIES.--

          A. The [developmental disabilities planning] council shall:

                [(1) act as a planning and coordinating body for persons with developmental disabilities;

                (2)] (1) provide statewide advocacy [systems] for persons with developmental disabilities;

                [(3) work with appropriate state agencies to develop the developmental disabilities three-year plan as required by the federal Developmental Disabilities Assistance and Bill of Rights Act;

                (4) monitor and evaluate the implementation of the developmental disabilities state plan;]

                (2) develop and submit to the federal government the five-year plan for council activities and any amendments to the plan;

                [(5)] (3) to the maximum extent feasible, review and comment on all state plans that relate to programs affecting persons with developmental disabilities;

                [(6)] (4) submit to the secretary of the United States department of health and human services, through the office of the governor, periodic reports that the secretary may request;

                [(7)] (5) advise the governor and the legislature about the needs of persons with developmental disabilities;

                (6) hold all council meetings via video conference; and

                [(8)] (7) carry out any other activities authorized or required by the provisions of the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000.

          B. The [developmental disabilities planning] council is authorized to:

                (1) award grants and enter into contracts to carry out its duties;

                (2) seek funding from sources other than the state;

                (3) create and support regional county or local advisory councils; and

                (4) provide training to persons with developmental disabilities, their families and providers of support and services through traineeships, sponsoring training opportunities and by other means determined appropriate by the [developmental disabilities planning] council."

     SECTION 6. Section 28-16A-6 NMSA 1978 (being Laws 1993, Chapter 50, Section 6) is amended to read:

     "28-16A-6. ELIGIBILITY.--

          A. For purposes of eligibility for support and services [A.], "developmental disability" means a severe chronic disability of [a person that] an individual, which disability:

                (1) is attributable to a mental or physical impairment, including the result from trauma to the brain, or combination of mental and physical impairments;

                (2) is manifested before the person reaches the age of twenty-two years;

                (3) is expected to continue indefinitely;

                (4) results in substantial functional limitations in three or more of the following areas of major life activity:

                     (a) self-care;

                     (b) receptive and expressive language;

                     (c) learning;

                     (d) mobility;

                     (e) self-direction;

                     (f) capacity for independent living; and

                     (g) economic self-sufficiency; and

                (5) reflects the person's need for a combination and sequence of special, interdisciplinary or generic care treatment or other support and services that are of life-long or extended duration and are individually planned and coordinated.

          B. [are children] A child, from birth through two years of age, who [are] is at risk for or [have] who has a developmental [delays] delay as defined by rules of the department [These children are] is eligible for early intervention services [or].

          C. [is a person] An individual who is eligible for developmental disability supports and services based on any previous definition of developmental disability used by the state and [is] was receiving services on [the effective date of the Developmental Disabilities Act] June 15, 1993 shall remain eligible for developmental disability supports and services. However, [children] a child, from birth through age two who [were] is determined to be [a] at risk for or [have] who has a developmental [delays are] delay shall be eligible for early intervention services only, unless [meeting] the child meets the criteria set forth in Subsection A of this section."

     SECTION 7. Section 28-16A-7 NMSA 1978 (being Laws 1993, Chapter 50, Section 7) is amended to read:

     "28-16A-7. [ASSESSMENT OF NEEDS OF PERSONS WITH DEVELOPMENTAL DISABILITIES] COMPREHENSIVE REVIEW AND ANALYSIS.--

          A. [In order to comply with the provisions of 42 U.S.C. Section 6067] The [developmental disabilities planning] council shall conduct a [needs assessment of persons with developmental disabilities to determine] comprehensive review and analysis of the extent to which services, supports and other assistance are available to individuals with developmental disabilities and their families and the extent of unmet need for services, supports and all other assistance for those individuals and their families in the state. The results of the comprehensive review and analysis shall include:

                (1) the number of individuals with developmental disabilities residing in New Mexico;

                (2) the range and degree of severity of [their] the disabilities of individuals with developmental disabilities in New Mexico; and

                [(3) the present placement and support and services being received; and

                (4) the needs for support and services and the

extent that their needs are unserved or underserved]

                (3) such other information and analysis required under federal law.

          B. The findings of the [assessment] comprehensive review and analysis shall be [included in the state plan for developmental disabilities services and support] utilized in the development of the council's five-year plan.

          C. The [assessment shall be repeated] council shall:

                (1) repeat the comprehensive review and analysis at least every [two] five years, with a summary of the findings [distributed]; and

                (2) distribute the comprehensive review and analysis and the summary of findings to relevant organizations, programs and agencies in the state."

     SECTION 8. Section 28-16A-8 NMSA 1978 (being Laws 1993, Chapter 50, Section 8) is amended to read:

     "28-16A-8. [PLANNING FOR] REPORTING ON COMMUNITY SERVICES FOR PERSONS WITH DEVELOPMENTAL DISABILITIES.--[A. The developmental disabilities planning council shall coordinate, review and comment upon plans for services to persons with developmental disabilities developed by all major state agencies providing or funding services to persons with developmental disabilities based, to the greatest extent possible, upon the most recent needs assessment completed pursuant to Section 7 of the Developmental Disabilities Act. B.] The department of health, the human services department, the [state department of] public education department, the vocational rehabilitation division of the [state department of] public education department, the children, youth and families department, the New Mexico school for the blind and visually [handicapped] impaired and the New Mexico school for the deaf shall [each submit a plan for support and services for persons with developmental and other disabilities within a reasonable time to allow for meaningful coordination, review and comment by the developmental disabilities planning council.

          C. Each plan shall define and provide for the support and services that are required within the scope of each respective agency's applicable federal and state laws and regulations. The goal of each plan is to enable persons with developmental disabilities to maximize their potential, live as independently as possible in their own homes and communities and achieve productive lives through involvement in inclusive service settings.] provide to the council, on an annual basis, information and data with respect to the actual or estimated number of individuals with developmental disabilities served by the agency, the type of services provided, any major changes in policies adopted in the previous year or anticipated in the coming year that have had or are expected to have a beneficial or deleterious effect on persons with developmental disabilities and any gaps in eligibility or services that pose a barrier to the provision of services needed by persons with developmental disabilities."

     SECTION 9. Section 28-16A-9 NMSA 1978 (being Laws 1993, Chapter 50, Section 9) is amended to read:

     "28-16A-9. INFORMATION AND REFERRAL SYSTEM--COORDINATION AND CONTINUATION.--In order to coordinate information and referral services and eliminate the duplication of effort, the [developmental disabilities planning] council shall provide information and referral services for persons with disabilities, their families, providers of support and services and local and state agencies, including:

          A. the human services department;

          B. the department of health;

          C. the [state department of] public education department and its vocational rehabilitation division;

          D. the New Mexico school for the deaf;

          E. the New Mexico school for the blind and visually [handicapped] impaired;

          F. the Carrie Tingley crippled children's hospital; and

          G. the children, youth and families department."

     SECTION 10. Section 28-16A-10 NMSA 1978 (being Laws 1993, Chapter 50, Section 10) is amended to read:

     "28-16A-10. DEVELOPMENTAL DISABILITIES [PLANNING]

COUNCIL--STAFF.--The [developmental disabilities planning] council shall employ an executive director, who is the administrative officer of the council. The executive director shall employ other necessary employees pursuant to the provisions of the Personnel Act."

     SECTION 11. Section 28-16A-11 NMSA 1978 (being Laws 1993, Chapter 50, Section 11) is amended to read:

     "28-16A-11. DEVELOPMENTAL DISABILITIES [PLANNING]

COUNCIL--REPORTS.--The [developmental disabilities planning] council shall submit reports on its preceding year's work to the governor and the [legislative] interim legislative health and human services committee by [December] November 1 of each year. The reports shall contain recommendations, if any, for legislation or other appropriate action."

     SECTION 12. Section 28-16A-12 NMSA 1978 (being Laws 1993, Chapter 50, Section 12) is amended to read:

     "28-16A-12. DEVELOPMENTAL DISABILITIES [PLANNING]

COUNCIL--COMPENSATION.--[Developmental disabilities planning] Council members shall be reimbursed as provided in the Per Diem and Mileage Act and the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000. Reasonable accommodations shall be made available to permit full participation in council activities by its members, including personal assistance to members with developmental disabilities and respite care for members that are parents, immediate relatives or legal guardians of persons with developmental disabilities. Other than what is required in the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, council members shall receive no other compensation, perquisite or allowance [shall be received] for their service on the council."

     SECTION 13. Section 28-16A-13 NMSA 1978 (being Laws 1993, Chapter 50, Section 13) is amended to read:

     "28-16A-13. AUTHORIZATION FOR PROVIDING [COMMUNITY-BASED] SUPPORT AND SERVICES FOR PERSONS WITH DEVELOPMENTAL DISABILITIES.--

          A. Subject to the availability of appropriations provided expressly for this purpose, the department may:

                (1) acquire, provide or coordinate support and services for persons with developmental disabilities;

                (2) enter into contracts and provider agreements with agencies and individuals capable of providing support and services to persons with developmental disabilities [that promote the objectives of the department's state plan, prepared pursuant to Section 5 of the Developmental Disabilities Act]; and

                (3) establish advisory councils and task forces as necessary to guide the development and review of support and services to persons with developmental disabilities.

          B. Support and services shall be provided based on individual support and service plans developed by an interdisciplinary team. The team is responsible for collectively evaluating the child's or adult's needs and developing an individual support and service plan to meet the needs.

          C. The department shall:

                (1) solicit the involvement of consumers, providers, parents, professional organizations and other governmental organizations prior to the adoption or revision of any policies or regulations concerning the provision of support, services, standards or funding systems. Participants shall be selected in a manner that reflects geographical, cultural, organizational and professional representation across the state;

                (2) develop policies, procedures, rules and regulations that, to the extent possible, will promote uniformity in reimbursement and quality assurance systems regardless of the source of funding; and

                (3) convene and maintain a family infant toddler inter-agency coordinating council and a statewide adult support and services task force that shall, at a minimum, address quality assurance."

     SECTION 14. Section 28-16A-18 NMSA 1978 (being Laws 1993, Chapter 50, Section 18) is amended to read:

     "28-16A-18. DEVELOPMENTAL DISABILITIES EARLY CHILDHOOD EVALUATION SYSTEM.--The state shall have a timely, comprehensive, multidisciplinary system for evaluating infants, toddlers and preschool-age children suspected of having developmental delays. Diagnostic evaluations for infants and toddlers shall address family service needs and shall include training capabilities to educate community providers and parents in the understanding and application of the evaluations. This diagnostic evaluation system shall be jointly provided through a coordinated system by the children's medical services bureau of the public health division or the developmental disabilities supports division of the department, the university of New Mexico's [developmental disabilities team] center for development and disability and the [state department of] public education department."

     SECTION 15. Section 28-16A-19 NMSA 1978 (being Laws 2003, Chapter 323, Section 1) is amended to read:

     "28-16A-19. INFORMATION AND REFERRAL TASK FORCE CREATION.--There is created an information and referral task force located in the [developmental disabilities planning] council to develop a statewide, comprehensive "211" information and referral plan for use as a telephone dialing code for access to health and human services. The plan shall include a tariff structure based on existing agreements, a common taxonomy of terms, coordination between public and private systems and standardized statewide training and exploration of a centralized information repository. The task force shall include representation from the department of health; the human services department; the children, youth and families department; the [labor] workforce solutions department; the [state agency on] aging and long-term services department; the internet long-term care link program; the governor's [committee on concerns of the handicapped] commission on disability; the New Mexico commission for the blind; the commission for deaf and hard-of-hearing persons; a statewide organization that raises money for health and human service purposes; and other interested parties."

     SECTION 16. A new section of the Developmental Disabilities Act is enacted to read:

     "[NEW MATERIAL] REPORTING--DEPARTMENT OF HEALTH--INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH INTELLECTUAL DISABILITIES--INDEPENDENT REVIEW.--Within thirty days of the date on which reporting pursuant to each review is available, the department shall provide the council with each report issued pursuant to the independent reviews of intermediate care facilities for individuals with intellectual disabilities that are performed pursuant to the requirements of federal law."

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