AS Title 47, Chapter 80: Persons with Disabilities

Article 1. Rights. Chapter 80. Persons with Disabilities. Sec. 47.80.010. Rights of persons with disabilities. Persons with disabilities have the same legal rights and responsibilities guaranteed all other persons by the Constitution of the United States and federal laws and by the constitution and laws of the state. An otherwise qualified person may not be excluded, by reason of having a disability, from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity that receives public funds. Some persons with disabilities may be unable, due to the severity of their disability, to exercise for themselves all of their rights in a meaningful way; for others modification of some or all of their rights is appropriate. The procedure used for modification of rights must contain proper legal safeguards against every form of abuse, must be based on an evaluation of the social capability of the person by qualified experts, and must be subject to periodic reviews and to the right of appeal to higher authorities. Sec. 47.80.020. Protection and advocacy of rights. The department shall establish a system to protect and advocate rights of persons with disabilities. The system (1) has the authority to pursue legal, administrative, and other appropriate remedies to assure the protection of the rights of persons with disabilities; and (2) shall be independent of any state agency that provides treatment, services, or habilitation of persons with disabilities. Article 2. Programs and Plans. Sec. 47.80.100. Programs for persons with disabilities. (a) The Department of Health, the Department of Education and Early Development, and other departments of the state as appropriate, shall, in coordination, plan, develop, and implement a comprehensive system of services and facilities for persons with disabilities that is consistent with the state plan adopted under AS 44.29.660 (5) and is dispersed geographically within the state. (b) The services required in (a) of this section are specialized services or special adaptations of services available to the general population and shall be directed toward the social, personal, physical, or economic habilitation or rehabilitation of persons with disabilities. (c) Within the limits of appropriations and other available funds, the appropriate department may itself provide the services and establish, operate, and maintain the facilities required under (a) and (b) of this section, or it may provide the services or facilities entirely or in part through contractual arrangements with public or private agencies. Sec. 47.80.110. Program principles. The system of services and facilities required under AS 47.80.100 shall accord with the principles that service providers shall (1) make services available at times and locations that enable residents of the provider's service area to obtain services readily; (2) ensure each client's right to confidentiality and treatment with dignity; (3) establish staffing patterns that reflect the cultural, linguistic, and other social characteristics of the community and that incorporate multidisciplinary professional staff to meet client functional levels and diagnostic and treatment needs; (4) promote client and family participation in formulating, delivering, and evaluating treatment and rehabilitation; (5) design treatment and habilitation to maximize individual potential and minimize institutionalization; and (6) provide services in the least restrictive setting, enabling a person to live as normally as possible within the limitations of the disability. Sec. 47.80.120. Habilitation plans. A state agency, contractor, or grantee who is directly responsible for providing services to persons with disabilities shall develop an individual habilitation plan for each person whose program of services utilizes state funds. The plan shall be completed in writing and furnished to the department within 30 days of admission of a client to the program of services. The plan, its renewals, and any changes of it shall have the written concurrence of the client, or the client's parent or guardian when appropriate, and the agency or contractor responsible for providing services. The development and content of a plan shall conform to requirements established by the department by regulation. Insofar as practicable, the requirements shall conform to those established for individual habilitation plans under P.L. 91-517 or P.L. 94-103, as amended. Each plan shall be time-limited, evaluated, and renewed at least annually. Sec. 47.80.130. Powers and duties of the department. (a) The department shall (1) develop budgets and receive and distribute appropriations and funds under this section; (2) adopt regulations regarding standards of services and facilities for persons with disabilities and the quality of services and the process by which services are to be delivered; (3) adopt any other regulations necessary to implement this chapter; (4) provide technical assistance to public and private agencies in planning, developing, and implementing programs to serve persons with disabilities; (5) operate programs and facilities and enter into agreements, contracts, or grants necessary to provide services required under this chapter; (6) take the actions and undertake the obligations that are necessary to participate in federal grant-in-aid programs and accept federal or other financial aid for the study, examination, care, and treatment of persons with disabilities; (7) take a flexible approach to administering programs for persons with disabilities that allows each person to participate actively, with assistance based on the person's strengths and abilities, in managing the person's support services so that the person can achieve a meaningful life in the person's home, job, and community. (b) For purposes of P.L. 91-517 and P.L. 94-103, as amended, the department is designated the sole administering agency; it shall make applications for, receive, and expend grants under P.L. 91-517 or P.L. 94-103, as amended, and otherwise exercise the powers and perform the duties and functions necessary to comply with P.L. 91-517 and P.L. 94-103, as amended. (c) The Department of Education and Early Development may make applications for, receive, and expend grants under P.L. 91-230 (The Education for the Handicapped Act), as amended, and otherwise exercise the powers and perform the functions necessary to comply with that Act. (d) When state funding is not adequate to meet service needs, the department shall establish a waiting list for persons with developmental disabilities who would be eligible to receive state-funded services under AS 47.80.100 — 47.80.170 if adequate state funding were available. The department shall, on an annual basis, review the waiting list and submit a report to the governor containing the information required under this subsection. The department shall send a copy of the report to the persons chairing the house and senate finance committees and the persons chairing the house and senate health, education and social services committees and shall notify the full legislature that the report is available to all legislators. The report must (1) describe the purpose for the waiting list and the strategies used to notify persons about the waiting list, and must include a copy of the information used by the department to inform individuals and families about their rights and responsibilities under AS 47.80.100 — 47.80.170; (2) explain how an individual is placed on the waiting list, what criteria determine rank on the list, and how the waiting list is used to select individuals equitably and fairly across the state; (3) give the basic demographic information across all regions about the age, sex, and racial and ethnic background of the individuals on the waiting list; (4) identify the level of need and preferences of the individuals and families on the waiting list for the services and the supports that may be necessary to meet their needs and project an annual cost to meet this need; (5) identify how many individuals were removed from the waiting list during the 12 months covered by the report, why they were removed from the list, and how long the individuals had been waiting for services or supports before they were removed from the list; (6) list the number of individuals who have been on the waiting list for 90 days or more with an account of the department's steps to regularly review each individual's status while waiting for services or supports; (7) report annual data from the Department of Education and Early Development about the number of students in special education with developmental disabilities graduating from high school, dropping out of high school before reaching age 22, or reaching age 22 without graduating from high school; and (8) indicate that written or electronic copies of policies, manuals, and procedures used by the department to implement AS 47.80.100 — 47.80.170 are available. Sec. 47.80.135. Gainful employment of persons with disabilities. (a) When carrying out duties under AS 47.80.130 related to the provision of services to a person with a disability, the department's primary objective and preferred outcome is to help the person become gainfully employed in the general workforce of the public or private sector in an integrated workplace where persons with disabilities work with and alongside of persons without disabilities. (b) By December 31 of each year, the commissioner of health shall provide to the Alaska Mental Health Trust Authority established by AS 44.25.200 a report on the department's progress toward the objective under (a) of this section. (c) In this section, “gainfully employed” means employed full time or part time for compensation that is (1) at or above the minimum wage; and (2) not less than the compensation paid by the employer for the same or similar work performed by a person who is not disabled. Sec. 47.80.140. Licensing and certificates of need. (a) A person may not establish or operate a residential facility until the facility has been licensed under AS 47.32 . (b) A certificate of need is required as a prerequisite for the licensing of a residential facility established after July 1, 1978, and not otherwise provided for in AS 18.07.031 — 18.07.111. A certificate shall be issued and regulated in the same manner as provided in AS 18.07.031 — 18.07.111 for certificates of need for health care facilities. This subsection does not apply to an assisted living home licensed under AS 47.32 . Sec. 47.80.150. Liability for expense of services. (a) A person with a disability or the person's legal representative acting in a representative capacity, the person's spouse, or the person's parents if the person is a minor shall pay or contribute to the payment of the charges for the care or treatment in accordance with the fee schedule adopted under AS 44.29.022 . The order of the department relating to the payment of charges shall be prospective in effect and may relate only to charges to be incurred, except that, if a person intentionally conceals ability to pay, the person shall be ordered to pay to the extent of the person's ability to pay the charges accruing during the period of the concealment. The order of the department relating to the payment of charges by the person with a disability or the person's legal representative, or the person's spouse or parents, shall be issued within six months of the date on which the charge was incurred. The department may make necessary investigations to determine the ability to pay. The order shall remain in full force and effect unless modified by subsequent court or department orders. (b) As used in (a) of this section, the term “actual cost of the care and treatment” means the lesser of (1) the rate provided for by a contract entered into under this chapter, (2) the fee established under AS 44.29.022 for services provided under this chapter, or (3) if the person is under the age of 18, the cost of care of a person of the same age who is not a person with a disability and who resides with a parent or guardian, and includes expenses of transportation incidental to treatment and carrying out the intent of this chapter. In establishing fees for services under this chapter, the commissioner shall consider the income and family size of the responsible party, age of the person receiving the services, and other factors that relate to the ability to pay. Fees may not exceed the actual cost of the care or treatment. (c) [Repealed, § 101 ch 138 SLA 1986.] (d) The department may charge, or accept money or property from a person, for the care or treatment of an inpatient or outpatient or for other purposes, even if the payment is not required by an order of the department. The total payments received may not exceed the actual cost of care or treatment. (e) All money paid to the department by the person with a disability or on the person's behalf, under this section, shall be deposited in the general fund. (f) If an order of payment is entered by the department under this section and delinquency in the payment of any amount due the state under the order continues for a period of more than 30 days after the notification by the department to the person, the legal representative, parent, or spouse of the person with a disability, the state may proceed to collect the amounts due by appropriate proceedings. Actions to enforce the collection of payments may only be brought within three years after the date of notification of a delinquent payment. (g) [Repealed, § 28 ch 90 SLA 1991.] Sec. 47.80.160. Transportation. When an individual is to be treated under this chapter, the department shall arrange, upon the request of a person having a proper interest in the individual's treatment, and may pay for the individual's transportation to the designated facility, with appropriate medical or nursing attendants and by the available means that are appropriate and suitable. The department may pay return transportation of an individual and appropriate medical and nursing attendants. When practicable, one or more relatives or friends of the individual to be treated shall be permitted to accompany the individual. The department may pay necessary travel, housing, and meal expenses incurred by one relative or friend in accompanying the individual to the facility if the department determines (1) that the best interests of the individual's health require that the individual be accompanied by the relative or friend; (2) the relative or friend accompanying the individual is indigent. Sec. 47.80.170. Provision for personal needs upon discharge. The department shall make arrangements which are necessary to ensure that (1) no patient is discharged or placed on convalescent status from a designated facility without suitable clothing; and (2) an indigent patient discharged or placed on convalescent status is furnished suitable transportation to the patient's permanent residence in this state or other suitable place at the discretion of the department, and a reasonable amount of money to meet immediate needs. Secs. 47.80.200 — 47.80.290. Self-sufficiency trust fund. [Repealed, § 12 ch 42 SLA 1997.] Article 3. Teachers Who Teach the Use of Certain Aids or Devices for the Blind or Visually Impaired. Sec. 47.80.400. Qualifications for teaching the use of certain aids or devices for the blind or visually impaired. (a) A person who is employed to teach the use of orientation and mobility aids or assistive technology devices to students who are 16 years of age or older and who are blind or visually impaired may not receive payment from the state or a political subdivision of the state unless the person meets the training and experience requirements established by the department under this section. (b) The department shall, by regulation, establish minimum requirements for training and experience of persons who teach the use of orientation and mobility aids or assistive technology devices to students who are 16 years of age or older and who are blind or visually impaired. The department shall consider the standards adopted by national organizations that provide services to the blind and visually impaired when setting requirements under this section. Article 4. Traumatic or Acquired Brain Injury. Sec. 47.80.500. Statewide traumatic or acquired brain injury program. (a) A statewide traumatic or acquired brain injury program is established in the department for the purpose of evaluating the effectiveness and availability of information and services for the prevention and treatment of traumatic or acquired brain injury in the state. The department shall consult and collaborate with state agencies, private nonprofit entities, and other organizations in the state that provide brain injury services in implementing all aspects of the program. (b) The program established under this section must include (1) review and consideration of data collected under (c)(1) of this section; (2) supervision and coordination of services provided to persons with traumatic or acquired brain injury; (3) evaluation of standards pertaining to the treatment, care, and support of persons with traumatic or acquired brain injury; (4) assessment of the availability of acute and long-term treatment, care, and support options in and outside the state for persons with traumatic or acquired brain injury; (5) evaluation of the need for and scope of community services for persons with traumatic or acquired brain injury throughout the state; (6) investigation of the models of service coordination that can be replicated at a local level in the state; (7) coordination and expansion of publicly and privately funded residential and nonresidential acute and long-term services to persons with traumatic or acquired brain injury, including education, referral, and home and community-based services; (8) facilitation of admissions to and discharges from acute and long-term care facilities for the treatment of traumatic or acquired brain injury; (9) identification and description of available treatment and care facilities of all types for persons with traumatic or acquired brain injury based on length of stay, patient capacity, available services, and barriers encountered to community placement after discharge; (10) a plan that describes recommendations for the development of a statewide service delivery continuum of comprehensive rehabilitative, supportive living, and community programs. (c) The department shall (1) establish and implement a traumatic or acquired brain injury registry of information from service providers that includes (A) health status, including age, cause, and severity of injury and region of brain affected; (B) acute recovery period; (C) location of the (i) event that caused the injury; (ii) hospital treating the injury; and (iii) residence of the person with traumatic or acquired brain injury; (D) access to and use of rehabilitation services, including behavioral, vocational, and long-term care services; (E) access to and use of neuropsychological assessment; (F) status of long-term recovery at five-year intervals; (G) financial and social effects on family; (H) cost associated with services; (2) establish standards and recommendations for improvement of prevention, assessment, treatment, and care of persons with traumatic or acquired brain injury in the state; (3) contract with service providers and qualified entities to carry out the purposes of this section; (4) provide a standardized reporting form for use in gathering data for the registry. (d) In (c) of this section, “service provider” means a public or private entity that provides health education, group shelter, or criminal justice services to individuals in the state. Sec. 47.80.529. Definition. In AS 47.80.500 — 47.80.529, “traumatic or acquired brain injury” means an insult from physical force or internal damage to the brain or its coverings, not of a degenerative or congenital nature, that produces an altered mental state and that results in a decrease in cognitive, behavioral, emotional, or physical functioning. Article 5. General Provisions. Sec. 47.80.900. Definitions. In this chapter, (1) “council” means the Governor's Council on Disabilities and Special Education created by AS 44.29.600 ; (2) “department” means the Department of Health; (3) “facilities for persons with disabilities” means publicly or privately operated facilities, or specified portions of facilities, designed primarily for the delivery of services to those persons; the term includes residential facilities; (4) “habilitation” means education or training for persons with disabilities to enable them to function better in society; (5) “least restrictive setting” means a residential or other setting for meeting the needs of a person with a disability that requires the least amount of restriction of personal liberty by enabling the person to function in as normal an environment as possible and to live as normally as possible, within the limitations of the disability; (6) “person with a developmental disability” means a person who is experiencing a severe, chronic disability that (A) is attributable to a mental or physical impairment or combination of mental and physical impairments; (B) is manifested before the person attains age 22; (C) is likely to continue indefinitely; (D) results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency; and (E) reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated; (7) “person with a disability” means a person with a developmental disability as defined in (6) of this section or a person who is hard of hearing, deaf, speech impaired, visually impaired, seriously emotionally disturbed, orthopedically or otherwise health impaired, or who has a specific learning disability; the term includes a child with a disability as defined in AS 14.30.350 ; (8) “residential facility” means a publicly or privately operated facility that provides 24-hour care for four or more persons with disabilities, excluding family, foster family, or adoptive homes; (9) “substantial disability” means a disability that prevents or substantially impedes the person's participating in and benefiting from the social, economic, educational, recreational, or other opportunities generally available to peers in the community who are not similarly disabled.