HB5382eng 94TH GENERAL ASSEMBLY

HB5382 Engrossed LRB094 19398 RSP 55085 b

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Disabilities Services Act of 2003 is amended by changing Sections 5, 10, 15, and 20 and by adding Sections 22, 27, and 28 as follows:

(20 ILCS 2407/5)

Sec. 5. Purpose and scope. It is the purpose of this Act to further create an advisory committee to develop and implement a Disability Services Plan disabilities services implementation plan as provided in Section 20 to ensure compliance by the State of Illinois with the Americans with Disabilities Act and the decision in Olmstead v. L.C., 119 S.Ct. 2176 (1999) and to develop a more comprehensive system of community supports and services that will enable persons with disabilities to transition to the most appropriate integrated setting possible in accordance with their needs, preferences and capacity to be served in that setting. Furthermore, the intent of this Act is to provide a framework for steps to be undertaken by the State of Illinois that will ensure successful implementation of the Olmstead decision. The "Initial Technical Assistance Recommendations Regarding Developing Comprehensive, Effectively Working Plans" issued to states on January 15, 2000 by the United States Department of Health and Human Services shall be considered as one of the key documents to guide the planning and implementation required by this Act. This Act applies to services for persons with disabilities that are provided directly by the State of Illinois or funded in whole or in part by the State of Illinois. In the implementation of this Act or of the Disability Services Plan, and consistent with the Olmstead decision, no person shall be compelled to move from an institutionalized setting to another type of residential setting to another type of residential setting without his or her voluntary informed consent and the voluntary informed consent of his or her guardian (if one exists).

(Source: P.A. 93-638, eff. 12-31-03.)

(20 ILCS 2407/10)

Sec. 10. Application of Act; definitions.

(a) This Act applies to persons with disabilities. The disabilities included are defined for purposes of this Act as follows:

"Disability" means a disability as defined by the Americans with Disabilities Act of 1990 that is attributable to a developmental disability, a mental illness, or a physical disability, or combination of those. "Disability" includes age-related impairments of older adults.

"Developmental disability" means a disability that is attributable to mental retardation or a related condition. A related condition must meet all of the following conditions:

(1) It must be attributable to cerebral palsy, epilepsy, or any other condition (other than mental illness) found to be closely related to mental retardation because that condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation, and requires treatment or services similar to those required for those individuals. For purposes of this Section, autism is considered a related condition.

(2) It must be manifested before the individual reaches age 22.

(3) It must be likely to continue indefinitely.

(4) It must result in substantial functional limitations in 3 or more of the following areas of major life activity: self-care, language, learning, mobility, self-direction, and capacity for independent living.

"Mental Illness" means a mental or emotional disorder verified by a diagnosis contained in the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition, published by the American Psychiatric Association (DSM-IV), or its successor, or International Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM), or its successor, that substantially impairs a person's cognitive, emotional, or behavioral functioning, or any combination of those, excluding (i) conditions that may be the focus of clinical attention but are not of sufficient duration or severity to be categorized as a mental illness, such as parent-child relational problems, partner-relational problems, sexual abuse of a child, bereavement, academic problems, phase-of-life problems, and occupational problems (collectively, "V codes"), (ii) organic disorders such as substance intoxication dementia, substance withdrawal dementia, Alzheimer's disease, vascular dementia, dementia due to HIV infection, and dementia due to Creutzfeld-Jakob disease and disorders associated with known or unknown physical conditions such as hallucinosis hallucinasis, amnestic disorders and delirium, and psychoactive substance-induced organic disorders, and (iii) mental retardation or psychoactive substance use disorders.

"Mental retardation" means significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 22 years.

"Physical disability" means a disability as defined by the Americans with Disabilities Act of 1990 that meets the following criteria:

(1) It is attributable to a physical impairment.

(2) It results in a substantial functional limitation in any of the following areas of major life activity: (i) self-care, (ii) receptive and expressive language, (iii) learning, (iv) mobility, (v) self-direction, (vi) capacity for independent living, and (vii) economic sufficiency.

(3) It reflects the person's need for a combination and sequence of special, interdisciplinary, or general care, treatment, or other services that are of lifelong or of extended duration and must be individually planned and coordinated.

(b) In this Act:

"Chronological age-appropriate services" means services, activities, and strategies for persons with disabilities that are representative of the lifestyle activities of nondisabled peers of similar age in the community.

"Comprehensive evaluation" means procedures used by qualified professionals selectively with an individual to determine whether a person has a disability and the nature and extent of the services that the person with a disability needs.

"Department" means the Department on Aging, the Department of Human Services, the Department of Public Health, the Department of Public Aid, the University of Illinois Division of Specialized Care for Children, the Department of Children and Family Services, and the Illinois State Board of Education, where appropriate, as designated in the implementation plan developed under Section 20.

"Family" means a natural, adoptive, or foster parent or parents or other person or persons responsible for the care of an individual with a disability in a family setting.

"Family or individual support" means those resources and services that are necessary to maintain an individual with a disability within the family home or his or her own home. These services may include, but are not limited to, cash subsidy, respite care, and counseling services.

"Independent service coordination" means a social service that enables persons with developmental disabilities and their families to locate, use, and coordinate resources and opportunities in their communities on the basis of individual need. Independent service coordination is independent of providers of services and funding sources and is designed to ensure accessibility, continuity of care, and accountability and to maximize the potential of persons with developmental disabilities for independence, productivity, and integration into the community. Independent service coordination includes, at a minimum: (i) outreach to identify eligible individuals; (ii) assessment and periodic reassessment to determine each individual's strengths, functional limitations, and need for specific services; (iii) participation in the development of a comprehensive individual service or treatment plan; (iv) referral to and linkage with needed services and supports; (v) monitoring to ensure the delivery of appropriate services and to determine individual progress in meeting goals and objectives; and (vi) advocacy to assist the person in obtaining all services for which he or she is eligible or entitled.

"Individual service or treatment plan" means a written recorded assessment of the needs of a person with a disability, a description of the services recommended, the goals of each type of element of service, an anticipated timetable for the accomplishment of the goals, and a designation of the qualified professionals responsible for the implementation of the plan.

"Least restrictive environment" means an environment that represents the least departure from the normal patterns of living and that effectively meets the needs of the person receiving the service.

"Most integrated setting" means a setting that enables a person with a disability to interact with nondisabled persons to the fullest extent possible and that is appropriate to meet the needs and choices of the person with the disability and his or her guardian.

(Source: P.A. 93-638, eff. 12-31-03; revised 12-15-05.)

(20 ILCS 2407/15)

Sec. 15. Services. Services to persons with disabilities shall be provided in the most integrated setting appropriate to the needs and choices of the person with the disability and his or her guardian in accordance with an the individual service or treatment plan developed with the person with the disability and his or her guardian for an individual under this Section. The person individual shall initially be screened for potential eligibility by the appropriate State agency and, if the person individual is determined deemed probably eligible for a disability services service or program, a comprehensive evaluation of the person individual shall be conducted to determine the services and programs appropriate for that person individual. The array of available services shall be described in the Disability Disabilities Services Implementation Plan required under this Act and may include, but need not be limited to:

(1) Comprehensive evaluation and diagnosis. The comprehensive evaluation and diagnosis shall include A person with a suspected disability who is applying for Department-authorized disability services must receive, after an initial screening and a determination of probable eligibility for a disability service or program, a comprehensive diagnosis and evaluation, including an assessment of skills, abilities, and potential for residential placement from among a full array of residential options, including in-home supports, job training, and work placement, adapted to the person's his or her primary language, cultural background, and ethnic origin. All components of a comprehensive evaluation must be administered by a qualified examiner.

(2) Individual service or treatment plan. A person with a disability shall receive services in accordance with a current individual service or treatment plan. A person with a disability who is receiving services shall be provided periodic reevaluation and review of the individual service or treatment plan, at least annually, in order to measure progress, to modify or change objectives if necessary, and to provide guidance and remediation techniques.

A person with a disability and his or her guardian have the right to participate in the planning and decision-making process regarding the person's individual service or treatment plan and to be informed in writing, or in that person's mode of communication, of progress at reasonable time intervals. Each person must be given the opportunity to make decisions and exercise options regarding the plan, consistent with the person's capabilities. Family members and other representatives of the person with a disability must be allowed, encouraged, and supported to participate as well, if the person with a disability consents to that participation.

(3) Nondiscriminatory access to services. A person with a disability may not be denied program services because of sex, ethnic origin, marital status, ability to pay (except where contrary to law), or criminal record. Specific program eligibility requirements with regard to disability, level of need, age, and other matters may be established by the Department by rule. The Department may set priorities for the provision of services and for determining the need and eligibility for services in accordance with available funding.

(3) (4) Family or individual support. Family or individual support services shall include services that support in-home or community residential placement, prevent unnecessary out-of-home placement or institutionalization, and foster independent living. A person with a disability must be provided family or individual support services, or both, whenever possible and appropriate, to prevent unnecessary out-of-home placement and to foster independent living skills when authorized for such services.

(4) (5) Residential services. Residential services shall include a full array of institutional and non-institutional residential options outside of the home of the person with a disability that include appropriate supervision or support services in the most integrated setting appropriate to meet his or her needs and the choices of the person with a disability and his or her guardian. choices and options. A person with a disability who requires residential placement in a supervised or supported setting must be provided choices among various residential options when authorized for those services. The placement must be offered in the least restrictive environment appropriate to the individual.

(5) (6) Education. Education services shall include early intervention services for infants and toddlers, services identified in a student's Individualized Educational Program (IEP) consistent with requirements of the federal Individuals with Disabilities Improvement Act and the Illinois School Code, and appropriate accommodations and adaptations for a person with a disability who attends an institution of higher learning. A person with a disability has the right to a free, appropriate public education as provided in both State and federal law. Each local educational agency must prepare persons with disabilities for adult living. In anticipation of adulthood, each person with a disability has the right to a transition plan developed and ready for implementation before the person's exit by no later than the school year in which the person reaches age 14, consistent with the requirements of the federal Individuals with Disabilities Education Act and Article XIV of the School Code.

(6) (7) Vocational habilitation and rehabilitation training. Vocational habilitation and rehabilitation services shall include services that enable a person with a disability to move toward independence and self-sufficiency by developing or redeveloping skills that lead to employment or re-employment in the most integrated setting appropriate to meet his or her needs and the choices of the person with a disability and his or her guardian. A person with a disability must be provided vocational training, when appropriate, that contributes to the person's independence and employment potential. This training should include strategies and activities in programs that lead to employment and reemployment in the least restrictive environment appropriate to the individual.

(7) (8) Employment. Employment services shall include job placement and job supports that enable a person with a disability to locate and maintain gainful employment in the most integrated setting appropriate to the needs and choices of the person with the disability and his or her guardian. A person with a disability has the right to be employed free from discrimination, pursuant to the Constitution and laws of this State.

(8) (9) Independent service coordination. Independent service coordination shall include a service coordination program free of conflicts of interest that is provided or funded by the State of Illinois to enable a person with a disability to access appropriate disability services. A person with a disability who is receiving direct services from the Department must be provided independent service coordination when needed.

(9) (10) Mental health supports. Mental health support services shall include necessary Individuals with a disability must be provided needed mental health supports such as psychological rehabilitation, psychiatric and medication coverage, day treatment, care management, and crisis services.

(10) Assistive technology devices and services. Assistive technology devices shall include any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a person with a disability in a variety of environments including the person's residence, workplace, or school. An assistive technology service is any service that directly assists a person with a disability in the selection, acquisition, or use of an assistive technology device.

(11) Due process. A person with a disability retains the rights of citizenship. Any person aggrieved by a decision of a department regarding services provided under this Act must be given an opportunity to present complaints at a due process hearing before an impartial hearing officer designated by the director of that department. Any person aggrieved by a final administrative decision rendered following the due process hearing may seek judicial review of that decision pursuant to the Administrative Review Law. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure. Attorney's fees and costs may be awarded to a prevailing complainant in any due process hearing or action for judicial review under this Act.

The right to a hearing under this item (11) is in addition to any other rights under federal, State, or local laws, however nothing in this Section shall be construed as requiring the establishment of a new due process hearing procedure if one already exists for a particular service or program.

(Source: P.A. 93-638, eff. 12-31-03.)

(20 ILCS 2407/20)

Sec. 20. Advisory committee; Disability Services Plan Implementation.

(a) The Governor shall appoint an advisory committee to assist in the further development and implementation of a Disability Disabilities Services Implementation Plan that will ensure compliance by the State of Illinois with the Americans with Disabilities Act and the decision in Olmstead v. L.C., 119 S.Ct. 2176 (1999). The advisory committee shall be known as the Illinois Disabilities Services Advisory Committee and shall be composed of no more than 33 members, including: persons who have a physical disability, a developmental disability, or a mental illness; senior citizens; advocates for persons with physical disabilities; advocates for persons with developmental disabilities; advocates for persons with mental illness; advocates for senior citizens; representatives of providers of services to persons with physical disabilities, developmental disabilities, and mental illness; representatives of providers of services to senior citizens; and representatives of organized labor.

In addition, the following State officials shall serve on the committee as ex-officio non-voting members: the Secretary of Human Services or his or her designee; the State Superintendent of Education or his or her designee; the Director of Aging or his or her designee; the Executive Director of the Illinois Housing Development Authority or his or her designee; the Director of Public Aid (now Director of Healthcare and Family Services) or his or her designee; and the Director of Public Health Employment Security or his or her designee. Other State officials, including, but not limited to, the Director of Employment Security, the Director of Commerce and Economic Opportunity, the Director of Children and Family Services, the Director of the Board of Higher Education, and the Director of the Illinois Community College Board, may be invited to participate or to designate a representative to participate in the discretion of the co-chairs and the Secretary of Human Services when their expertise and resources are relevant to the resolution of a particular issue. The Department of Human Services shall be responsible for convening meetings and providing logistical support for the advisory committee.

The advisory committee shall select co-chairs and may select other officers if it determines they are necessary officers, including a chair and a vice-chair.

The advisory committee shall meet at least quarterly and shall keep official meeting minutes. Committee members shall not be compensated but shall be paid for their expenses related to attendance at meetings.

(b) The Governor, with the assistance of the advisory committee and the Secretary of Human Services, shall submit the Disability Services Plan to the General Assembly by March 31, 2006. The Plan implementation plan must include, but need not be limited to, the following:

(1) Overarching principles that will govern the disability services delivery system in Illinois in the future, consistent with the Americans with Disabilities Act and the Olmstead decision.

(2) A review of current disability services in Illinois that includes the State agency or agencies responsible for each service and the funding source or sources for each service.

(3) An assessment of current services that includes the identification of gaps in services, geographic inequities, and fiscal and other policies necessary to enhance compliance with the Americans with Disabilities Act and the Olmstead decision.

(4) Recommendations for change that include (i) long-term and short-term action plans, (ii) prioritization of proposed long-term and short-term action steps, (iii) proposed changes in law, rule, or policy determined to be necessary for the implementation of any recommendation, (iv) the estimated fiscal impact of each recommendation, and (v) proposed methods of financing the implementation of each recommendation.

(1) Establishing procedures for completing comprehensive evaluations, including provisions for Department review and approval of need determinations. The Department may utilize independent evaluators and targeted or sample reviews during this review and approval process, as it deems appropriate.

(2) Establishing procedures for the development of an individual service or treatment plan for each person with a disability, including provisions for Department review and authorization.

(3) Identifying core services to be provided by agencies of the State of Illinois or other agencies.

(4) Establishing minimum standards for individualized services.

(5) Establishing minimum standards for residential services in the least restrictive environment.

(6) Establishing minimum standards for vocational services.

(7) Establishing due process hearing procedures.

(8) Establishing minimum standards for family support services.

(9) Securing financial resources necessary to fulfill the purposes and requirements of this Act, including but not limited to obtaining approval and implementing waivers or demonstrations authorized under federal law.

(c) The Governor, with the assistance of the Illinois Disabilities Services Advisory Committee and the Secretary of Human Services, is responsible for the completion of the implementation plan. The Governor must submit a report to the General Assembly by November 1, 2004, which must include the following:

(1) The implementation plan.

(2) A description of current and planned programs and services necessary to meet the requirements of the individual service or treatment plans required by this Act, together with the actions to be taken by the State of Illinois to ensure that those plans will be implemented. This description shall include a report of related program and service improvements or expansions implemented by the Department since the effective date of this Act.

(3) The estimated costs of current and planned programs and services to be provided under the implementation plan.

(4) A report on the number of persons with disabilities who may be eligible to receive services under this Act, together with a report on the number of persons who are currently receiving those services.

(5) Any proposed changes in State policies, laws, or regulations necessary to fulfill the purposes and requirements of this Act.

(c) (d) The Governor, with the assistance of the Secretary of Human Services and the Disability Services Advisory Committee, shall annually update the Disability Services Plan implementation plan and report changes to the General Assembly by July 1 of each year. The first annual report is due on July 1, 2007. After the submission of each annual report, a public hearing before the appropriate committee of the Illinois General Assembly shall be held to receive public comment and further discussion of the Disability Services Plan. Initial implementation of the plan is required by July 1, 2005. The requirement of annual updates and reports expires in 2008, unless otherwise extended by the General Assembly.

(d) To the extent possible, planning steps and associated timelines as required in this Act shall be coordinated with related initiatives such as the work of the Older Adults Services Advisory Committee as created by the Older Adults Services Act (320 ILCS 42/) and the Mental Health Strategic Restructuring Initiative.

(Source: P.A. 93-638, eff. 12-31-03; revised 12-15-05.)

(20 ILCS 2407/22 new)

Sec. 22. Readiness assessment. By January 1, 2007, the Department of Human Services, the Department of Healthcare and Family Services, and the Department on Aging shall cooperatively arrange for the implementation of assessments of the readiness of individuals with disabilities to effect appropriate and medically necessary transitions to the most integrated setting possible, taking into consideration the individual's needs, preferences, and capacity to be served in that setting. The Departments shall also conduct an assessment of the readiness of the State to effect any transitions that individuals may prefer and require, taking into consideration the availability of resources to accomplish the placements. The assessment of the State's readiness shall include all relevant information available that will determine the scope and nature of the supports and services that may be necessary to effect these transitions. The assessment of the State's capacity shall include: (i) a determination regarding the requisite skills, competencies, and qualifications necessary to support persons with disabilities in their communities; (ii) a determination regarding the sufficiency of qualified agency and individual providers to meet the needs of the people with disabilities in their communities; and (iii) a determination of the capacity of the community service system to provide the necessary support and services effectively and efficiently consistent with the service plans of the individuals with disabilities in their communities. The assessment of the State's capacity shall also determine the extent to which the payers of care cover the cost of the supports and services that are to be provided, and any adjustments to the rates of payment that may be necessary to ensure the availability and delivery of those supports and services.

(20 ILCS 2407/27 new)

Sec. 27. Due process. A person claiming to be aggrieved by a determination of an agency regarding eligibility for a disability service, the provision of a disability service, or a change in or termination of a disability service under this Act must be given (1) a written notice of the decision and the basis for the decision, (2) an opportunity to file a complaint with the appropriate agency challenging the decision, (3) an opportunity to appear before an impartial decision-maker designated by the head of the agency responsible for the decision to present evidence in support of the complaint, and (4) a written decision on the complaint including findings of fact and conclusions of law. A person aggrieved by a final administrative decision under this Section may seek judicial review under the Administrative Review Law. For purposes of this Section, "administrative decision" has the same meaning as provided in Section 3-101 of the Code of Civil Procedure. A prevailing complainant in an action for judicial review under this Section may be awarded reasonable attorney fees and costs. Due process rights under this Section shall not supercede any other due process rights established under any federal, State, or local laws. Nothing in this Section shall be construed as requiring the establishment of a new due process procedure if one already exists for a particular disability service. Complaints that may be addressed under the complaint process authorized under the federal Individuals with Disabilities Education Improvement Act shall not be made under this Section. A disability service that is not an entitlement may be denied or limited due to insufficient funds.

(20 ILCS 2407/28 new)

Sec. 28. Non-discriminatory access to services. A person with a disability shall not be denied a disability service because of sex, race, religion, ethnic origin, marital status, ability to pay (except where contrary to law), or criminal record. Specific program eligibility requirements with regard to disability, level of need, age and other matters may be established by the administering State agency by rule. An administering State agency may set priorities for the provision of services and for determining the need and eligibility for services in accordance with available funding.

Section 99. Effective date. This Act takes effect upon becoming law.