PA 17-96—HB 7192

Human Services Committee

AN ACT CONCERNING A PROTECTION AND ADVOCACY SYSTEM FOR PERSONS WITH DISABILITIES

SUMMARY: PA 16-66 eliminated the Office of Protection and Advocacy (OPA) and the Board of Advocacy and Protection for Persons with Disabilities. It instead established, starting July 1, 2017, a nonprofit entity (Disability Rights Connecticut (DRC), Inc.) to serve as the state's protection and advocacy system and client assistance program for individuals with disabilities. It also transferred OPA's investigatory responsibilities to the Department of Rehabilitation Services.

This act effectuates OPA's elimination by removing numerous statutory references to the office, including provisions concerning, among other things: (1) membership on various councils, committees, and task forces; (2) authority to apply to Superior Court to appoint a receiver for nursing homes or residential facilities for individuals with intellectual disabilities; and (3) joint review and approval, with the state building inspector, of applications to waive certain State Building Code accessibility standards.

Additionally, the act:

1. transfers various responsibilities from OPA to DRC, Inc.;

2. adds the executive director of DRC, Inc., or his or her designee, to the membership of the Long-Term Care Advisory Council, thereby increasing the council's membership to 28;

3. specifies that the Department of Developmental Services (DDS) commissioner, or his designee, may investigate reports of abuse or neglect of individuals ages 18 to 60 with autism spectrum disorder receiving services from the Department of Social Services' (DSS) Division of Autism Spectrum Disorder Services and requires DDS to provide DSS with an evaluation report of such investigations;

4. modifies the circumstances in which information from the DDS abuse and neglect registry may be disclosed to DSS;

5. requires OPA, by June 30, 2017, to transfer closed case files to the Office of Policy and Management (OPM) for retention and destruction and notify former clients affected by such file transfers;

6. requires DRC, Inc. to annually report to the governor on the status of services for individuals with disabilities, DRC, Inc.'s operation, and administrative and legislative recommendations;

7. specifies the confidentiality of certain probate court records regarding petitions to place an individual with intellectual disability with DDS for residential support services, and makes other minor changes;

8. modifies the process for towns to apply to the secretary of the state for a waiver from polling accessibility requirements;

9. requires the state building inspector to post on the Department of Administrative Services website its decision to waive certain State Building Code accessibility requirements; and

10. repeals (a) provisions establishing OPA and the Board of Advocacy and Protection for Persons with Disabilities and (b) an obsolete reporting requirement regarding revisions to State Building Code accessibility standards.

The act also makes various minor, technical, and conforming changes.

EFFECTIVE DATE: July 1, 2017, except that the provisions on the (1) DDS abuse and neglect registry, (2) transfer of closed case files from OPA to OPM, and (3) minor and technical changes regarding the review of DDS clients' residential placements take effect upon passage.

4 — POLLING PLACE ACCESSIBILITY

By law, a town's registrar of voters or legislative body must select polling places that are accessible to individuals with physical disabilities. Under prior law, if no such site was available that could reasonably be made accessible, the registrar or legislative body could file a waiver application with the secretary of the state (SOTS). SOTS then had to refer the application to OPA for review within seven days of receiving it, and OPA had to inform SOTS of its approval or disapproval of the waiver within 30 days after receiving it.

The act instead requires the waiver application to be filed with and approved by the town's building official. The official must then file a copy of an approved application with SOTS. The act requires SOTS, within 30 days after the application is filed, to file a written objection to the waiver if she has reason to believe it should not be granted.

5-8, 17, 21, 32-33, 36 & 37 — TRANSFER OF CERTAIN OPA RESPONSIBILITIES

The act transfers, from OPA to DRC, Inc. various responsibilities, including, among other things:

1. participating on the Advisory Council for Special Education, Children's Behavioral Health Advisory Committee, and Autism Spectrum Disorder Advisory Council;

2. receiving reports from the State Board of Education on the use of restraint or seclusion on special education students;

3. receiving reports from the Department of Mental Health and Addiction Services (DMHAS) on certain client injuries and deaths; and

4. notification of a court petition for limited temporary guardianship of a person with intellectual disability unable to consent to certain medical care.

11-13 — DDS ABUSE AND NEGLECT INVESTIGATIONS

Abuse and Neglect Registry

By law, DDS maintains a registry of the names of any person fired from his or her job because of a substantiated abuse complaint against him or her. These are individuals who were employed by DDS, or an agency, organization, or individual who DDS licenses or funds. By law, the information is available only to certain agencies and employers for specified purposes. Previously, the information was available to DSS's Division of Autism Spectrum Disorder Services for protective services determinations. The act instead makes the information available to DSS for purposes of determining whether a job applicant appears on the registry.

DDS Investigations

By law, the DDS commissioner may investigate reports of abuse or neglect of individuals ages 18 to 60 with autism spectrum disorder receiving services from DSS's Division of Autism Spectrum Disorder Services. The act authorizes the commissioner to designate someone to conduct these investigations and makes related conforming changes.

Upon completing the investigation, existing law requires the DDS commissioner to prepare written findings, including a determination of whether abuse or neglect occurred. The act permits, instead of requires, the report to also include recommendations on whether protective services are needed. Additionally, the act requires DDS to provide the DSS commissioner with an evaluation report of an investigation involving a person who receives division services.

The act also makes related minor, technical, and conforming changes.

15 & 16 — COURT ORDERED DDS PLACEMENTS

By law, any interested party may file a petition with the probate court to place a person with intellectual disability with DDS for placement in the least restrictive, appropriate setting. Under prior law, the petition and related probate court records, except for the name of the respondent's guardian, were sealed and only available to the respondent, his or her counsel or guardian, and DDS. The act additionally makes the records available to the Office of the Probate Court Administrator and other parties to the case and their counsel. Under the act, if the court appoints a legal representative, the names of the representative and the protected person are public.

Under existing law, the court may additionally disclose the records for cause after providing a hearing, with notice of the hearing sent to the respondent, respondent's counsel, and DDS. The act requires the court to also notify the legal representative of the hearing.

By law, once the petition is filed, the court must immediately schedule a hearing, to occur within 30 days, and notify certain parties. The act (1) adds the petitioner to the individuals who must receive notice and (2) allows the court to provide notice at its discretion to any other person with an interest in the respondent, instead of requiring such notice for anyone who has shown such interest.

By law, if the court orders an individual to be placed with DDS, the department must arrange for an interdisciplinary team to evaluate the individual and determine his or her level of need. Prior law required DDS to place the individual on a waiting list for residential support services. The act instead requires DDS to place the individual as soon as possible. Under existing law and the act, if no such placement is available within 60 days, DDS must advise the court and continue to report to the court every 30 days until the placement is made.

The act also makes related minor and technical changes to update statutory terminology.

41 — DRC, INC. ANNUAL REPORT

The act requires DRC, Inc. to annually report to the governor on the status of services for individuals with disabilities, DRC, Inc.'s operation, and administrative and legislative recommendations on protecting the rights and welfare of persons with disabilities living in Connecticut. DRC, Inc. must submit the first report by July 1, 2018 and report by each January 1 thereafter and at any other time the governor requests.

43 — TRANSFER OF OPA CLOSED CASES TO OPM

By June 30, 2017, the act requires OPA to transfer legal title to, and custody of, closed case files to OPM. Under the act, “closed case files” are all files currently in OPA's possession that must be retained after July 1, 2017 as prescribed by the records retention schedule filed with the public records administrator, and that are not:

1. open client files pertaining to OPA's protection and advocacy and client assistance program functions transferring to DRC, Inc.;

2. investigation records transferring to the abuse and investigation division;

3. files related to the Fatality Review Board transferring to DDS; and

4. non-records, such as copies, as defined by the public records administrator.

Compliance with the act's closed case file provisions constitutes an absolute defense in any legal or administrative action resulting from transferring or destroying closed case files.

Notification of Former OPA Clients

The act requires OPA, by June 30, 2017, to provide written notification by first class mail to former clients whose files are being transferred to OPM. The notice must inform the client that:

1. OPA is abolished as of July 1, 2017;

2. the client's files are being transferred to OPM and he or she may contact the office to retrieve them; and

3. if the client chooses not to retrieve the files, they may be retained and destroyed according to the applicable records retention schedule on file with the public records administrator.

Client Confidentiality

The act requires OPM to take appropriate measures to ensure client confidentiality of the files in its custody. Such measures include procedures ensuring that (1) documents in the files are not viewed by non-attorneys and (2) confidential information in the files is not unlawfully disclosed. It allows OPM to use the State Library's records center to store the files, and to enter into a memorandum of understanding with the library outlining the proper handling of the files to ensure client confidentiality.

All files transferred to OPM must be retained and destroyed according to the OPA records retention schedule on file with the public records administrator as of June 30, 2017.