Chapter 13. Citizens with Intellectual Disabilities.
Subchapter I. Statement of Purpose; Definitions.
§ 7–1301.01. [Reserved].
§ 7–1301.02. Statement of purpose.
(a) It is the intent of the Council of the District of Columbia to:
(1) Assure that residents of the District of Columbia with intellectual or developmental disabilities shall have all the civil and legal rights enjoyed by all other citizens of the District of Columbia and the United States;
(2) Secure for each resident of the District of Columbia with intellectual or developmental disabilities, regardless of ability to pay, such habilitation as will be suited to the needs of the person, and to assure that such habilitation is skillfully and humanely provided with full respect for the person’s dignity and personal integrity and in a setting least restrictive of personal liberty;
(3) Encourage and promote the development of the ability and potential of each person with intellectual or developmental disabilities in the District to the fullest possible extent, no matter how severe his or her degree of disability;
(4) Promote the economic security, standard of living and meaningful employment of persons with intellectual or developmental disabilities;
(5) Maximize the assimilation of persons with intellectual or developmental disabilities into the ordinary life of the community in which they live; and
(6) Provide a mechanism for the identification of persons with intellectual or developmental disabilities at the earliest age possible.
(b) To accomplish these purposes, the Council of the District of Columbia finds and declares that the design and delivery of care and habilitation services for persons with intellectual or developmental disabilities shall be directed by the principles of normalization, and therefore:
(1) Community-based services and residential facilities that are least restrictive to the personal liberty of the person shall be established for persons with intellectual or developmental disabilities at each stage of life development;
(2) The use of institutionalization shall be abated to the greatest extent possible;
(3) Whenever care in an institution or residential facility is required, it shall be in the least restrictive setting; and
(4) Persons placed in institutions shall be transferred to community or home environments whenever possible, consistent with professional diagnoses and recommendations.
§ 7–1301.03. Definitions.
As used in this chapter:
(1) Repealed.
(1A) "Adult" means a person who is at least 18 years of age.
(1B) “Advanced practice registered nurse” includes a nurse-practitioner or clinical nurse specialist, licensed pursuant to § 3-1202.04 and Chapter 59 or Chapter 60 of Title 17 of the District of Columbia Municipal Regulations, who has been certified as a specialist in psychiatry and mental health.
(1C) “Advocate for a person with an intellectual disability” means a member of the group of advocates created pursuant to § 7-1304.13.
(2) “At least a moderate intellectual disability” means a person who is found, following a comprehensive evaluation, to be impaired in adaptive behavior to a moderate, severe or profound degree and functioning at the moderate, severe or profound intellectual level in accordance with standard measurements as recorded in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.
(2A) “Behavioral plan” means a written plan that, at a minimum:
(A) Identifies challenging or problematic behavior;
(B) States the working hypothesis about the cause of the person’s behavior and uses the working hypothesis as the basis for the selected intervention;
(C) Identifies strategies to teach or encourage the person to adopt adaptive behavior as an alternative to the challenging or problematic behavior;
(D) Considers the potential for environmental or programmatic changes that could have a positive impact on challenging or problematic behaviors; and
(E) Addresses the person’s need for additional technological or supervisory assistance to adapt or cope with day-to-day activities.
(2B) “Best interests” means promoting personal well-being by assessing:
(A) The reason for the proposed action, its risks and benefits, and any alternatives considered and rejected; and
(B) The least intrusive, least restrictive, and most normalizing course of action possible to provide for the needs of the person.
(2C) “Cause injury to others as a result of the person’s intellectual disability” means cause injury to others as a result of deficits in adaptive functioning associated with an intellectual disability.
(3) “Chief Program Director” means an individual with special training and experience in the diagnosis and habilitation of persons with intellectual disabilities, and who is a qualified developmental disability professional appointed or designated by the Director of a facility for persons with intellectual disabilities to provide or supervise habilitation and care for residents of the facility.
(3A) "Close friend" means any adult who has exhibited significant care and concern for the person and has maintained regular contact with the person so as to be familiar with the person's activities, health, and religious and moral beliefs.
(4) "Commitment" means the process whereby a person becomes a ward of the District through Court proceedings under this chapter.
(5) "Community-based services" means specialized or generic services for the evaluation, care and habilitation of persons with intellectual or developmental disabilities, in a community setting, directed toward the intellectual, social, personal, physical, emotional, or economic development of a person with an intellectual or developmental disability. The services shall include diagnosis, evaluation, treatment, day habilitation, training, education, supported employment, recreation, counseling of the person with an intellectual or developmental disability and his or her family, protective and other social and socio-legal services, information and referral, and transportation to assure delivery of services to persons of all ages who have intellectual or developmental disabilities.
(5A) “Competent” means to have the mental capacity to appreciate the nature and implications of a decision to enter a facility, choose between or among alternatives presented, and communicate the choice in an unambiguous manner.
(6) “Comprehensive evaluation” means an assessment of a person with an intellectual disability by persons with special training and experience in the diagnosis and habilitation of persons with intellectual disabilities, which includes a documented sequence of observations and examinations intended to determine the person’s strengths, developmental needs, and need for services. The initial comprehensive evaluation shall include documentation of:
(A) A physical examination that includes the person’s medical history;
(B) An educational evaluation, vocational evaluation, or both;
(C) A psychological evaluation, including an evaluation of cognitive and adaptive functioning levels;
(D) A social evaluation;
(E) A dental examination;
(F) An evaluation by the interdisciplinary team of whether the person currently:
(i) Has the capacity to grant, refuse, or withdraw consent to any ongoing medical treatment; and
(ii) Has executed or could execute a durable power of attorney in accordance with § 21-2205; and
(G) A determination of whether the person has an individual reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210.
(7) “Council” means the Council of the District of Columbia.
(8) “Court” means the Superior Court of the District of Columbia.
(8A) “Crime of violence” has the same meaning as in § 23-1331(4).
(8B) Repealed.
(8C) “Department on Disability Services” or “DDS” means the Department on Disability Services established by § 7-761.03.
(8D) "Developmental disabilities" means a severe and chronic disability of a person that:
(A) Is attributable to a mental or physical impairment, other than the sole diagnosis of mental illness, or to a combination of mental and physical impairments;
(B) Is manifested before 22 years of age;
(C) Is likely to continue indefinitely;
(D) Results in substantial functional limitations in 3 or more of the following areas of major life activity:
(i) Self-care;
(ii) Understanding and use of language;
(iii) Functional academics;
(iv) Social skills;
(v) Mobility;
(vi) Self-direction;
(vii) Capacity for independent living; or
(viii) Health and safety; and
(E) Reflects the person'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 person-centered, planned and coordinated.
(9) Repealed.
(10) “Director” means the administrative head of a facility, or community-based service and includes superintendents.
(11) “District” means the District of Columbia government.
(11A) “DSM-IV” means the most recent version of the Diagnostic and Statistical Manual of Mental Disorders.
(11B) “DSM-IV ‘V” Codes” means “V” codes as defined in the most recent version of the Diagnostic and Statistical Manual of Mental Disorders.
(12) “Education” means a systematic process of training, instruction and habilitation to facilitate the intellectual, physical, social and emotional development of a person with an intellectual or developmental disability.
(13) “Facility” means a public or private residence, or part thereof, which is licensed by the District as a skilled or intermediate care facility or a community residential facility (as defined in D.C. Regulation 74-15, as amended) and also includes any supervised group residence for persons with intellectual or developmental disabilities under 18 years of age. For persons committed or for whom commitment may be sought under § 7-1304.06a, the term “facility” may include a physically secure facility or a staff-secure facility, within or without the District of Columbia. The term “facility” does not include a jail, prison, other place of confinement for persons who are awaiting trial or who have been found guilty of a criminal offense, or a hospital for people with mental illness within the meaning of § 24-501.
(14) “Habilitation” means the process by which a person is assisted to acquire and maintain those life skills which enable him or her to cope more effectively with the demands of his or her own person and of his or her own environment, including, in the case of a person committed under § 7-1304.06a, to refrain from committing crimes of violence or sex offenses, and to raise the level of his or her physical, intellectual, social, emotional and economic efficiency. “Habilitation” includes, but is not limited to, the provision of community-based services.
(14A) “Human Rights Advisory Committee” means the committee of the Department on Disability Services that provides guidance and oversight regarding matters pertaining to the human rights of persons receiving services through the Department on Disability Services and reviews allegations of human rights violations.
(14B) “ICD-9-CM” means the most recent version of the International Classification of Diseases Code Manual.
(14C) “Person found incompetent in a criminal case” means a person who:
(A) Has at least a mild intellectual disability;
(B) Is charged with a crime of violence or sex offense;
(C) Has been found incompetent to stand trial, or to participate in sentencing or transfer proceedings; and
(D) Has been found not likely to gain competence in the foreseeable future.
(15) “Informed consent” means consent voluntarily given in writing with sufficient knowledge and comprehension of the subject matter involved to enable the person giving consent to make an understanding and enlightened decision, without any element of force, fraud, deceit, duress or other form of constraint or coercion.
(15A) "Intellectual disability" or "persons with intellectual disabilities" means a person diagnosed before 22 years of age with an intellectual disability as set forth in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
(16) “Least restrictive alternative” means that living and/or habilitation arrangement which least inhibits a person’s independence and right to liberty. It shall include, but not be limited to, arrangements which move a person from:
(A) More to less structured living;
(B) Larger to smaller facilities;
(C) Larger to smaller living units;
(D) Group to individual residences;
(E) Segregated from the community to integrated with community living and programming; and/or
(F) Dependent to independent living.
(17) “Mayor” means the Mayor of the District of Columbia.
(17A) “Mental illness” means a diagnosable mental, behavioral, or emotional disorder (including those of biological etiology) which substantially impairs the mental health of the person or is of sufficient duration to meet diagnostic criteria specified within the DSM-IV or its ICD-9-CM equivalent (and subsequent revisions) with the exception of DSM-IV “V” codes, substance abuse disorders, intellectual disability, and other developmental disorders, or seizure disorders, unless those exceptions co-occur with another diagnosable mental illness.
(18) Repealed.
(19) Repealed.
(19A) Repealed.
(20) “Normalization principle” means the principle of aiding persons with intellectual or developmental disabilities to obtain a lifestyle as close to normal as possible, making available to them patterns and conditions of everyday life which are as close as possible to the patterns of mainstream society.
(20A) “Psychotropic medication” means a medication prescribed for the treatment of symptoms of mental or emotional disorders or to influence and modify behavior, cognition, or affective state. The term “psychotropic medication” includes the following categories of medications:
(A) Antipsychotics or neuroleptics;
(B) Antidepressants;
(C) Agents for control of mania or depression;
(D) Antianxiety agents;
(E) Sedatives, hypnotics, or other sleep-promoting drugs; and
(A) A psychologist with at least a master’s degree from an accredited program and with specialized training or 1 year of experience in intellectual disabilities; or
(B) A physician licensed by the Commission on Licensure to Practice the Healing Arts to practice medicine in the District and with specialized training in intellectual disabilities or with 1 year of experience in treating persons with intellectual disabilities; or
(C) An educator with a degree in education from an accredited program and with specialized training or 1 year of experience in working with persons with intellectual disabilities; or
(D) A social worker with:
(i) A master’s degree from a school of social work accredited by the Council on Social Work Education (New York, New York), and with specialized training in intellectual disabilities or with 1 year of experience in working with persons with intellectual disabilities; or
(ii) With a bachelor’s degree from an undergraduate social work program accredited by the Council on Social Work Education who is currently working and continues to work under the supervision of a social worker as defined in sub-subparagraph (i) of this subparagraph, and who has specialized training in intellectual disabilities 1 year of experience in working with persons with intellectual disabilities; or
(E) A rehabilitation counselor who is certified by the Commission on Rehabilitation Counselor Certification (Chicago, Illinois) and who has specialized training in intellectual disabilities or 1 year of experience in working with persons with intellectual disabilities; or
(F) A physical or occupational therapist with a bachelor’s degree from an accredited program in physical or occupational therapy and who has specialized training or 1 year of experience in working with persons with intellectual disabilities; or
(G) A therapeutic recreation specialist who is a graduate of an accredited program and who has specialized training or 1 year of experience in working with persons with intellectual disabilities.
(21A) "Religious superior" means a bishop or a member of a religious order who, under the approved constitution, laws, statutes, bylaws, or rules of the religious order or community, exercises authority over the particular community or unit of the religious order to which the member of the religious order or community belongs.
(22) “Resident of the District of Columbia” means a person who maintains his or her principal place of abode in the District of Columbia, including a person with an intellectual or developmental disability who would be a resident of the District of Columbia if the person had not been placed in an out-of-state facility by the District. A person with an intellectual or developmental disability who is under 21 years of age shall be deemed to be a resident of the District of Columbia if the custodial parent of the person with an intellectual or developmental disability is a resident of the District of Columbia.
(23) Repealed.
(24) Repealed.
(24A) “Screening” means an assessment of a person with an intellectual disability in accordance with standards issued by the Accreditation Council for Services for People with Developmental Disabilities, which is designed to determine if a further evaluation of the person with an intellectual disability or other interventions are indicated.
(24C) “Substituted judgment” means making a decision that conforms as closely as possible with the decision that the person would have made, based upon knowledge of the beliefs, values, and preferences of the person.
(25) “Time out” means time out from positive reinforcement, a behavior modification procedure in which, contingent upon undesired behavior, the resident is removed from the situation in which positive reinforcement is available.
(26) “Transfer proceedings” means the proceedings pursuant to § 16-2307 to transfer a person less than 18 years of age from Family Court to Criminal Court in the Superior Court of the District of Columbia to face adult criminal charges.
Subchapter II. Determination of Need for Mental Retardation Facilities and Services in the District.
§ 7–1302.01. Determination of need for mental retardation facilities and services in the District. [Repealed]
Repealed.
Subchapter III. Commitments.
§ 7–1303.01. Competence of individual to refuse commitment.
(a) Repealed.
(b) The Court may commit a person pursuant to § 7-1304.06a irrespective of the person's competence to refuse such commitment.
§ 7–1303.02. Voluntary admission. [Repealed]
Repealed.
§ 7–1303.03. Application by individual for out-patient nonresidential habilitation. [Repealed]
Repealed.
§ 7–1303.04. Petition for commitment of individual 14 years of age or older filed by parent or guardian or by the District.
(a) Repealed.
(a-1)(1) Except as provided in subsection (b-1) of this section, no person shall be newly committed under this chapter on or after May 5, 2018.
(2) For a person committed by written petition of a parent or guardian before May 5, 2018, the continued commitment of the person shall be governed by § 7-1304.11(a).
(b) Repealed.
(b-1) For a person found incompetent in a criminal case, a written petition by the District may be filed with the Court to have the person committed to a facility. Upon the filing of the petition, the Court shall promptly conduct a hearing in accordance with the procedures set forth in subchapter IV of this chapter.
(c) The facility, its sponsoring agency, or the Department on Disability Services shall provide a written certification to the Court, before commitment to the facility is ordered, that the habilitation indicated by the individual habitation plan will be implemented.
§ 7–1303.05. Application by parent or guardian for nonresidential habilitation. [Repealed]
Repealed.
§ 7–1303.06. Petition for commitment of individual under 14 years of age filed by parent or guardian. [Repealed]
Repealed.
§ 7–1303.07. Immediate discharge from facility upon request by individual. [Repealed]
Repealed.
§ 7–1303.08. Discharge from commitment upon request by parent or guardian. [Repealed]
Repealed.
§ 7–1303.09. Transfer of individual from one facility to another.
(a) The Department on Disability Services may recommend to the Court that an individual committed to the facility be transferred to another facility if the Department on Disability Services determines that it would be beneficial and consistent with the habilitation needs of the individual to do so. Notice of the recommendation shall be served on the individual, the individual’s counsel, the individual’s parent or guardian who petitioned for the commitment and the individual’s advocate for a person with an intellectual disability, if one has been appointed. If the proposed transfer is determined by the Court to be a transfer to a more restrictive facility, a mandatory hearing shall be conducted promptly in accordance with the procedures established in subchapter IV of this chapter. If the Court determines that the proposed transfer would be to a less restrictive facility, a Court hearing shall be held only if the individual, the individual’s parent or guardian, or, in the case of an individual committed under § 7-1304.06a, the District requests a hearing by petitioning the Court in writing within 10 days of being notified by the Court of its determination. The hearing shall be held promptly following the request for the hearing. In deciding whether to authorize the transfer, the Court shall consider whether the proposed facility can provide the necessary habilitation and whether it would be the lease restrictive means of providing such habilitation. In the case of an individual committed under § 7-1304.06a, the Court shall also consider whether the proposed placement can provide sufficient supervision or security to prevent the individual from causing injury to others as a result of the individual’s intellectual disability. Due consideration shall be given to the relationship of the individual to his or her family, guardian, or friends so as to maintain relationships and encourage visits beneficial to the relationship.
(b) Repealed.
(c) Nothing in this section shall be construed to prohibit transfer of an individual to a health care facility without prior Court approval in an emergency situation when the life of the individual is in danger. In such circumstances, consent of the individual, or parent or guardian who sought the commitment shall be obtained prior to the transfer. In the event the individual cannot consent and there is no person who can be reasonably contacted, such transfer may be made upon the authorization of the Department on Disability Services, with notice promptly given to the parent or guardian. Consent of the individual, parent, or guardian is not required if the District sought commitment. The parent, guardian, counsel for the individual, and advocate for a person with an intellectual disability shall be notified promptly of the transfer.
§ 7–1303.10. Discharge from residential care. [Repealed]
Repealed.
§ 7–1303.11. Payment for habilitation and care. [Repealed]
Repealed.
§ 7–1303.12. Court hearing required prior to commitment.
Except as provided in § 7-1303.12a, no person with an intellectual disability shall be committed under this chapter prior to the Court hearing required under this subchapter.
§ 7–1303.12a. Placement pending petition and commitment proceedings.
(a) In the case of a person found incompetent in a criminal case, the District shall have no more than 30 days from the date on which the finding is made that the person is incompetent and not likely to gain competence in the foreseeable future in which to file a petition pursuant to § 7-1303.04(b-1). For extraordinary cause shown, the Court may extend the period of time within which the petition must be filed.
(b) Repealed.
(c) While awaiting the District’s decision pursuant to subsection (a) of this section and during the pendency of any resultant commitment proceedings, the Court may order the person placed with DDS for placement in a setting that DDS preliminarily determines can provide habilitation services consistent with the person’s needs and supervision or security sufficient to prevent the person from causing injury to others as a result of his or her intellectual disability.
(d) If the Court or DDS places the person in a setting that does not meet the definition of a facility contained in § 7-1301.03(13), the hearing pursuant to § 7-1304.06a shall commence no later than 90 days from the date on which the finding is made that the person is incompetent and not likely to gain competence in the foreseeable future. If the hearing does not commence before the expiration of the 90-day time period, the Court shall place the person with the DDS for placement in a facility that does satisfy § 7-1301.03(13) and that DDS preliminarily determines can provide habilitation services consistent with the person’s needs and supervision or security sufficient to prevent the person from causing injury to others as a result of the person’s intellectual disability.
§ 7–1303.13. Effect of determination of incompetency to refuse commitment.
A determination by the Court under this subchapter that a person 14 years of age or older is incompetent to refuse commitment shall not be relevant to a determination of the person's competency with respect to other matters not considered by the Court.
§ 7–1303.14. Rules and regulations governing respite care. [Repealed]
Repealed.
Subchapter IV. Hearing and Review Procedures.
§ 7–1304.01. Commencement of commitment proceedings; filing of written petition.
Proceedings for the commitment of a person found incompetent in a criminal case shall be commenced by the filing of a written petition by the District with the Court in a manner and form prescribed by the Court. A copy of the petition shall be served on the person, the person's counsel, and the person's guardian, if any.
§ 7–1304.02. Representation by counsel.
Persons who have been committed, or whose commitment is sought pursuant to § 7-1303.04(b-1), have the right to be represented by counsel, retained or appointed by the Court, in any proceeding held before the Court in accordance with this chapter, and they shall be informed by the Court of this right. The Court shall appoint counsel to represent the person. Whenever possible, counsel shall be appointed who has had experience in the intellectual disability area. Counsel appointed to represent persons who are unable to pay for such counsel shall be awarded compensation by the Court for his or her services in an amount determined by the Court to be fair and reasonable.
§ 7–1304.03. Comprehensive evaluation report and individual habilitation plan required; contents; copies.
(a) If a petition filed in accordance with § 7-1304.01 is not accompanied by a comprehensive evaluation report based on an evaluation which has been performed within 6 months prior to the hearing and an individual habilitation plan which has been prepared within 30 days of the filing of the petition, the Court shall immediately order that a comprehensive evaluation be conducted and an individual habilitation plan be written.
(b) A written report setting forth the results of the comprehensive evaluation and a copy of the habilitation plan shall be submitted to the Court. The report shall indicate:
(1) Whether or to what degree the person has an intellectual disability;
(2) What habilitation is needed; and
(3) The record of habilitation and care, if any.
(c) The individual habilitation plan shall contain the following:
(1) A statement of the nature of the specific strengths, limitations and specific needs of the person who is the subject of the plan;
(2) A description of intermediate and long-range habilitation goals with a projected timetable for their attainment;
(3) A statement of, and an explanation for, the plan of habilitation designed to achieve these intermediate and long-range goals;
(4) A statement of the objective criteria, and an evaluation procedure and schedule for determining whether the goals are being achieved;
(5) A statement of the least restrictive setting for habilitation necessary to achieve the habilitation goals; and
(6) Criteria for release to less restrictive settings for habilitation and living.
(d) A copy of the report and the plan shall be provided to the person and his or her counsel, at least 10 days prior to the hearing. If the petition was accompanied by a comprehensive evaluation and plan, copies of the report and plan shall be provided to the person and his or her counsel within 3 days of the filing of the petition.
§ 7–1304.04. Payment for independent comprehensive evaluation and habilitation plan. [Repealed]
Repealed.
§ 7–1304.05. Hearing conducted promptly.
(a) Repealed.
(b) A status hearing shall be held promptly after filing of the petition pursuant to § 7-1303.04(b-1).
§ 7–1304.06. Hearings conducted in informal manner; procedural rights at hearing.
Except as provided in § 7-1304.06a, hearings shall be conducted in as informal a manner as may be consistent with orderly procedure. Persons who have been committed, or whose commitment is sought pursuant to § 7-1303.04(b-1), have the right to be present during hearings and to testify, but shall not be compelled to testify, and shall be so advised by the Court. They shall have the right to call witnesses and present evidence, and to cross-examine opposing witnesses. The presence of the person may be waived only if the Court finds that the person has knowingly and voluntarily waived his or her right to be present, or if the Court determines that the person is unable to be present by virtue of his or her physical disability.
§ 7–1304.06a. Hearing and determination by Court or jury.
(a) For a commitment hearing on a petition filed pursuant to § 7-1303.04(b-1), a person found incompetent in a criminal case may demand a jury trial, and shall be so informed of this right. The demand shall be made at the status hearing held pursuant to § 7-1304.05(b). If a timely demand for jury trial is not made, the Court shall serve as the factfinder at the hearing. A hearing by the Court or jury shall be accorded with all reasonable speed.
(b) The comprehensive evaluation report and individual habilitation plan required by § 7-1304.03 shall be completed prior to the hearing.
(c) The person found incompetent in a criminal case shall have the right to be present during the trial or hearings and to testify, but shall not be compelled to testify, and shall be so advised by the Court. The person shall have the right to be represented by counsel, retained or appointed by the Court, in any hearing or trial, and shall be so informed by the Court of this right. The person shall have the right to call witnesses and present evidence, and to cross-examine opposing witnesses.
(d) If the Court or jury finds that the person does not have an intellectual disability or that the person is not likely to cause injury to others as a result of the person’s intellectual disability if allowed to remain at liberty, the Court shall dismiss the petition. If the Court or jury finds that the person has an intellectual disability and is likely to cause injury to others as a result of the person’s intellectual disability if allowed to remain at liberty, the Court shall order commitment to DDS for placement in a facility that would be the least restrictive means of providing the habilitation indicated by the [individual] habilitation plan required under § 7-1304.03 and of preventing the person from causing injury to others as a result of the person’s intellectual disability.
§ 7–1304.07. Standard of proof.
(a) Repealed.
(b) If the petition was filed pursuant to § 7-1303.04(b-1), the District shall present clear and convincing evidence that shows that the person whose commitment is sought is likely to cause injury to others as a result of an intellectual disability if allowed to remain at liberty.
§ 7–1304.08. Hearings closed to public; request for open hearing.
Hearings shall be closed to the public unless the person with an intellectual disability, or his or her counsel, requests that a hearing be open to the public.
§ 7–1304.09. Disposition orders by Court. [Repealed]
Repealed.
§ 7–1304.10. Appeal of commitment order.
Any commitment order of the Court may be appealed in a like manner as other civil actions.
§ 7–1304.11. Periodic review of commitment order.
(a)(1) Any decision of the Court ordering commitment of a person with an intellectual disability, other than a decision of the Court ordering commitment of a person found incompetent in a criminal case to DDS pursuant to § 7-1304.06a, that was issued before May 5, 2018, shall be reviewed in a Court hearing annually. The commitment shall be terminated unless there is a finding of the following:
(A) The Court determines that the person with an intellectual disability has benefited from the habilitation;
(B) DDS demonstrates that continued residential rehabilitation is necessary for the habilitation program;
(C) The person with an intellectual disability is a resident of the District;
(D) The Court determines beyond a reasonable doubt that:
(i) Based on a comprehensive evaluation of the person performed within one year before the hearing, the person has at least a moderate intellectual disability and requires habilitation; and
(ii) DDS is capable of providing the required habilitation; and
(E) The person with an intellectual disability, or an individual authorized pursuant to paragraph (2) of this subsection, provides informed consent to continue the person's commitment.
(2) If a person with an intellectual disability does not have capacity to give informed consent to continue the person's commitment, the following individuals, in the order of priority set forth below, shall be authorized to consent on behalf of the person with an intellectual disability to the continued commitment of the person with an intellectual disability pursuant to paragraph (1)(E) of this subsection:
(A) A court-appointed general guardian or limited guardian of the person with an intellectual disability whose scope of appointment includes the authority to consent to the continued commitment of the person;
(B) A court-appointed conservator whose scope of appointment incudes the authority to consent to the continued commitment of the person;
(C) The spouse or domestic partner of the person;
(D) An adult child of the person;
(E) A parent of the person;
(F) An adult sibling of the person;
(G) A religious superior of the person, if the person is a member of a religious order, or a diocesan priest;
(H) A close friend of the person;
(I) The nearest-living, adult relative of the person; or
(J) A guardian ad litem appointed by the Mental Health and Habilitation Branch of the Court for the sole purpose of consenting to the continued commitment of the person.
(3) A decision by an individual authorized pursuant to paragraph (2) of this subsection to consent to the continued commitment of a person pursuant to paragraph (1)(E) of this subsection shall be based on the expressed wishes of the person or, if the wishes of the person are unknown and cannot be ascertained, on a good faith belief as to the best interests of the person.
(4) If no individual in a prior category of individuals listed in paragraph (2) of this subsection is reasonably available, mentally capable, and willing to act, authority to consent to the continued commitment of a person shall rest with the next reasonably available, mentally capable, and willing individual on the priority list.
(5) Any individual listed in paragraph (2) of this subsection shall have legal standing to challenge in the Court any decision made by an individual of higher priority listed in paragraph (2) of this subsection.
(6) The order of priority established in paragraph (2) of this subsection creates a presumption that may be rebutted if an individual of lower priority is found to have better knowledge of the wishes of the person, or, if the wishes of the patient are unknown and cannot be ascertained, is better able to demonstrate a good-faith belief as to the interests of the person.
(7) Nothing in this section shall be construed to change DDS's responsibility to provide services and supports pursuant to § 7-761.05(1).
(8) For the purposes of this subsection, a prior court decision to commit a person shall not be determinative of whether the person has capacity to give informed consent to continue the person's commitment pursuant to paragraph (1)(E) of this subsection.
(a-1) Any decision of the Court ordering commitment of a person found incompetent in a criminal case to DDS pursuant to § 7-1304.06a shall be reviewed in a court hearing annually. The person shall not be discharged if the Court finds that the person is likely to cause injury to others as a result of his or her intellectual disability if allowed to regain his or her liberty.
(b) If a person with an intellectual disability is discharged in accordance with the provisions of subsection (a) or subsection (a-1) of this section but continues to evidence the need for habilitation and care, it shall be the responsibility of the Department on Disability Services to arrange for suitable services for the person.
§ 7–1304.12. Payment of costs and expenses.
Costs and expenses of all proceedings held under this chapter shall be paid as follows:
(1) To expert witnesses designated by the Court, an amount determined by the Court;
(2) To attorneys appointed under this chapter, fees as authorized under the Criminal Justice Act (§ 11-2601 et seq.);
(3) To other witnesses, the same fees and mileage as for attendance at Court to be paid upon the approval of the Court.
§ 7–1304.13. Advocate for a person with an intellectual disability.
(a) Persons with an intellectual disability who have been committed, and persons whose commitment is sought under § 7-1303.04(b-1), shall have the assistance of an advocate for a person with an intellectual disability in every proceeding and at each stage in such proceedings under this chapter.
(b) The Court shall appoint a qualified advocate for a person with an intellectual disability selected from a list of such advocates it maintains.
(c) Advocates for persons with an intellectual disability shall have the following powers and duties:
(1) To inform persons subject to the procedures set forth in this chapter of their rights;
(2) To consult with the person, his or her family and others concerned with his or her habilitation and well being;
(3) To ensure by all means, including case referral to legal services, agencies and other practicing lawyers, that the person is afforded all rights under the law; and
(4) To guide and assist the person in such a manner as to encourage self-reliance and enable the person to participate to the greatest extent possible in decisions concerning his or her habilitation plan, and the services to be provided under this plan.
(d) The advocate for a person with an intellectual disability shall receive notice and shall have the right to participate in all meetings, conferences or other proceedings relating to any matter affecting provision of services to the person including, but not limited to, comprehensive evaluation, habilitation plan, petition and hearings for commitment and for periodic review of the commitment.
(e) The advocate for a person with an intellectual disability shall have access to all records, reports and documents affecting his or her client.
(f) The advocate for a person with an intellectual disability shall have access to all personnel and facilities responsible for providing care or services to his or her client and shall be permitted to visit and communicate with his or her client in private, and at any reasonable time without prior notice; provided, that he or she shows reasonable cause for visiting at times other than visiting hours.
(g) The advocate for a person with an intellectual disability shall be a person with training and experience in the field of intellectual disability.
(h) Advocates shall be provided directly by the Court or by a contract with individuals or organizations including local associations for persons with intellectual disabilities; however, the Court shall ensure that contracts and other arrangements for selection and provision of advocates provide that each advocate for a person with an intellectual disability shall be independent of any public or private agency which provides services to persons subject to this chapter.
(i) In the selection, training and development of the advocacy provision of this section, the Court shall explore and seek out potential sources of funding at the federal and District levels.
(j) Advocates shall be provided with facilities, supplies, and secretarial and other support services sufficient to enable them to carry out their duties under this chapter.
(k) All communication between advocates and their clients shall remain confidential and privileged as if between attorney and client.
(l) The Court shall promulgate such rules amplifying and clarifying this section as it deems necessary.
(m) Persons with an intellectual disability subject to this chapter may knowingly reject the services of an advocate for a person with an intellectual disability and shall be so advised by the Court. Advocates whose services have been rejected by the person with an intellectual disability shall not have the rights set forth in subsections (c), (d), (e), (f) and (j) of this section.
(n) If so authorized by the Court, the advocate for a person with an intellectual disability shall be permitted to grant, refuse, or withdraw consent on behalf of his or her client with respect to the provision of any health-care service, treatment, or procedure, consistent with the provisions of Chapter 22 of Title 21.
Subchapter V. Rights of Persons with Intellectual Disabilities.
§ 7–1305.01. Habilitation and care; habilitation program.
(a) To the extent that appropriated funds are available to carry out the purposes of this chapter, no District resident with an intellectual or developmental disability shall be denied habilitation, care, or both suited to the person’s needs regardless of the person’s age, degree of intellectual or developmental disability, or other disabling condition.
(b) To the extent that appropriated funds are available to carry out the purposes of this chapter, each person shall be provided a habilitation program that will maximize the person’s human abilities, enhance the person’s ability to cope with the person’s environment, and create a reasonable opportunity for progress toward the goal of independent living.
(c) Notwithstanding subsection (a) of this section, no person subject to commitment pursuant to § 7-1304.06a shall be denied habilitation, care, or both suited to the person’s needs, regardless of the person’s age, degree of intellectual disability, or other disabling condition.
(d) Notwithstanding subsection (b) of this section, a person subject to commitment pursuant to § 7-1304.06a shall be provided a habilitation program that will maximize the person’s human abilities, enhance the person’s ability to cope with the person’s environment, and create a reasonable opportunity for progress toward the goal of independent living.
(e)(1) Notwithstanding the availability of an appropriation to carry out the purposes of this chapter in subsections (a) and (b) of this section, effective January 1, 2012, a District resident with an intellectual or developmental disability who is otherwise eligible to receive supports and services from the District pursuant to this chapter must either pay the full cost of such supports and services directly to the provider or become District Medicaid-eligible and maintain District Medicaid eligibility in order to receive supports and services under this chapter from a District Medicaid-eligible provider. This requirement shall not apply to a person:
(A) Who is a former resident of Forest Haven;
(B) Whose needs cannot reasonably be met by a District Medicaid provider;
(C) Who is eligible for enrollment in the D.C. Healthcare Alliance; or
(D) Whose representative payee for the purposes of Social Security benefits is the Department of Disability Services or a provider agency who is contracted with the District to provide supports and services for that person, if the reason the person lost Medicaid eligibility is due to a failure by the representative payee.
(2) The Department of Disability Services shall work with and support the person to become District Medicaid-eligible and to maintain District Medicaid eligibility, and the person and his or her representatives, estate, or both shall fully cooperate in such efforts.
§ 7–1305.02. Living conditions; teaching of skills.
Persons shall be provided with the least restrictive and most normal living conditions possible. Persons with intellectual disabilities found incompetent in a criminal case shall be provided with the least restrictive and most normal living conditions possible consistent with preventing the person from causing injury to others as a result of the person’s intellectual disability. This standard shall apply to dress, grooming, movement, use of free time, and contact and communication with the community, including access to services outside of the institution or residential facility. Persons shall be taught skills that help them learn how to effectively utilize their environment and how to make choices necessary for daily living and, in the case of a person committed under § 7-1304.06a, to refrain from committing crimes of violence or sex offenses.
§ 7–1305.03. Least restrictive conditions.
(a) Persons shall have a right to the least restrictive conditions necessary and available to achieve the purposes of habilitation. To this end, the residential facility shall move persons from:
(1) More to less structured living;
(2) Larger to smaller facilities;
(3) Larger to smaller living units;
(4) Group to person residence;
(5) Segregated to integrated community living; or
(6) Dependent to independent living.
(b) If at any time the Director decides that a person should be transferred out of the facility to a less restrictive environment, he or she shall immediately notify the Court pursuant to section 309. Notice shall be provided to the person, the person’s counsel, the person’s advocate for a person with an intellectual disability, if one has been appointed, and the person’s parent or guardian who petitioned for the commitment.
§ 7–1305.04. Comprehensive evaluation and individual habilitation plan.
(a)(1) Before each person's commitment under this chapter, the person shall receive, pursuant to § 7-1304.03, a comprehensive evaluation or screening and an individual habilitation plan.
(2) All individual habilitation plans shall include:
(A) Current information on whether the person has the capacity to grant, refuse, or withdraw consent to any ongoing medical treatment and:
(i) Has executed or could execute a durable power of attorney in accordance with § 21-2205; or
(ii) Has an individual reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210; and
(B) A current durable power of attorney or, in the absence of a durable power of attorney, documentation that the person has been offered an opportunity to execute a durable power of attorney pursuant to § 21-2205 and has declined.
(3) Annual reevaluations or screenings of the person shall be provided as determined by the person's interdisciplinary team. Annual reevaluations and screenings shall include a review of and update to the individual habilitation plan on whether the person:
(A) Has the capacity to grant, refuse, or withdraw consent to any ongoing medical treatment;
(B) Has executed or could execute a durable power of attorney in accordance with § 21-2205;
(C) Has been offered an opportunity to execute a durable power of attorney pursuant to § 21-2205 and declined; or
(D) Has an individual reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210.
(4) By April 15, 2009, the DDS shall establish written procedures for incorporating a review of all mental-health services, including psychotropic medications, behavioral plans, and any other psychiatric treatments, into the annual reevaluations and screenings conducted by the person's interdisciplinary team.
(5) Nothing in this subsection shall be construed as requiring any person to execute a durable power of attorney for health care.
(b) Within 10 days of a person's commitment pursuant to § 7-1304.03, the Department on Disability Services shall:
(1) Designate each professional or staff member who is responsible for implementing or overseeing the implementation of a person's individual habilitation plan;
(2) Designate each District agency, private agency, or service responsible for providing the habilitation included in the plan; and
(3) Specify the role and objectives of each District agency, private agency, or service with respect to the plan.
(c) To the extent of funds appropriated for the purposes of this chapter, each person shall receive habilitation, care, or both consistent with the recommendations included in the person's individual habilitation plan. The Department on Disability Services shall set standards for habilitation and care provided to such persons, consistent with standards set by the Council on Quality and Leadership, including staff-person and professional-person ratios.
(d)(1) Notwithstanding the availability of an appropriation to carry out the purposes of this chapter, effective January 1, 2012, a District resident with intellectual or developmental disability who is otherwise eligible to receive supports and services from the District pursuant to this chapter, consistent with the recommendations included in the individual habilitation plan, must either pay the full cost of such supports and services directly to the provider or become District Medicaid-eligible and maintain District Medicaid eligibility in order to receive supports and services under this chapter from a District Medicaid-eligible provider. This requirement shall not apply to a person:
(A) Who is a former resident of Forest Haven;
(B) Whose needs cannot reasonably be met by a District Medicaid provider;
(C) Who is eligible for enrollment in the D.C. Healthcare Alliance; or
(D) Whose representative payee for the purposes of Social Security benefits is the Department of Disability Services or a provider agency who is contracted with the District to provide supports and services for that person, if the reason the person lost Medicaid eligibility is due to a failure by the representative payee.
(2) The Department of Disability Services shall work with and support the person to become District Medicaid-eligible and to maintain District Medicaid eligibility, and the person and his or her representatives, estate, or both shall fully cooperate in such efforts.
§ 7–1305.05. Visitors; mail; access to telephones; religious practice; personal possessions; privacy; exercise; diet; medical attention; medication.
(a) Subject to restrictions by a physician for good cause, each person has the right to receive visitors of his or her own choosing daily. Hours during which visitors may be received shall be limited only in the interest of effective treatment and the reasonable efficiency of the facility, and shall be sufficiently flexible to accommodate the person needs of the person and his or her visitors. Notwithstanding the above, each person has the right to receive visits from his or her attorney, physician, psychologist, clergyman, social worker, parents or guardians, or advocate for a person with an intellectual disability in private at any reasonable time, irrespective of visiting hours, provided the visitor shows reasonable cause for visiting at times other than normal visiting hours.
(b) Writing material and postage stamps shall be reasonably available for the person’s use in writing letters and other communications. Reasonable assistance shall be provided for writing, addressing and posting letters and other documents upon request. The person shall have the right to send and receive sealed and uncensored mail. The person has the right to reasonable private access to telephones and, in case of personal emergencies when other means of communications are not satisfactory, he or she shall be afforded reasonable use of long distance calls. A person who is unable to pay shall be furnished such writing, postage, and telephone facilities without charge.
(c) Each person shall have the right to follow or abstain from the practice of religion. The facility shall provide appropriate assistance in this connection including reasonable accommodations for religious worship and/or transportation to nearby religious services. Persons who do not wish to participate in religious practice shall be free from pressure to do so or to accept religious beliefs.
(d) Each person shall have the right to a humane psychological and physical environment. He or she shall be provided a comfortable bed and adequate changes of linen and reasonable storage space, including locked space, for his or her personal possessions. A record shall be kept of each person’s personal possessions. Except when curtailed for reason of safety or therapy as documented in his or her record by a physician, he or she shall be afforded reasonable privacy in his sleeping and personal hygiene practices.
(e) Each person shall have reasonable daily opportunities for physical exercise and outdoor exercise and shall have reasonable access to recreational areas and equipment.
(f) Each person has the right to a nourishing, well-balanced, varied, and appetizing diet, and where ordered by a physician and/or nutritionist, to a special diet.
(g) Each person shall have the right to prompt and adequate medical attention for any physical ailments and shall receive a complete physical examination upon admission and at least once a year thereafter.
(h) All persons have a right to be free from unnecessary or excessive medication. No medication shall be administered unless at the written or verbal order of a licensed physician, noted promptly in the patient’s medical record and signed by the physician within 24 hours. Medication shall be administered only by a licensed physician, registered nurse or licensed practical nurse, or by a medical or nursing student under the direct supervision of a licensed physician or registered nurse, or by a Director acting upon a licensed physician’s instructions. The attending physician shall review on a regular basis the drug regimen of each person under his or her care. All prescriptions for psychotropic medications shall be written with a termination date, which shall not exceed 30 days. Medication shall not be used as a punishment, for the convenience of staff, as a substitute for programs, or in quantities that interfere with the person’s habilitation program.
§ 7–1305.06. Prohibited psychological therapies.
No psychosurgery, convulsive therapy, experimental treatment or behavior modifications program involving aversive stimuli or deprivation of rights set forth in this subchapter shall be administered to any resident.
§ 7–1305.06a. Informed consent.
(a) Except in accordance with the procedures described in subsections (b) and (c) of this section, in § 21-2212, or as otherwise provided by law, no DDS person shall be given services pursuant to this chapter absent the person’s informed consent. In seeking informed consent, the provider or DDS shall present the person with available options and all material information necessary to make the decision, including information about the proposed service, potential benefits and risks of the proposed service, potential benefits and risks of no service, side effects, and information about feasible alternative services, if any.
(b) If the provider or DDS reasonably believes that the person lacks the capacity to provide informed consent for the proposed service, the provider or DDS promptly shall seek a determination of the person’s capacity in accordance with § 21-2204. If the person is certified as incapacitated for health-care decisions in accordance with § 21-2204, DDS or the provider shall promptly seek the provision of substituted consent from the person’s attorney-in-fact pursuant to § 21-2206 or, if no attorney-in-fact has been authorized pursuant to § 21-2205 or is reasonably available, mentally capable, and willing to act, from a person authorized to provide substituted consent pursuant to § 21-2210.
(c) If the person is certified as incapacitated and unable to consent to the proposed service in accordance with § 21-2204, and no attorney-in-fact or person listed in § 21-2210(a) is reasonably available, mentally capable, and willing to act:
(1) For any proposed services except psychotropic medications, the District shall petition the Court for appointment of a guardian pursuant to Chapter 20 of Title 21. The District’s petition shall request the form of guardianship which is least restrictive to the incapacitated person in duration and scope, taking into account the incapacitated person’s current mental and adaptive limitations or other conditions warranting the procedure. This subsection does not preclude any other party from petitioning the Court for appointment of a guardian.
(2) For all proposed psychotropic medications, except as described under paragraph (3) of this subsection, the provider may administer medication only when the administration of medication is accompanied by a behavioral plan and only after receiving approval from an independent panel appointed by the DDS Administrator pursuant to § 7-1305.06b.
(3) In an emergency in which a person is experiencing a mental health crisis and in which the immediate provision of mental health treatment, including medication, is, in the written opinion of the attending physician, necessary to prevent serious injury to the person or others, the provider may administer medication without seeking the person’s prior informed consent only to the extent necessary to terminate the emergency.
§ 7–1305.06b. Review panel for administration of psychotropic medications.
(a) The DDS Administrator shall establish an independent panel to review all proposals to administer psychotropic medications to persons made pursuant to § 7-1305.06a(c)(2) and in accordance with the administrative procedures established by DDS in accordance with subchapter I of Chapter 5 of Title 2 [§ 2-501 et seq.]. The administrative procedures established by DDS shall be consistent with the requirements of this section.
(b) The panel shall be comprised of 3 members. The members of the panel and their employers shall be immune from suit for any claim arising from any good faith act or omission under this section. The members of the panel shall not be affiliated with the person, the provider, or the physician seeking to administer the medication, but shall include:
(1) A board-certified psychiatrist or an advanced practice registered nurse;
(2) A licensed professional; and
(3) An person, or, if unavailable, an advocate for a person with an intellectual disability or other person advocate.
(c) The administrative procedure established by DDS for the panel shall include, at a minimum:
(1) A meeting by the panel no later than one week after DDS receives a request for consent;
(2) Written and oral notice to the person not less than 48 hours prior to when the panel will meet;
(3) The right of the person to be present when the panel meets and to have a representative present during any such meeting;
(4) The opportunity, at the meeting of the panel, for the person and his or her representative to present information and to discuss the wishes of the person;
(5) The issuance of a written decision by the panel no later than one week after the meeting of the panel, to be provided to the person, the person’s representative, and the provider; and
(6) The right of the person to request that the DDS Human Rights Advisory Committee or its successor entity review the decision of the panel.
(d) If the person requests a review by the DDS Human Rights Advisory Committee or its successor entity before the decision of the panel has been implemented, the decision shall not be implemented until after the DDS Human Rights Advisory Committee or its successor entity responds to the requested review. The DDS Human Rights Advisory Committee or its successor entity shall conduct the review at its next meeting or no later than 30 days after the request, whichever is earlier, and shall issue a response promptly.
(e) The panel shall issue a written decision which may grant, refuse, or withdraw consent to the prescription of the proposed psychotropic medication. The panel shall seek to conform as closely as possible to a standard of substituted judgment or, if the person’s wishes are unknown and remain unknown after reasonable efforts to discern them, make the decision on the basis of the person’s best interests. If the panel grants consent, the consent shall be granted for a limited period of time and shall last no longer than 9 consecutive months.
(f) For persons for whom the panel has provided consent, DDS shall offer the person the opportunity to execute a durable power of attorney in accordance with § 21-2205 and shall continue to seek to identify one or more persons listed in § 21-2210(a) who may be reasonably available, mentally capable, and willing to act.
(g) For persons for whom the panel has provided consent for 3 or more consecutive months, and for whom there is a reasonable likelihood that no decision-maker will become available and that the person will not achieve capacity during the next 6 months to make decisions regarding psychotropic medications on his or her own behalf, the District shall petition the Court for appointment of a guardian pursuant to Chapter 20 of Title 21. The District’s petition shall request the type of guardianship which is least restrictive to the incapacitated person in duration and scope, taking into account the incapacitated person’s current mental and adaptive limitations or other conditions warranting the procedure. This subsection does not preclude any other party from petitioning the Court for appointment of a guardian.
(h) Refusal to consent to psychotropic medications shall not be used as evidence of an person’s incapacity.
(i) Refusal to consent to services on the basis of a valid religious objection shall not be overridden absent a specific court order requiring the provision of services.
§ 7–1305.06c. Psychotropic medication review.
(a) By April 15, 2009, the DDS shall complete a psychotropic medication review for all persons served by DDS.
(b) By October 17, 2008, the DDS shall establish written procedures, which shall include timelines and shall identify responsible entities or persons, for promptly implementing the recommendations for each person identified by the psychotropic medication review.
(c) The psychotropic medication review shall be conducted by a review team that includes professionals with expertise in the prescription, use, and side effects of psychotropic medications as therapy for persons who have been dually diagnosed with intellectual disabilities and mental illness.
(d) DDS shall establish in writing:
(1) Procedures for an initial administrative review of psychotropic medication prescriptions for all persons served by DDS.
(2) Procedures and criteria for determining which persons receive only an initial administrative review of psychotropic medications, and which persons also receive a more detailed clinical review of psychotropic medications; and
(3) Criteria for screening and determining the clinical appropriateness of each psychotropic medication prescribed for each person.
(e) The review team shall complete the initial administrative review of psychotropic medications. The initial administrative review of psychotropic medications shall determine, at minimum, for each person served by DDS:
(1) All prescribed psychotropic medications;
(2) The diagnosis justifying each prescription;
(3) The provision of informed consent for each prescription;
(4) The presence of an accompanying behavioral plan; and
(5) Any other mental health services being provided to the person.
(f) The review team shall conduct a clinical review of psychotropic medications when the initial administrative review meets the review team’s criteria indicating that a detailed clinical review of the person’s psychotropic medication is warranted. The clinical review shall seek to determine the clinical appropriateness of each prescribed psychotropic medication and the potential for alternative approaches. The clinical review shall include, at a minimum, interviews with the person, the prescribing professional, and the person’s residential and day service providers, if any.
(g) By no later than 30 days after completing a psychotropic medication review of a person, the review team shall issue a written report, which shall include recommendations for:
(1) Continued use, modification, or termination of psychotropic medication;
(2) Potential use of alternative approaches, including therapies, behavioral plans, skill development, and environmental modifications;
(3) Informed consent, if informed consent has not been provided; and
(4) Development of a behavioral plan, if no behavioral plan is present.
(h) A copy of the written report of the review team shall be appended to the person’s person habilitation plan and shall be provided to:
(1) The person;
(2) The person’s legal representative, if any;
(3) The person’s advocate for a person with an intellectual disability, if any;
(4) The person’s DDS case manager;
(5) Other persons identified in the person’s person habilitation plan as reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210, if any;
(6) The person’s residential service provider; and
(7) The Quality Trust for Individuals with Disabilities, Inc.
§ 7–1305.07. Essential surgery in medical emergency. [Repealed]
Repealed.
§ 7–1305.07a. Health-care decisions policy, annual plan, and quarterly reports.
(a) It shall be the policy of the District government to ensure that all persons who become incapable of making or communicating health-care decisions for themselves have available health-care decision-makers. In addition, it shall be the policy of DDS to ensure that every person served by DDS has the opportunity to execute a durable power of attorney pursuant to § 21-2205, and has one or more persons identified as reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210, if the person were to become certified as incapacitated to make a health-care decision in accordance with § 21-2204.
(b) The DDS Administrator shall issue by November 1 of each year an annual plan describing how DDS will comply with subsection (a) of this section during the current fiscal year. The plan shall include data from the prior fiscal year for assessing the current and potential health-care decision-making needs of all persons served by DDS. The plan shall include, at a minimum:
(1) Aggregate statistics summarizing the number of DDS Customers who:
(A) Have a general guardian, a limited guardian, a health-care guardian, or an emergency guardian as of the end of the prior fiscal year;
(B) At any time during the prior fiscal year, had an emergency guardian authorized to make health-care decisions or a health-care guardian;
(C) Have executed a durable power of attorney in accordance with § 21-2205;
(D) Have been offered an opportunity to execute a durable power of attorney pursuant to § 21-2205 and declined;
(E) Have an person identified as reasonably available, mentally capable, and willing to provide substituted consent pursuant to § 21-2210; or
(F) Lack any available substitute health-care decision-maker;
(2) Aggregate statistics describing the numbers of persons taking psychotropic medications as of the end of the previous fiscal year, and an assessment of the degree to which health-care decision-making support for the prescription of psychotropic medication may be required for these persons;
(3) Aggregate statistics describing the requests for consent reviewed during the prior fiscal year by the independent psychotropic medication panel authorized in § 7-1305.06b, analyzing outcomes, monthly and yearly trends, and requests for review by the DDS Human Rights Committee;
(4) Aggregate statistics describing for the prior fiscal year:
(A) The number of substitute decisions which required intervention by DDS to identify an person to provide substituted consent pursuant to § 21-2210;
(B) The nature of the health-care needs and medical treatments; and
(C) The average time elapsed between a request for a substituted decision and the provision of substituted consent; and
(5) An analysis of the statistics described in this subsection, identification of yearly and multiyear trends, and a plan for remedial measures to be taken when the statistics identify process or service deficiencies.
(c) The DDS Administrator shall produce a quarterly report on all substituted consent activities pursuant to subsection (a) of this section until October 2010. Quarterly reports shall be complete by the 15th day of October, January, April, and July and shall include:
(1) Statistics describing:
(A) The number of substitute decisions during the prior quarter which required intervention by DDS to identify an person to provide substituted consent pursuant to § 21-2210;
(B) The nature of the health-care needs and medical treatments for each substituted decision;
(C) The time elapsed between each request for a substituted decision and the provision of substituted consent; and
(D) If the process for identifying an person to provide substituted consent pursuant to § 21-2210 is not complete, a summary of the specific barriers currently identified and the specific action needed; and
(2) An analysis of the statistics described in this subsection, and a plan for remedial measures to be taken, when the statistics identify process delays.
(d)(1) The DDS Administrator shall submit the annual plan described in subsection (b) of this section and the quarterly report described in subsection (c) of this section to:
(A) The Committee of the Council under whose purview DDS falls;
(B) The Mayor; and
(C) The designated state protection and advocacy agency for the District of Columbia established pursuant to the Protection and Advocacy for Mentally Ill Individuals Act of 1986, approved May 23, 1986 (100 Stat. 478; 42 U.S.C. § 10801 et seq.), and section 509 of the Rehabilitation Act of 1973, approved October 29, 1992 (106 Stat. 4430; 29 U.S.C. § 794e).
(2) The DDS Administrator shall make copies of the annual plan and quarterly reports described in this section available to members of the public upon request.
(e) Nothing in this section shall be construed as requiring any person to execute a durable power of attorney for health care.
§ 7–1305.08. Sterilization.
No person served at a facility shall be sterilized by any employee of a facility or by any other person acting at the direction of, or under the authorization of, the Director or any other employee of a facility.
§ 7–1305.09. Experimental research.
Persons shall have a right not to be subjected to experimental research without the express and informed consent of the person, or if the person cannot give informed consent, of the person’s parent or guardian. Such proposed research shall first have been reviewed and approved by the Department on Disability Services before such consent shall be sought. Prior to such approval, the Department shall determine that such research complies with the principles of the statement on the use of human subjects for research of the American Association on Mental Deficiency and with the principles for research involving human subjects required by the United States Department of Health and Human Services for projects supported by that agency.
§ 7–1305.10. Mistreatment, neglect or abuse prohibited; use of restraints; seclusion; “time-out” procedures.
(a) Mistreatment, neglect or abuse in any form of any person shall be prohibited. The routine use of all forms of restraint shall be eliminated. Physical or chemical restraint shall be employed only when absolutely necessary to prevent a person from seriously injuring himself or herself, or others. Restraint shall not be employed as a punishment, for the convenience of staff or as a substitute for programs. In any event, restraints may only be applied if alternative techniques have been attempted and failed (such failure to be documented in the person’s record) and only if such restraints impose the least possible restriction consistent with their purposes. Each facility shall have a written policy defining:
(1) The use of restraints;
(2) The professionals who may authorize such use; and
(3) The mechanism for monitoring and controlling such use.
(b) Only professionals designated by the Director may order the use of restraints. Such orders shall be in writing and shall not be in force for over 12 hours. A person placed in restraint shall be checked at least every 30 minutes by staff trained in the use of restraints and a written record of such checks shall be kept.
(c) Mechanical restraints shall be designed for minimum discomfort and used so as not to cause physical injury to the person. Opportunity for motion and exercise shall be provided for a period of not less than 10 minutes during each 2 hours in which restraint is employed.
(d) Seclusion, defined as a placement of a person alone in a locked room, shall not be employed. Legitimate “time-out” procedures may be utilized under close and direct professional supervision as a technique in behavior-shaping programs. Each facility shall have a written policy regarding “time-out” procedures.
(e) Alleged instances of mistreatment, neglect or abuse of any person shall be reported immediately to the Director and the Director shall inform the person’s counsel, parent or guardian who petitioned for the commitment, and the person’s advocate for a person with an intellectual disability of any such instances. There shall be a written report that the allegation has been thoroughly and promptly investigated (with the findings stated therein). Employees of facilities who report such instances of mistreatment, neglect, or abuse shall not be subjected to adverse action by the facility because of the report.
(f) A person’s counsel, parent or guardian who petitioned for commitment and a person’s intellectual disability advocate shall be notified in writing whenever restraints are used and whenever an instance of mistreatment, neglect or abuse occurs.
§ 7–1305.11. Performance of labor.
(a) No person shall be compelled to perform labor which involves the operation, support, or maintenance of the facility or for which the facility is under contract with an outside organization. Privileges or release from the facility shall not be conditional upon the performance of such labor. The Mayor shall promulgate rules and regulations governing compensation of persons who volunteer to perform such labor, which rules and regulations shall be consistent with United States Department of Labor regulations governing employment of patient workers in hospitals and institutions at subminimum wages.
(b) A person may be required to perform habilitative tasks which do not involve the operation, support or maintenance of the facility if those tasks are an integrated part of the person’s habilitation plan and supervised by a qualified intellectual disability professional designated by the Director.
(c) A person may be required to perform tasks of a housekeeping nature for his or her own person only.
§ 7–1305.12. Maintenance of records; information considered privileged and confidential; access; contents.
(a) Complete records for each person shall be maintained and shall be readily available to professional persons and to the staff workers who are directly involved with the particular person and to the Department on Disability Services without divulging the identity of the person. All information contained in a person’s records shall be considered privileged and confidential. The person’s parent or guardian who petitioned for the commitment, the person’s counsel, the person’s advocate for a person with an intellectual disability and any person properly authorized in writing by the person, if such person is capable of giving such authorization, shall be permitted access to the person’s records. These records shall include:
(1) Identification data, including the person’s legal status;
(2) The person’s history, including but not limited to:
(A) Family data, educational background and employment record;
(B) Prior medical history, both physical and mental, including prior institutionalization;
(3) The person’s grievances, if any;
(4) An inventory of the person’s life skills;
(5) A record of each physical examination which describes the results of the examination;
(6) A copy of the individual habilitation plan; and any modifications thereto and an appropriate summary which will guide and assist the professional and staff employees in implementing the person’s program;
(7) The findings made in periodic reviews of the habilitation plan which findings shall include an analysis of the successes and failures of the habilitation program and shall direct whatever modifications are necessary;
(8) A medication history and status;
(9) A summary of each significant contact by a professional person with a person;
(10) A summary of the person’s response to his or her program, prepared and recorded at least monthly, by the professional person designated pursuant to § 7-1305.04(c) to supervise the person’s habilitation;
(11) A monthly summary of the extent and nature of the person’s work activities and the effect of such activity upon the person’s progress along the habilitation plan;
(12) A signed order by a professional person, as set forth in § 7-1305.10(b), for any physical restraints;
(13) A description of any extraordinary incident or accident in the facility involving the person, to be entered by a staff member noting personal knowledge of the incident or accident or other source of information, including any reports of investigations of person’s mistreatment;
(14) A summary of family visits and contacts;
(15) A summary of attendance and leaves from the facility; and
(16) A record of any seizures, illnesses, treatments thereof, and immunizations.
(b) Notwithstanding subsection (a) of this section, information contained in a person’s record may be used or disclosed for the purposes of and in accordance with Chapter 2B of this title [§ 7-241 et seq.].
§ 7–1305.13. Initiation of action to compel rights; civil remedy; sovereign immunity barred; defense to action; payment of expenses.
(a) Any interested party shall have the right to initiate an action in the Court to compel the rights afforded persons with intellectual or developmental disabilities under this chapter.
(b) Any person shall have the right to a civil remedy in an amount not less than $25 per day from the Director or the District of Columbia, separately or jointly, for each day in which said person at a facility is not provided a program adequate for habilitation and normalization pursuant to the person's individual habilitation plan, unless the District is unable to pay the cost of recommended services because available funds appropriated for the purposes of this chapter are insufficient to pay the costs.
(c) Sovereign immunity shall not bar an action under this section.
(d) The good faith belief that an habilitation program was professionally indicated shall be a defense to an action under subsection (b) of this section, despite the program’s apparent ineffectiveness. In such circumstances, the habilitation program shall be modified to one appropriate for the person within 5 days of a Court’s decision that the program is inappropriate.
(e) Reasonable attorneys’ fees and Court costs shall be available for actions brought under this section.
§ 7–1305.14. Deprivation of civil rights; public or private employment; retention of rights; liability; immunity; exceptions.
(a) No person shall be deprived of any civil right, or public or private employment, solely by reason of his or her having received services, voluntarily or involuntarily, for an intellectual or developmental disability.
(b) Any person who has been admitted or committed to a facility under the provisions of this chapter retains all rights not specifically denied him or her under this chapter, including rights of habeas corpus.
(c) Any person who violates or abuses any rights or privileges protected by this chapter shall be liable for damages as determined by law, for Court costs and for reasonable attorneys’ fees. Any person who acts in good faith compliance with the provisions of this chapter shall be immune from civil or criminal liability for actions in connection with evaluation, admission, commitment, habilitative programming, education or discharge of a resident. However, this section shall not relieve any person from liability for acts of negligence, misfeasance, nonfeasance, or malfeasance.
§ 7–1305.15. Coordination of services for dually diagnosed individuals.
If a person is committed by the Court to DDS pursuant to this chapter or committed by the Court to the Department of Mental Health pursuant to subchapter IV of Chapter 5 of Title 21, or if a person is temporarily placed with DDS pursuant to § 7-1303.12a during the pendency of commitment proceedings, and DDS or the Department of Mental Health has reason to believe that the committed person or the person temporarily placed with DDS pursuant to § 7-1303.12a is dually diagnosed as having both mental illness and an intellectual disability, DDS and the Department of Mental Health shall collaborate in assessing the person and shall jointly provide appropriate supports and services for the person.
Subchapter VI. Miscellaneous Provisions; Effective Date.
Should any provision of this chapter be declared to be unconstitutional or beyond the statutory authority of the Council, the remaining provisions of this chapter shall remain in effect.
§ 7–1306.02a. Grandfather clause.
Individuals currently deemed eligible and receiving services under this subchapter shall not have their eligibility altered or impacted by the Developmental Disability Eligibility Reform Amendment Act of 2022 ([, passed on 2nd reading on March 1, 2022 (Enrolled version of Bill 24-268)]D.C. Law 24-1__).
§ 7–1306.03. Appropriations.
There is hereby authorized to be appropriated such District funds as may be necessary and available to implement the provisions of this chapter, including funds for the development, and the support, of community-based services for persons with intellectual or developmental disabilities.
§ 7–1306.04. Authority of Board of Education unchanged.
Nothing herein shall be construed to extend or diminish the authority or responsibility of the D.C. Board of Education vested pursuant to Title 38 of the District of Columbia Official Code and applicable federal laws and regulations.
§ 7–1306.05. Effective date.
This chapter shall take effect pursuant to the provisions of § 1-206.02(c)(1). With respect to persons who are residents in facilities on the effective date of this chapter, the provisions of the chapter will take effect immediately, with the exception of the admission and commitment hearing procedures established in subchapters III and IV of this chapter. The Court shall begin hearings under subchapters III and IV of this chapter to review the commitment of such persons, and shall appoint appropriate officers to review the admission of such persons, as soon as possible, but not later than 180 days after the effective date of this chapter. All Court hearings to review the admission or commitment of persons residing in facilities on the effective date of this chapter shall be completed within 3 years of the effective date of this chapter.
