An Act concerning persons with developmental disabilities, supplementing Title 30 of the Revised Statutes, and amending P.L.2008, c.128.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) Sections 1 through 7 of this act shall be known as the "Innovative Services for Persons with Developmental Disabilities Act."

2. (New section) The Legislature finds and declares that:

a. There are approximately 4,000 persons with developmental disabilities on the priority waiting list for residential placements, and that number is growing;

b. There are an additional 2,300 persons with developmental disabilities who are institutionalized in State-operated developmental centers, many of whom are candidates for placement into community residential programs funded by the Department of Human Services;

c. From time to time, shortages also exist in the availability of non-residential services provided to persons with developmental disabilities, and existing methodologies of serving persons with developmental disabilities are unable to produce sufficient services to keep pace with demand;

d. Many persons with developmental disabilities and their family members, guardians, and friends are willing to assist financially with the cost of services, but there are limited opportunities to do so under the methods currently employed by the department, and such persons may be fearful that providing financial assistance toward the cost of services will be used to their detriment;

e. Persons with developmental disabilities should have available to them, commensurate with their needs and abilities, the same housing options that are available to persons who do not have developmental disabilities; however, large congregate facilities, especially those in rural areas that are isolated from the general public and prevent participation in everyday life by persons with developmental disabilities should be avoided;

f. Similarly, facilities located on the grounds of or in a building where inpatient medical treatment or custodial care is offered should be avoided, but innovative service arrangements which use a combination of public and private funds and address barriers to transportation for persons with disabilities should be encouraged;

g. Innovative service arrangements should encourage persons with developmental disabilities to: engage in social interactions with their peers who are not disabled, to the fullest extent possible; engage in social interactions with persons of their own choosing; be active and integrated members of the community; exercise individualized choice as to the type, time, and frequency of participation in community activities; and successfully move from a developmental center or the home of a parent to an independent community setting;

h. Private housing and other service providers are willing to develop innovative approaches to the delivery of services, but opportunities for them to do so must be increased and obstacles must be removed; and

i. Action must be taken to encourage the development and implementation of innovative services for persons with developmental disabilities, and the Legislature, consistent with the public policy of the State, must establish a mechanism to learn about development and implementation efforts as well as the obstacles which may arise from time to time and negatively affect the development and implementation of innovative services, particularly those obstacles that the Legislature may be able to eliminate.

3. (New section) As used in sections 1 through 7 of this act:

"Department" means the Department of Human Services.

"Developmental disability" means developmental disability as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).

"Innovative service arrangement" means residential or day services for persons with developmental disabilities that involve the use of self-directed support services, as defined in section 3 of P.L.2008, c.128 (C.30:6D-12.3), or other arrangements that are materially different or used in materially different ways than the arrangements currently and most commonly used by the Department of Human Services, including, but not limited to, a service arrangement that is:

(1) privately funded, in whole or in part, with assurances from the department to undertake the funding of the service arrangement once State funding is available or when a reasonable amount of funds are legitimately exhausted;

(2) not traditionally used to serve persons with developmental disabilities;

(3) funded, in whole or in part, by other governmental sources not dedicated to serving persons with developmental disabilities exclusively;

(4) designed to attract private funding that can be used to serve persons with developmental disabilities; or

(5) some combination of the above.

4. (New section) a. It is declared to be the public policy of the State to encourage the establishment of innovative service arrangements.

b. The department shall encourage the establishment of innovative service arrangements, and may do so by:

(1) providing grants and other aid, if necessary, to foster the development of innovative service arrangements;

(2) providing technical assistance, if requested, to foster the development of innovative service arrangements;

(3) soliciting proposals from potential providers of innovative service arrangements which use a combination of public and private funding, or exclusively private funding initially, with the assurance of future public funding;

(4) removing obstacles to the development of innovative service arrangements;

(5) creating incentives to attract private funding for innovative service arrangements;

(6) facilitating cooperation among government agencies, as appropriate; and

(7) encouraging the development of opportunities for innovative service arrangements funded by a combination of public and private sources.

5. (New section) To implement the public policy of this State, the department shall facilitate the establishment of a wide variety of innovative services arrangements.

a. (1) The department shall seek funding for innovative service arrangements in any application for federal assistance or reimbursement, through the Medicaid program established pursuant to P.L.1968, c.413 (C.30:4D-1 et seq.) or another applicable program, unless seeking such funding for a particular innovative service arrangement would be:

(a) expressly contrary to a federal requirement for such assistance or reimbursement; or

(b) unsuitable for inclusion in an application for federal assistance or reimbursement.

(2) The inability to include a particular innovative service arrangement in an application for assistance or reimbursement pursuant to this subsection shall not preclude the department from encouraging the development of such an arrangement.

b. The department shall ensure that the establishment of an innovative service arrangement does not unfairly benefit a person with a developmental disability with the financial means to purchase such services, in whole or in part, to the detriment of a person with a developmental disability without such financial means. To avoid such an unfair benefit, the department may:

(1) delay funding for a person with a developmental disability until an opening for services for that person is available on the waiting list for services maintained by the department, in accordance with the department's waiting list procedures provided for by regulation;

(2) encourage the voluntary use of private funds as a means to create additional innovative service arrangements; and

(3) facilitate a donation from a person with a developmental disability or the person's family, guardian, or friends. At the end of the life of a person with a developmental disability, the person's ownership interest or the financial equivalent of the value of such interest in an innovative service arrangement shall become the property of the State or of a nonprofit corporation approved by the department to receive such property.

c. (1) The department shall not require any financial contribution, which is made by a person with a developmental disability or the person's family member, guardian or friend, or through a trust or other similar device to fund an innovative service arrangement while waiting for assistance from the department, to continue beyond the time that the person would otherwise become eligible for assistance from the department, in accordance with the procedures for the waiting list for services maintained by the department, provided for by regulation.

(2) The person with a developmental disability and a legally responsible relative shall remain liable for maintenance in accordance with R.S.30:4-66; however, nothing in this act shall expand any such liability or make a person with a developmental disability, family member, guardian, friend, trust, or other similar device liable to a claim for reimbursement which did not exist prior to the enactment of this act.

d. The department shall ensure that a person with a developmental disability shall not be removed involuntarily from a waiting list for services maintained by the department because of a private placement in an innovative service arrangement.

e. The department shall expeditiously resolve, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as a contested case, a dispute which may arise between a person proposing to establish an innovative service arrangement or a person seeking to use such arrangement, and the department.

6. (New section) One year after the effective date of this act, and annually thereafter, the Commissioner of Human Services shall report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature on the implementation of this act.

7. (New section) Any rules and regulations adopted by the Commissioner of Human Services to effectuate the purposes of this act shall be adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and, at a minimum, shall address:

a. the purposes of this act as delineated in section 2 of this act; and

b. the development of innovative service arrangements in a manner consistent with the purposes of the federal "Developmental Disabilities Assistance and Bill of Rights Act of 2000," Pub. L.106-402, 42 U.S.C.s.15001 et seq. and P.L.2003, c.54, so that persons with developmental disabilities and their families participate in the design of, and have access to: needed community services; individualized supports, including transportation; and other forms of assistance which promote self-determination, independence, productivity, and integration and inclusion in all facets of community life.

8. Section 3 of P.L.2008, c.128 (C.30:6D-12.3) is amended to read as follows:

3. As used in this act:

"Commissioner" means the Commissioner of Human Services.

"Department" means the Department of Human Services.

"Developmental disability" means developmental disability as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).

"Self-directed support services" means an arrangement in which funding is made available by the department, through the Division of Developmental Disabilities or any other division in the department, to a person with a developmental disability or person who has been authorized to serve as a fiduciary of the person with a developmental disability, who is living in his own home, the home of a family member or guardian, or some other similar living environment. The purpose of the arrangement is to support the needs of the person with a developmental disability by allowing the person, or his family or guardian, or both, to determine the nature and scope of services to be provided, in lieu of the department placing the person with a developmental disability in a [residential] program operated by the department directly or by contracting with a [residential] provider of services for persons with developmental disabilities.

"Services" means services as defined in section 3 of P.L.1977, c.82 (C.30:6D-3).

(cf: P.L.2008, c.128, s.3)

9. This act shall take effect on the 180th day after the date of enactment, but the Commissioner of Human Services may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.

STATEMENT

This bill, which is designated the "Innovative Services for Persons with Developmental Disabilities Act," requires the Department of Human Services (DHS) to encourage the establishment of innovative service arrangements for persons with developmental disabilities.

"Innovative service arrangements" is defined in the bill as residential or day services for persons with developmental disabilities that involve the use of self-directed support services (as defined in section 3 of P.L.2008, c.128 (C.30:6D-12.3) or other arrangements that are materially different or used in materially different ways than arrangements currently and most commonly used by DHS. They include arrangements that are: privately funded, in whole or in part, with assurances from DHS to undertake the funding of the arrangement once State funding is available or when a reasonable amount of funds are legitimately exhausted; not traditionally used to serve persons with developmental disabilities; funded, in whole or in part, by other governmental sources not dedicated to serving persons with developmental disabilities exclusively; designed to attract private funding which can be used to serve persons with developmental disabilities; or some combination of the above. The bill requires DHS to facilitate the establishment of a wide variety of innovative service arrangements. Specifically, the bill provides that DHS is to seek funding for innovative service arrangements in any application for federal assistance or reimbursement, through Medicaid or another applicable program, unless seeking such funding for a particular innovative service arrangement would be: expressly contrary to a federal requirement for such assistance or reimbursement; or unsuitable for inclusion in an application for federal assistance or reimbursement.

DHS is also to ensure that the establishment of an innovative service arrangement does not unfairly benefit a person with a developmental disability with the financial means to purchase such services, in whole or in part, to the detriment of a person with a developmental disability without such financial means; and is not to require certain financial contributions, which are made while waiting for assistance from DHS, to continue beyond the time that a person with a developmental disability would otherwise become eligible for assistance from DHS.

The person with a developmental disability and a legally responsible relative would remain liable for maintenance, in accordance with R.S.30:4-66; however, the bill would not expand this liability or make a contributor liable to a claim for reimbursement which did not exist prior to the bill's enactment;

Additionally DHS is to: ensure that a person with a developmental disability is not removed involuntarily from a DHS waiting list for services because of a private placement in an innovative service arrangement; and expeditiously resolve, pursuant to the "Administrative Procedure Act," as a contested case, a dispute which may arise with DHS over the establishment of these arrangements.

The Commissioner of Human Services is required to report to the Governor and the Legislature on the implementation of the provisions of the bill one year after the effective date, and annually thereafter.

Lastly, the bill expands the definition of "self-directed support services" in section 3 of P.L.2008, c.128 (C.30:6D-12.3), to provide that self-directed support service arrangements (in which DHS funding is made available to a person with a developmental disability or another person authorized to serve as the person's fiduciary) may be made in lieu of DHS placing a person with a developmental disability in any DHS program or contracting with any provider, rather than limiting self-directed support arrangements to residential placements or contracts with residential service providers.