The DD Act Purpose : Promoting DD Act Goals

This is an annotated version of the “purpose” of The Developmental Disabilities Assistance and Bill of Rights Act of 2000 with my comments. The way the purpose is stated affects the meaning and interpretation of the DD Act, for better and for worse. [See this section (Sec.101b) of The DD Act in its regular form and format here.]

PURPOSE.—The purpose of this title is to assure 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 authorized under this title, including specifically—

[The overall purpose of the DD Act is to promote self-determination, independence, productivity, integration, and inclusion in community life for people with DD, to assure participation in the design of promotional activities by individuals and their families, and to assure that individuals and their families have access to services, supports, and other assistance that promote the purpose of the DD Act. The activities promoted are those stated by the federal mandate with the allocation of funds going to DD Act programs. The DD Act does not provide direct funding to pay for services to individuals or their families except when this occurs incidentally in DD Act program activities. The DD Act does not contemplate how the purpose of the Act applies to people with developmental disabilities who, because of their disabilities, are unable to achieve the goals that are being promoted.]

To continue, “…including specifically —”

State Councils on Developmental Disabilities in each State to engage in advocacy, capacity building, and systemic change activities that— 

• are consistent with the purpose described in this subsection and the policy described in subsection (c); and 
• 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;    

[Note again, that the “comprehensive system” is to promote the goals described in The DD Act, without mention of the possibility that individual goals may differ from those described.]

Protection and Advocacy systems in each State to protect the legal and human rights of individuals with developmental disabilities;

University Centers for Excellence in Developmental Disabilities Education, Research, and Service— 

1. to provide interdisciplinary pre-service preparation and continuing education of students and fellows, which may include the preparation and continuing education of leadership, direct service, clinical, or other personnel to strengthen and increase the capacity of States and communities to achieve the purpose of this title;

2. to provide community services— 

• that provide training and technical assistance for individuals with developmental disabilities, their families, professionals, paraprofessionals, policy-makers, students, and other members of the community; and
• that may provide services, supports, and assistance for the persons described in clause (i) through demonstration and model activities;

3. to conduct research, which may include basic or applied research, evaluation, and the analysis of public policy in areas that affect or could affect, either positively or negatively, individuals with developmental disabilities and their families; and
 
4. to disseminate information related to activities undertaken to address the purpose of this title, especially dissemination of information that demonstrates that the network authorized under this subtitle is a national and international resource that includes specific substantive areas of expertise that may be accessed and applied in diverse settings and circumstances; and

Funding for— 

• national initiatives to collect necessary data on issues that are directly or indirectly relevant to the lives of individuals with developmental disabilities;
• technical assistance to entities who engage in or intend to engage in activities consistent with the purpose described in this subsection or the policy described in sub-section (c); and
• other nationally significant activities.

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While we are on the topic, here is a breakdown of funding for DD Act Programs for Fiscal Year 2014, just to give an approximate idea of the amount of federal money spent on DD Act programs:

(Dollars in millions) 

State Councils on Developmental Disabilities                                      $70.692

Developmental Disabilities Protection and Advocacy                             38.634

University Centers for Excellence in Developmental Disabilities            36.674

Projects of National Significance                                                              8.821

Total Developmental Disabilities Programs:   $154.821

Detailed budget information on DD Act programs is available on the Website for the Administration on Intellectual and developmental disabilities (AIDD).

Michigan releases revised HCBS Transition Plan for public comment

This is a Press Release from the Michigan Department of Health and Human Services. Public comments on the revised Transition Plan will be accepted through January 22, 2016. The revised plan will be submitted to the Centers for Medicare and Medicaid Services by February 29, 2016.

FOR IMMEDIATE RELEASE: December 16, 2015
CONTACT: Jennifer Eisner, (517) 241-2112

MDHHS releases revised Statewide Transition Plan for Home and Community-Based Services

LANSING, Mich. – The Michigan Department of Health and Human Services provides home and Community-Based Services to individuals in the Medicaid program. These services help Michigan citizens with disabilities or other health issues to live at home or in the community. Michigan offers many of these services through waivers, which were approved by the Centers for Medicare & Medicaid Services (CMS).

CMS recently released a new rule for Home and Community-Based Services waivers to promote enhanced quality of services and personal protections. MDHHS has five 1915(c) waivers that are impacted by the final rule:

• Children’s Waiver Program
• Habilitation Supports Waiver
• MI Choice WaiverMI 
• Health Link HCBS Waiver Program 
• Waiver for Children with Serious Emotional Disturbances

MDHHS developed a Statewide Transition Plan to outline the implementation process for this rule. The Department recently revised its Statewide Transition Plan based on feedback from the Centers for Medicare and Medicaid Services. The revised Statewide Transition Plan can be found on the MDHHS Home and Community-Based Services Program Transition page. 

Any comments regarding the proposed Statewide Transition Plan covered by this public notice, or request for a written copy, may be submitted in writing to HCBSTransition@michigan.gov or by mail to:
 
Attention:  Medicaid Policy
Program Policy Division,
Bureau of Medicaid Policy and Actuarial Services
Michigan Department of Health and Human Services
P.O. Box 30479
Lansing, Michigan 48909-7979
 
The revised Statewide Transition Plan is a draft and will be updated as needed until Feb. 29, 2015, when the plan will be submitted to CMS for approval. MDHHS will accept public comments until Jan. 22, 2016.

The Individual Program Plan Under Fire : What every Parent and Guardian Must Know

The Individual Program Plan (IPP) Under Fire: Three Things Every Parent and Conservator Must Know from Autism Society SF Bay Area on Vimeo.

I am generally critical of the ARC and its reputation nationally for imposing its ideology of full inclusion on people with disabilities and their families regardless of need or individual circumstance. This presentation, however, by Barbara Maizie, Executive Director of the ARC of Contra Costa County, California, and a member of Keeping the Lanterman Promise on the importance of the Individualized Program Plan (IPP) is the best I have ever seen. It was part of the Autism Society San Francisco Bay Area's 2015 Conference, "Let a Thousand Flowers Bloom: The Bay Area Adult Autism/DD Programs and Housing Summit." The conference took place October 23, 2015 at Santa Clara University and featured more than 50 speakers.

In Michigan, the equivalent to the IPP is the Individual Plan of Service (IPOS) required by state law for everyone receiving  mental health services through the Community Mental Health system. Her message applies here and in other states that require DD services as an entitlement under protections in their state laws.

Update on Barbara Maizie: I had never met Barbara except through this video. Sadly, she was diagnosed with a brain tumor earlier this year and died on August 13, 2016. It makes me appreciate even more the influence that one person can have. 

The DD Act : "Findings" vs. Facts

The “Findings” of Congress listed in The Developmental Disabilities Assistance and Bill of Rights Act of 2000 [the DD Act ] are statements that presumably establish the need for advocacy, legal protections, research and other activities funded by the Act. Among the findings of Congress, however, are statements that are inconsistent with the defining characteristics of people with developmental disabilities. 

By definition, an individual with a developmental disability has a severe and chronic lifelong disability that results in substantial functional limitations in at least three major life activities. This population includes a spectrum of people ranging from those with severe physical limitations who have the full mental capacity to communicate and make decisions for themselves to those with profound physical and intellectual disabilities and high medical needs, as well as people with severe behavioral problems that may compromise their own safety and that of others. When any part of this spectrum is ignored or marginalized, the activities funded by the DD Act can result in harm based on false generalizations and a desire to avoid showing developmental disabilities in a “negative” light.

My sons, who are 30 and 39 years old, are at the most severe end of the spectrum of people with DD. I am particularly sensitive to attempts to minimize the severity of their disabilities to make them appear more capable than they are in the hopes that they will be more easily accepted or that legislators will be more willing to allocate funds for their care and support. Their inherent worth as human beings does not lie in proving that they have a capacity to be productive or independent. To deny the severity of their disabilities does them no favors and increases the likelihood that they will not get the care that they need and that public policy decisions will be made without consideration of the full range of disabilities among the DD population.

Congress has been selective in what it chooses to “find” to justify federal involvement in advocacy for this vulnerable population and the type of advocacy that it will fund.

Here is a the first finding that is listed in the DD Act:

“…disability is a natural part of the human experience that does not diminish the right of individuals with developmental disabilities to live independently, to exert control and choice over their own lives, and to fully participate in and contribute to their communities through full integration and inclusion in the economic, political, social cultural, and educational mainstream of United States society…”

While many people with DD have limitations that may be overcome with appropriate supports, others will not be able to overcome their functional limitations any more than they can wish away their disabilities. To include this statement without qualification as a “finding” has contributed to the controversial activities of some DD Act-funded programs that do not acknowledge the full range of disabilities and confuse “group rights” based on false generalizations about people with DD with “individual rights” that are protected by law.

Many of the findings of Congress do, in fact, accurately reflect the state of the system of services and care for people with DD over the full range of disability:

• individuals whose disabilities occur during their developmental period frequently have severe disabilities that are likely to continue indefinitely;
• individuals with developmental disabilities often encounter discrimination in the provision of critical services, such as services in the areas of emphasis (as defined in section 102);
• individuals with developmental disabilities are at greater risk than the general population of abuse, neglect, financial and sexual exploitation, and the violation of their legal and human rights;
• a substantial portion of individuals with developmental disabilities and their families do not have access to appropriate support and services, including access to assistive technology, from generic and specialized service systems, and remain unserved or underserved;
• individuals with developmental disabilities often require lifelong community services, individualized supports, and other forms of assistance, that are most effective when provided in a coordinated manner;
• there is a need to ensure that services, supports, and other assistance are provided in a culturally competent manner, that ensures that individuals from racial and ethnic minority backgrounds are full included in all activities provided under this title;
• in almost every State, individuals with developmental disabilities are waiting for appropriate services in their communities, in the areas of emphasis;

Here are more “findings” regarding families and communities and their role in caring for and supporting people with DD:

• family members, friends, and members of the community can play an important role in enhancing the lives of individuals with developmental disabilities, especially when the family members, friends, and community members are provided with the necessary community services, individualized supports, and other forms of assistance; [In my opinion, this does not go far enough in emphasizing the importance of families in the system of care and not just to “enhance” the lives of people with DD. Without the care, support, monitoring of care and services, financial support, and advocacy of families, the system would probably collapse.]
• current research [as of 2000] indicates that 88% of individuals with developmental disabilities live with their families or in their own households;
• many service delivery systems and communities are not prepared to meet the impending needs of 479,862 adults with developmental disabilities who are living at home with parents who are 60 years old or older and who serve and the primary caregivers of the adults; [these figures have probably increased substantially since 2000 with the aging of the caregiving population, the limitations on resources, and the poor quality of alternatives to remaining in the family home.]
• the public needs to be made more aware of the capabilities and competencies of individuals with developmental disabilities, particularly in cases in which the individuals are provided with necessary services, supports, and other assistance; [The public should also be aware of the diverse needs of people with DD and the importance of providing a full range of services, housing, and programs to meet their needs.]
• as increasing numbers of individuals with developmental disabilities are living, learning, working, and participating in all aspects of community life, there is an increasing need for a well trained workforce that is able to provide the services, supports, and other forms of direct assistance required to enable the individuals to carry out those activities;
• there needs to be greater effort to recruit individuals from minority backgrounds into professions serving individuals with developmental disabilities and their families.

Finally, Congress makes a giant leap in declaring that,

The goals of the Nation properly include a goal of providing individuals with developmental disabilities with the information, skills, opportunities, and support to—

• make informed choices and decisions about their lives;
• live in homes and communities in which such individuals can exercise their full rights and responsibilities as citizens;
• pursue meaningful and productive lives;
• contribute to their families, communities, and States, and the Nation;
• have interdependent friendships and relationships with other persons;
• live free of abuse, neglect, financial and sexual exploitation, and violations of their legal and human rights;
• achieve full integration and inclusion in society, in an individualized manner, consistent with the unique strengths, resources, priorities, concerns, abilities, and capabilities of each individual;…

People with DD have varying degrees of ability and also vary in their capacity for making informed choices and decisions. Many, if not most people with DD, will not be able to fully or even partially overcome their disabilities, whether or not they are presented with opportunities, information, and support. “Skills” that allow someone to live independently, contribute to communities, achieve “full integration”, etc. are based on ability and by definition people with DD have major functional limitations. Many people find ways to compensate for disabilities in one area with abilities in another.  Accommodations and support may make these goals achievable for many people, but to make a sweeping generalization, without qualification, that the “goals of the Nation” are to “provide” people with abilities they may never have is both arrogant and ultimately harmful to people most in need of care, support, understanding, and protection.

I want everyone to “live free of abuse, neglect, financial and sexual exploitation, and violations of their legal and human rights”, but to presume that this can be achieved by providing individuals with severe disabilities with the skills to overcome their disabilities is not rational.

Defining Intellectual Disability

The term “intellectual disability” replaces the term “mental retardation”. In the campaign to banish the “R-word”, it sometimes seemed advocates wanted to banish “mental retardation” entirely, but the condition did not magically go away.

Surprisingly, the term “intellectual disability” is not defined by the DD Act.

The definition that is often referred to when doing a search for “intellectual disability”, comes from the American Association on Intellectual and Developmental Disabilities (AAIDD):

Definition of Intellectual Disability

Intellectual disability is a disability characterized by significant limitations in both intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. This disability originates before the   age of 18.

Intellectual Functioning

Intellectual functioning—also called intelligence—refers to general mental capacity, such as learning, reasoning, problem solving, and so on.

One way to measure intellectual functioning is an IQ test. Generally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.

Adaptive Behavior
 
Adaptive behavior is the collection of conceptional, social, and practical skills that are learned and performed by people in their everyday lives. 

• Conceptual skills—language and literacy; money, time, and number concepts; and self-direction.
• Social skills—interpersonal skills, social responsibility, self-esteem, gullibility, naïveté (i.e., wariness), social problem solving, and the ability to follow rules/obey laws and to avoid being victimized.
• Practical skills—activities of daily living (personal care), occupational skills, healthcare, travel/transportation, schedules/routines, safety, use of money, use of the telephone.

Standardized tests can also determine limitations in adaptive behavior.

Age of Onset
 
This condition is one of several developmental disabilities—that is, there is evidence of the disability during the developmental period, which in the US is operationalized as before the age of 18.

Additional Considerations
 
But in defining and assessing intellectual disability, the AAIDD stresses that additional factors must be taken into account, such as the community environment typical of the individual’s peers and culture. Professionals should also consider linguistic diversity and cultural differences in the way people communicate, move, and behave.

Finally, assessments must also assume that limitations in individuals often coexist with strengths, and that a person’s level of life functioning will improve if appropriate personalized supports are provided over a sustained period.


Only onthe basis of such many-sided evaluations can professionals determine whether an individual has intellectual disability and tailor individualized support plans.

This is additional information from the AIDD, “Frequently Asked Questions on Intellectual Disability”:
 
Is intellectual disability the same as mental retardation? Why do some programs and regulations still say mental retardation?
 
The term intellectual disability covers the same population of individuals who were diagnosed previously with mental retardation in number, kind, level, type, duration of disability, and the need of people with this disability for individualized services and supports. 

Furthermore, every individual who is or was eligible for a diagnosis of mental retardation is eligible for a diagnosis of intellectual disability.

While intellectual disability is the preferred term, it takes time for language that is used in legislation, regulation, and even for the names of organizations, to change.

Is intellectual disability the same as developmental disabilities?
 
"Developmental Disabilities" is an umbrella term that includes intellectual disability but also includes other disabilities that are apparent during childhood. 

Developmental disabilities are severe chronic disabilities that can be cognitive or physical or both. The disabilities appear before the age of 22 and are likely to be lifelong.Some developmental disabilities are largely physical issues, such as cerebral palsy or epilepsy. Some individuals may have a condition that includes a physical and intellectual disability, for example Down syndrome or fetal alcohol syndrome.

 Intellectual disability encompasses the “cognitive” part of this definition, that is, a disability that is broadly related to thought processes. Because intellectual and other developmental disabilities often co-occur, intellectual disability professionals often work with people who have both types of disabilities.

QOTD: "The best lack all conviction..."

This is from The Second Coming by W.B. Yeats, 1919, written in the wake of World War I. This comes to mind after months of overexposure to Donald Trump.

The DD Act : Rights of Individuals with Developmental Disabilities

Here is a link to the “Rights of Individuals with Developmental Disabilities” as a Word document from the DD Act of 2000. The following is my annotated version of the Bill of Rights.

IN GENERAL.—Congress makes the following findings respecting the rights of individuals with developmental disabilities...

These findings list "the rights of individuals with developmental disabilities” [emphasis added]. Some disability rights advocates have made assertions about group or collective rights of people with DD based on generalizations about their characteristics and capabilities. For instance, we often see the assertion that people with developmental disabilities have the right to live in “the community”, as opposed to an institution. This is generally true, unless the individual’s need for appropriate services in a safe and accommodating environment, i.e. an institution or other specialized setting, is preferable and less restrictive than living in an inadequate community setting that does not meet the individual's needs.

• Individuals with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities, consistent with section 101(c). [section 101(c) refers to the Policy and principles for carrying out programs and activities under the DD Act.]
• The treatment, services, and habitation for an individual with developmental disabilities should be designed to maximize the potential of the individual and should be provided in the setting that is least restrictive of the individual’s personal liberty.

The term habilitation is not defined in the DD Act, but the Website managed by the U.S. Centers for Medicare and Medicaid Services, HealthCare.gov, defines it as “Health care services that help you keep, learn, or improve skills and functioning for daily living. Examples include therapy for a child who isn't walking or talking at the expected age. These services may include physical and occupational therapy, speech-language pathology, and other services for people with disabilities in a variety of inpatient and/or outpatient settings.”

The Federal Government and the States both have an obligation to ensure that public funds are provided only to institutional programs, residential programs, and other community programs, including educational programs in which individuals with developmental disabilities participate, that— 

provide treatment, services, and habilitation that are appropriate to the needs of such individuals;
 
and meet minimum standards relating to— 

• provision of care that is free of abuse, neglect, sexual and financial exploitation, and violations of legal and human rights and that subjects individuals with developmental disabilities to no greater risk of harm than others in the general population;
• provision to such individuals of appropriate and sufficient medical and dental services;
• prohibition of the use of physical restraint and seclusion for such an individual unless absolutely necessary to ensure the immediate physical safety of the individual or others, and prohibition of the use of such restraint and seclusion as a punishment or as a substitute for a habilitation program;
• prohibition of the excessive use of chemical restraints on such individuals and the use of such restraints as punishment or as a substitute for a habilitation program or in quantities that interfere with services, treatment, or habilitation for such individuals; and
• provision for close relatives or guardians of such individuals to visit the individuals without prior notice.

Notice that there is no assumption here that everyone will live “in the community” or that there are any restrictions on people with DD participating in programs in any particular setting, as long as the individual is provided with appropriate care and treatment and that there are prohibitions against certain kinds of mistreatment listed here. Also note, that close relatives and guardians are recognized as having a role in assuring the safety and well being of people with DD.

All programs for individuals with developmental disabilities should meet standards—

• that are designed to assure the most favorable possible outcome for those served; and
• in the case of residential programs serving individuals in need of comprehensive health-related, habilitative, assistive technology or rehabilitative services, that are at least equivalent to those standards applicable to intermediate care facilities for the mentally retarded, promulgated in regulations of the Secretary on June 3, 1988, as appropriate, taking into account the size of the institutions and the service delivery arrangements of the facilities of the programs;

in the case of other residential programs for individuals with developmental disabilities, that assure that—

• care is appropriate to the needs of the individuals being served by such programs;
• the individuals admitted to facilities of such programs are individuals whose needs can be met through services provided by such facilities; and
• the facilities of such programs provide for the humane care of the residents of the facilities, are sanitary, and protect their rights; and
• in the case of nonresidential programs, that assure that the care provided by such programs is appropriate to the individuals served by the programs.

Notice again that the emphasis is on appropriate care and services. The DD Act does not define appropriate, but most programs providing services to individuals with DD require an individual plan of services written with the participation of the individual with DD and his or her family and legal guardian, if there is one. This determination of specific services, care, and treatment, that includes the individual's right to appeal decisions they disagree with, should be considered a sufficient description of “appropriate” care and services.

And finally,

CLARIFICATION. —The rights of individuals with developmental disabilities described in findings made in this section shall be considered to be in addition to any constitutional or other rights otherwise afforded to all individuals.

The rights listed here do not in any way restrict the rights afforded to all individuals.