Sections 83-1201 to 83-1228 shall be known and may be cited as the Developmental Disabilities Services Act.

It is the intent of the Legislature that:

(1) All persons with developmental disabilities shall receive services and assistance which present opportunities to increase their independence, productivity, and integration into the community;

(2) All persons with developmental disabilities shall have access to a full array of services appropriate for them as individuals;

(3) All persons with developmental disabilities shall have a right to live, work, and recreate with people who are not disabled;

(4) All persons with developmental disabilities shall be served in their communities and should only be served by specialized programs when their needs cannot be met through general services available to all persons, including those without disabilities;

(5) All persons with developmental disabilities shall have the right to receive age-appropriate services consistent with their individual needs, potentials, and abilities;

(6) All persons with developmental disabilities shall be afforded the same rights, dignity, and respect as members of society who are not disabled; and

(7) Persons who deliver services to persons with developmental disabilities shall be assured a uniform system of compensation and training and a full range of work-site enhancements which attract and retain qualified employees.

The Legislature finds that present state appropriations on behalf of community-based services to persons with developmental disabilities are inadequate to pay the reasonable costs of providing such services to all Nebraskans who are eligible to receive them.

It is the intent of the Legislature that the state pursue full funding of community-based developmental disability programs in a reasonable timeframe and that the Legislature commit itself and the state to attaining the goal of providing services to all eligible persons by July 1, 2010.

For purposes of the Developmental Disabilities Services Act, the definitions found in sections 83-1204 to 83-1208 shall be used.

Department shall mean the Division of Developmental Disabilities of the Department of Health and Human Services.

Developmental disability shall mean a severe, chronic disability, including an intellectual disability, other than mental illness, which:

(1) Is attributable to a mental or physical impairment unless the impairment is solely attributable to a severe emotional disturbance or persistent mental illness;

(2) Is manifested before the age of twenty-two years;

(3) Is likely to continue indefinitely;

(4) Results in substantial functional limitations in one of each of the following areas of adaptive functioning:

(a) Conceptual skills, including language, literacy, money, time, number concepts, and self-direction;

(b) Social skills, including interpersonal skills, social responsibility, self-esteem, gullibility, wariness, social problem solving, and the ability to follow laws and rules and to avoid being victimized; and

(c) Practical skills, including activities of daily living, personal care, occupational skills, health care, mobility, and the capacity for independent living; and

(5) Reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated.

An individual from birth through the age of nine years inclusive who has a substantial developmental delay or specific congenital or acquired condition may be considered to have a developmental disability without meeting three or more of the major life activities described in subdivision (4) of this section if the individual, without services and support, has a high probability of meeting those criteria later in life.

Director shall mean the Director of Developmental Disabilities of the Division of Developmental Disabilities.

Intellectual disability means significant subaverage general intellectual functioning which is associated with significant impairments in adaptive functioning manifested before the age of twenty-two years. Significant subaverage general intellectual functioning shall refer to a score of seventy or below on a properly administered and valid intelligence quotient test.

Specialized program shall mean an agency, organization, association, or other entity which provides specialized services.

Specialized service shall mean a service provided specifically for persons with developmental disabilities.

To carry out the policies and purposes of the Developmental Disabilities Services Act, the director shall:

(1) Ensure effective management by (a) determining whether applicants are eligible for specialized services, (b) authorizing service delivery for eligible persons, (c) ensuring that services are available, accessible, and coordinated, (d) ensuring that eligible persons have their needs assessed by a team process, have individual program plans developed by a team process to address assessed needs, which plans incorporate the input of the individual and the family, and have services delivered in accordance with the program plan, (e) having the amount of funding for specialized services determined by an objective assessment process, (f) providing information and referral services to persons with developmental disabilities and their families, (g) promoting the development of pilot projects of high quality, cost-efficient services provided by specialized programs, and (h) administering the Beatrice State Developmental Center;

(2) Ensure a coordinated statewide response by (a) developing a comprehensive and integrated statewide plan for specialized services to persons with developmental disabilities in conjunction with state and local officials, designated advocates for such persons, service providers, and the general public, (b) reporting biennially to the Legislature, the Governor, service providers, and the public on persons served and progress made toward meeting requirements of the plan, and (c) creating a statewide registry of persons eligible for specialized services. The report submitted to the Legislature shall be submitted electronically;

(3) Ensure specialized services which are efficient and individualized by (a) developing a written policy which ensures the adequate and equitable distribution of fiscal resources based upon a consistent rationale for reimbursement that allows funding to follow service recipients as their service needs change and which also includes a plan for funding shortfalls and (b) administering all state and federal funds as may be allowed by law;

(4) Ensure maximum quality of services by (a) developing a due process mechanism for resolution of disputes, (b) coordinating the development and implementation of a quality management and improvement plan as described in section 83-1216.01, (c) developing certification and accreditation requirements for service providers, (d) providing technical assistance to local service providers, and (e) providing eligible persons, their families, and the designated protection and advocacy system authorized pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. 15001 et seq., with copies of all reports resulting from surveys of providers of specialized services conducted as part of the certification and accreditation process; and

(5) Establish and staff a developmental disabilities division which shall assist in carrying out the policies and purposes of the Developmental Disabilities Services Act.

The department may establish local field offices to assist in discharging departmental responsibilities and to ensure accessibility of departmental services for persons with developmental disabilities and their families throughout the state.

A person receiving specialized services from a local specialized program which receives financial assistance through the department shall be responsible for the cost of such services in the same manner as are persons receiving services at the Beatrice State Developmental Center. Provisions of law in effect on September 6, 1991, or enacted after such date relating to the responsibility of such persons and their relatives for the cost of and determination of ability to pay for services at the center shall also apply to persons receiving services from specialized programs.

(1) There is hereby created the Advisory Committee on Developmental Disabilities. The advisory committee shall consist of a representative of a statewide advocacy organization for persons with developmental disabilities and their families, a representative of Nebraska's designated protection and advocacy organization, a representative of the Nebraska Planning Council on Developmental Disabilities, a representative of the University Center for Excellence in Developmental Disability Education, Research and Service as defined in section 68-1114, and not more than fifteen additional members. At least fifty-one percent of the members shall be persons with developmental disabilities and family members of persons with developmental disabilities.

(2) The members shall be appointed by the Governor for staggered terms of three years. Any vacancy shall be filled by the Governor for the remainder of the term. One of the members shall be designated as chairperson by the Governor. Members shall be reimbursed for expenses as provided in sections 81-1174 to 81-1177.

(3) The advisory committee shall advise the department regarding all aspects of the funding and delivery of services to persons with developmental disabilities.

(4) The advisory committee shall (a) provide sufficient oversight to ensure that persons placed in the custody of the department under the Developmental Disabilities Court-Ordered Custody Act are receiving the least restrictive treatment and services necessary, (b) oversee the design and implementation of the quality management and improvement plan described in section 83-1216.01, and (c) assist, provide feedback, and guide the implementation of the family support program under section 68-1530.

(5) The department shall inform the advisory committee of proposed systemic changes to services for persons with developmental disabilities at least thirty days prior to implementation of the changes so that the advisory committee may provide for a response to the proposed changes. If the director determines that circumstances require implementation of the changes prior to such notice, the department shall inform the advisory committee as soon as possible. The advisory committee, in partnership with the director, shall establish criteria for the process of providing the information and receiving the response.

The department shall carry out the authority granted to it pursuant to section 68-1204 and shall comply with all applicable provisions of the federal act identified in such section and of sections 68-1202 to 68-1210.

(1) The department shall administer the medicaid home and community-based services waivers upon application approval by the federal Centers for Medicare and Medicaid Services. The amount of funding for any person receiving services shall be determined using an objective assessment process developed by the department and approved by the federal Centers for Medicare and Medicaid Services.

(2) The department shall provide directly or by contract service coordination to Nebraska residents found to be eligible for specialized services.

(3) It is the intent of the Legislature that the department take all possible steps to maximize federal funding. All Nebraska residents eligible for funding for specialized services through the department shall apply for and accept any federal medicaid benefits for which they may be eligible and benefits from other funding sources within the department, the State Department of Education, specifically including the Division of Rehabilitation Services, and other agencies to the maximum extent possible.

(4) The priorities for funding the medicaid home and community-based services waivers under this section are as follows:

(a) The first funding priority of the state shall be responding to the needs of persons with developmental disabilities in immediate crisis due to caregiver death, homelessness, or a threat to the life and safety of the person;

(b) The second funding priority of the state in responding to the needs of persons with developmental disabilities shall be for persons that have resided in an institutional setting for a period of at least twelve consecutive months and who are requesting community-based services;

(c) The third funding priority of the state in responding to the needs of persons with developmental disabilities shall be for serving wards of the department or persons placed under the supervision of the Office of Probation Administration by the Nebraska court system who are transitioning upon age nineteen with no other alternatives as determined by the department to support residential services necessary to pursue economic self-sufficiency;

(d) The fourth funding priority of the state in responding to the needs of persons with developmental disabilities shall be for serving persons transitioning from the education system upon attaining twenty-one years of age to maintain skills and receive the day services necessary to pursue economic self-sufficiency;

(e) The fifth funding priority of the state in responding to the needs of persons with developmental disabilities shall be, upon approval by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services, for serving a dependent of a member of the armed forces of the United States who is a legal resident of this state due to the service member's military assignment in Nebraska; and

(f) The sixth funding priority of the state in responding to the needs of persons with developmental disabilities shall be for serving all other persons by date of application.

(1)(a) The department shall, with the assistance and support of the Advisory Committee on Developmental Disabilities, develop and implement a quality management and improvement plan to promote and monitor quality relating to services and quality of life for persons with developmental disabilities.

(b) The purpose of the quality management and improvement plan is to provide information necessary for an accurate assessment of the quality and effectiveness of services for persons with developmental disabilities and their families and the delivery of such services, with special attention to the impact that the services have on the quality of life of recipients and their families.

(c) The quality management and improvement plan shall reflect national best practice for services for persons with developmental disabilities and their families as determined by the department with the assistance of the advisory committee.

(d) The quality management and improvement plan shall assess, through both quantitative and qualitative means, (i) the quality of services provided to persons with developmental disabilities and their families, (ii) the ability of the services provided to meet the needs of the recipients of the services, (iii) the effect of the services to support or improve the quality of life of the recipients of the services, and (iv) the satisfaction of the recipients with the process of determination of eligibility and the process of delivery of the services. In order to develop the quality management and improvement plan, the department shall use procedures to collect data from recipients of services for persons with disabilities and their families by relying on external, independent evaluators who are not employed by the department. The quality management and improvement plan shall give significance to input gathered from recipients of services for persons with developmental disabilities and families of such recipients and include information gathered from the department.

(e) The quality management and improvement plan shall include recommendations for improvements to the types of services and the delivery of services for persons with developmental disabilities and their families.

(2) The department shall provide a quality management plan electronically to the Legislature no later than September 30, 2017. In the plan the department shall detail its approach to ensuring a sustainable, continuous, quality improvement management system for the delivery of services for persons with developmental disabilities and their families that incorporates responsibilities of the department and recipients.

(3) The department shall issue an implementation report regarding the quality management and improvement plan and publish it on the website of the department and provide it electronically to the Legislature on or before December 30, 2017, and March 30, 2018. Beginning in 2018, the department shall annually provide a report regarding outcomes, improvement priorities, and activities of the department during the previous fiscal year. The report shall be published on the website of the department and shall be provided electronically to the Legislature on or before September 30.

(1) If the department determines that there are not enough funds available to provide services to all eligible individuals under subdivision (4)(d) of section 83-1216, the department shall provide day services to individuals who:

(a) Are transitioning from the education system upon attaining twenty-one years of age on or after July 1, 2019; and

(b) Are determined by the department to be otherwise eligible for the day services in accordance with the Developmental Disabilities Services Act.

(2) The department shall provide services comparable to the day services the individual would have received pursuant to subdivision (4)(d) of section 83-1216 if funds were available.

(3) No later than September 15 of each year, the director shall provide electronic notification to the Health and Human Services Committee of the Legislature and the Appropriations Committee of the Legislature of the estimated number of individuals needing services under subsection (4) of section 83-1216 and the net additional resources necessary to provide services to all eligible individuals under subsection (4) of section 83-1216 other than subdivision (f) of such subsection.

(4) This section terminates June 30, 2025.

The department shall contract for specialized services and shall only contract with specialized programs which meet certification and accreditation requirements. Assisted services provided under this section through community-based developmental disability programs shall be reimbursed on a daily rate basis, including such services provided to eligible recipients under the medical assistance program established in section 68-903 upon approval for such reimbursement from the federal Centers for Medicare and Medicaid Services. The department shall apply to the federal Centers for Medicare and Medicaid Services for approval of any necessary waiver amendments to permit such reimbursement and shall begin reimbursing such services on a daily rate basis no later than March 1, 2011. In order to be certified, each specialized program shall:

(1) Have an internal quality assurance process;

(2) Have a program evaluation component;

(3) Have a complaint mechanism for persons with developmental disabilities and their families;

(4) Have a process to ensure direct and open communication with the department;

(5) Develop, implement, and regularly evaluate a plan to ensure retention of quality employees and prevent staff turnover;

(6) Have measures to enhance staff training and development;

(7) Be governed by a local governing board or have an advisory committee, the membership of which consists of (a) persons with developmental disabilities, (b) family members or legal guardians of persons with developmental disabilities, and (c) persons who are interested community members;

(8) Meet accreditation standards developed by the department;

(9) Require a criminal history record information check of all employees hired on or after September 13, 1997, who work directly with clients receiving services and who are not licensed or certified as members of their profession; and

(10) Meet any other certification requirements developed by the department to further the purposes of the Developmental Disabilities Services Act.

(1) Each employee of state-operated services and facilities providing developmental disabilities services shall be subject to the criminal history record information check requirements of subdivision (9) of section 83-1217 and shall file a complete set of his or her legible fingerprints with the department. The department shall transmit such fingerprints to the Nebraska State Patrol which shall transmit a copy of the applicant's fingerprints to the Identification Division of the Federal Bureau of Investigation for a national criminal history record information check.

(2) The national criminal history record information check shall include information concerning the employee from federal repositories of such information and repositories of such information in other states if authorized by federal law for use by the department.

(3) The Nebraska State Patrol shall undertake a search for Nebraska criminal history record information concerning the employee. The Nebraska State Patrol shall issue a report to the department which contains the results of the criminal history record information check conducted by the Nebraska State Patrol.

(4) Criminal history record information subject to federal confidentiality requirements shall remain confidential and may be released only upon the written authorization of the employee.

(5) The department, in cooperation with the Nebraska State Patrol, shall adopt and promulgate rules and regulations to carry out this section.

The local governing board for a specialized program shall:

(1) Organize and supervise the delivery of specialized services within its governance;

(2) Cause such services to be provided;

(3) Report annually to the director regarding the expenditure of funds and the evaluation of specialized services rendered during the preceding year; and

(4) Ensure compliance with the certification and accreditation requirements of section 83-1217 and all applicable rules and regulations of the department.

A person with developmental disabilities or his or her parent or guardian may initiate a hearing on matters related to the initiation, change, or termination of or the refusal to initiate, change, or terminate the determination of eligibility for specialized services or the evaluation or placement of the person or the provision of specialized services or records relating thereto. A copy of the procedures specified in rules and regulations of the department for complaints and hearings under this section shall be provided to such persons who are receiving specialized services or their parents or guardians. The hearing shall be initiated by filing a petition with the department.

The department shall conduct hearings initiated under section 83-1219 using hearing officers. The department may employ, retain, or approve such qualified hearing officers as are necessary to conduct the hearings. The hearing officers shall not be persons who are employees or officers of a local agency which is involved in providing services to the person with developmental disabilities. A person who otherwise qualifies to conduct a hearing shall not be considered an employee of the agency solely because the person is paid by the agency to serve as a hearing officer. No hearing officer shall participate in any way in any hearing or matter in which the hearing officer may have a conflict of interest. The department shall have exclusive original jurisdiction over cases arising under sections 83-1219 to 83-1224, and in no event shall juvenile courts have jurisdiction over such matters.

Upon the receipt of a petition pursuant to section 83-1219, the department shall assign it to a hearing officer. The hearing officer shall receive all subsequent pleadings and shall conduct the hearing. At the hearing the parties shall present evidence on the issues raised in the pleadings. At the completion of the proceedings, the hearing officer shall prepare a report based on the evidence presented containing recommendations for the director to make findings of fact and conclusions of law. Within forty-five days after the receipt of a request for a hearing, the director shall prepare a final decision and order directing such action as may be necessary. At the request of either party for good cause shown, the hearing officer may grant specific extensions of time beyond this period. The report and the final decision and order shall be delivered to each party or attorney of record by certified mail.

Any party at a hearing conducted pursuant to section 83-1219 shall have the right to:

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the needs of persons with developmental disabilities;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing;

(4) Obtain a written or electronic verbatim record of the hearing; and

(5) Obtain written findings of fact and decisions from the director.

The hearing officer may also produce evidence on his or her own motion.

The hearing officer shall have the power by subpoena to compel the appearance of witnesses and the production of any relevant evidence. Any witness compelled to attend or produce evidence shall be entitled to the fees and expenses allowed in district court. Any failure to respond to such subpoena shall be certified by the director to the district court of Lancaster County for enforcement or for punishment for contempt of the district court.

(1) Any party aggrieved by the findings, conclusions, or final decision and order of the director shall be entitled to judicial review under this section. Any party of record also may seek enforcement of the final decision and order of the director pursuant to this section.

(2) Proceedings for judicial review shall be instituted by filing a petition in the district court of Lancaster County within thirty days after service of the final decision and order on the party seeking such review. All parties of record shall be made parties to the proceedings. The court, in its discretion, may permit other interested parties to intervene.

(3) The filing of a petition for judicial review to such district court shall operate to stay the enforcement of the final decision and order of the director. While judicial proceedings are pending in district court and unless the parties otherwise agree, the person with developmental disabilities shall remain in his or her current placement. If the health or safety of the person with developmental disabilities or of other persons would be endangered by delaying a change in placement, the service provider may make such change without prejudice to the rights of any party.

(4) Within thirty days after receiving notification that a petition for judicial review has been filed or, if good cause is shown, within such further time as the court may allow, the department shall prepare and transmit to the court a certified transcript of the proceedings before the hearing officer.

(5) Judicial review shall be heard de novo on the record. The court shall receive the records of the administrative proceedings, base its decision on the preponderance of the evidence, and grant such relief as the court determines is appropriate. The district court may affirm, reverse, or modify the decision of the director, or remand the case to the director for further proceedings, including the receipt of additional evidence, for good cause shown.

(6) An aggrieved party may secure a review of any final judgment of the district court under this section by appeal to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals in civil cases and shall be heard de novo on the record.

(7) When no petition for judicial review or other civil action is filed within thirty days after service of the final decision and order on all of the parties, the director's final decision and order shall become effective. Proceedings for enforcement of the director's final decision and order shall be instituted by filing a petition for appropriate relief in the district court of Lancaster County within one year after the date of the director's final decision and order.

Each school district shall provide transition services for each student with a developmental disability no later than when the student reaches fourteen years of age and until the student graduates from a special education program or no longer meets the definition of a child with a disability pursuant to section 79-1117. Transition services shall consist of a coordinated set of activities for a student, designed within an outcome-oriented process, which promotes movement from school to postschool activities, including postsecondary education, vocational training, integrated employment, continuing and adult education, adult services, independent living, and community participation. The coordinated set of activities shall be based upon the individual student's needs, taking into account the student's preferences and interests, and shall include instruction, community experiences, the development of employment and other postschool adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation. The transition team shall designate one or more specialized service providers to develop a plan for the student's transition to adult specialized services.

The department shall adopt and promulgate rules and regulations to carry out the Developmental Disabilities Services Act.