BILL ANALYSIS Ó
SB 1377
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
SB 1377 (Corbett) - As Amended: April 19, 2012
SENATE VOTE : 37-0
SUBJECT : Protection and advocacy agencies
SUMMARY : Clarifies the role of and information available to the
state-designated protection and advocacy (P&A) agency.
Specifically, this bill :
1)Provides that the authority of the P&A agency shall include
access to the following unredacted records: a citation
report, licensing report, survey report, plan of correction,
or statement of deficiency prepared by a department
responsible for issuing a license or certificate to a program,
facility, or service serving an individual with a disability,
and provides that the information obtained in those records is
subject to the confidentiality requirements of Section 4903(f)
of the Welfare and Institutions (W&I) Code.
2)Adds to the enumerated exceptions of existing law that the
information and records otherwise subject to certain
confidentiality requirements shall also be disclosed to the
P&A agency to the extent that the information is contained in
an unredacted version of any of the following: a citation
report, licensing report, survey report, plan of correction,
or statement of deficiency prepared by an authorized licensing
personnel or authorized representatives described, as
specified.
3)Deletes obsolete and inapplicable references.
EXISTING LAW
1)Pursuant to federal law, mandates the creation and maintenance
of a protection and advocacy system in each state, for the
purpose of investigating allegations of abuse or neglect of
persons with disabilities, including: developmentally
disabilities (42 U.S.C. Section 15041 et seq. (PADD Act)),
psychiatric disabilities (42 U.S.C. Section 10801 et seq.
(PAIMI Act)), and other disabilities, including physical,
SB 1377
Page 2
sensory and learning disabilities (29 U.S.C. Section 794e
(PAIR Act)).
2)Provides that an independent private, nonprofit corporation
designated by the Governor shall act as the P&A agency for the
state, and requires that agency meet all requirements of
federal law applicable to P&A systems for people with
disabilities. W&I. Code Section 4901.
3)Defines "disability" as a developmental disability, as defined
in the federal PADD Act, a mental illness, as defined in the
federal PAIMI Act, or a disability as defined under the
federal Americans with Disabilities Act of 1990, or as defined
under the California Fair Employment and Housing Act. W&I
Code Section 4900(d).
4)Specifies the authorities of the P&A agency, pursuant to its
federal mandate, including the authority to investigate any
incident of abuse or neglect of any person with a disability
if the incident is reported to the P&A agency or if the P&A
determines there is probable cause to believe the abuse or
neglect occurred. Among other things, existing law provides
that this investigatory authority shall include reasonable
access to a facility or program and authority to examine all
relevant records and interview any facility or program service
recipient, employee, or other person who might have knowledge
of the alleged abuse or neglect. W&I Code Section 4902(a)(1).
5)Requires that the P&A agency have access to the records of a
person with disabilities where specified circumstances exist.
W&I Code Section 4903(a).
6)Provides that the P&A agency shall have access to various
individual records, whether written or in another medium,
draft or final, including, but not limited to, handwritten
notes, electronic files, photographs, videotapes, or
audiotapes. Such individual records include, but are not
limited to, specified records relating to the provision of
services, reports of investigations of specified claims
including their supporting documents, as well as any discharge
records. W&I Code Section 4903(b)(1)-(3).
7)Lists the types of information in the possession of a program,
facility, or service that must be available to the agency
investigating instances of abuse or neglect, as specified.
SB 1377
Page 3
W&I Code Section 4903(c).
8)Requires that the P&A agency be given access to the records of
specified individuals, and other records that are relevant to
conducting an investigation of potential instances of abuse or
neglect with respect to specified persons with disabilities
not later than three business days after the agency makes a
written request. Existing law requires that immediate access
be granted not later than 24 hours after the P&A agency makes
a request, without consent from another party, in specified
circumstances, if the agency determines there is probable
cause to believe that the health or safety of the individual
is in serious and immediate jeopardy, or in a case of death of
an individual with a disability. W&I Code Section 4903(e).
9)Requires that confidential information kept or obtained by the
P&A agency remain confidential and prohibits that information
from being subject to disclosure, except that the P&A agency
shall not be prevented from, among other things, issuing a
public report of the results of an investigation that
maintains the individual service recipients' confidentiality
or reporting the investigation results to responsible agencies
should an investigation reveal information warranting possible
sanctions or corrective action, as specified. W&I Code
Section 4903(f).
10)Requires the P&A agency to inform and train employees as
appropriate regarding the confidentiality of client records.
W&I Code Section 4903(g).
11)Requires that all information and records obtained in the
course of providing intake, assessment, and service, as
specified, to persons with developmental disabilities be held
confidential, and that information and records obtained in the
course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be
confidential, except that such information and records shall
be disclosed in specified cases. W&I Code Section 4514.
12)Requires that all information and records obtained in the
course of providing services to either voluntary or
involuntary recipients of mental health services be
confidential, and that information and records obtained in the
course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be
SB 1377
Page 4
confidential, except that such information and records shall
be disclosed in specified cases. W&I Code Section 5328.
13)Provides that otherwise confidential information and records
be disclosed, as specified, to the P&A agency designated by
the Governor in this state to fulfill the requirements and
assurances of the federal PADD Act for the protection and
advocacy of the rights of persons with developmental
disabilities, as defined (42 U.S.C. Section 15002(8)), and the
federal PAIMI Act for the protection and advocacy of the
rights of people with mental disabilities, including mental
illness, as defined (42 U.S.C. Section 10802(4)). W&I Code
Sections 4514.3(a), 5328.06(a).
FISCAL EFFECT : Unknown
COMMENTS :
Background regarding role of P&A agencies : The Protection and
Advocacy System comprises the nationwide network of
congressionally mandated, legally based disability rights
agencies. A P&A agency exists in every U.S. state and
territory. In 1978, Protection & Advocacy, Inc. (since renamed
Disability Rights California (DRC)) was designated as
California's P&A agency. Initially, the P&As served people with
developmental disabilities, pursuant to the federal
Developmental Disabilities Assistance and Bill of Rights Act
(PADD Act). Since then, the P&As' federal mandates have
expanded to include other people with disabilities, including
psychiatric, physical, sensory, and learning disabilities.
The required authority of P&A agencies is set forth in various
federal statutes and regulations pertaining to the respective
disability populations served by the P&As and the various
programs under which they operate. In 1991, the California
Legislature enacted SB1088 (McCorquodale), Chapter 534, Statutes
of 1991, which added Division 4.7 to the Welfare & Institutions
Code, and amended other, related provisions, setting out the
authority of the state's P&A agency in accord with federal law.
These statutes were amended in 2003 to conform to changes to
federal laws and regulations governing P&A agencies, including
amendments that expanded the availability of P&A services to
persons with all disabilities as defined in the federal
Americans with Disabilities Act and the state Fair Employment
and Housing Act. SB 577 (Keuhl), Chapter 878, Statutes of 2003.
SB 1377
Page 5
Under federal law, the P&A agencies must have authority to
investigate incidents of abuse or neglect of people with
disabilities; pursue administrative, legal, and other remedies
and approaches on behalf of people with disabilities; provide
information and training on the legal and service rights of
people with disabilities; have access to facilities, programs,
services, and the individuals with disabilities receiving such
services in those facilities and programs; and have access to
records pertaining to people with disabilities under specified
conditions. All P&As maintain a presence in facilities that
care for people with disabilities, where they monitor,
investigate and attempt to remedy adverse conditions. These
agencies also devote considerable resources to ensuring full
access to inclusive educational programs, financial
entitlements, healthcare, accessible housing and productive
employment opportunities. State law likewise specifies that, in
order to fulfill its investigatory authority, the P&A agency
shall have access to relevant records, as specified. See ,
e.g., Welf. & Inst. Code Sections 4902(a)(1), 4903(b).
Need for this bill : According to the author, "SB 1377 would
clarify a protection and advocacy agency's right to review
reports of abuse and neglect of individuals with development and
mental health disabilities without having to make a separate
assertion of probable cause in each case." The author further
explains the need for such clarification as follows:
Federally mandated protection and advocacy agencies such as
ĘDRC] are charged with protecting and advocating for the
rights of persons with disabilities. In order to fulfill this
function, federal law grants ĘP&A] agencies the right to
access reports prepared by state agencies that investigate
reports of abuse, neglect, injury or death of persons with
disabilities and perform certification or licensing reviews.
In the past, the Department of Public Health (DPH) provided
such reports to DRC in complete and unredacted form. However,
in 2009 the DPH changed this policy for two special
populations of vulnerable individuals with disabilities-people
with developmental disabilities and people with mental health
disabilities. Citing state privacy laws governing the records
of persons with developmental disabilities (W&I Code Section
4514) and mental health disabilities (W&I Code Section 5328),
SB 1377
Page 6
DPH began forwarding to DRC redacted records with all relevant
information about cases involving individuals with either a
developmental disability or mental health disability blacked
out. Under DPH's policy, DRC upon receipt of the redacted
report must then submit an individual written request to
receive an unredacted record for the case. For cases
involving people with all other disabilities, DRC continued to
receive reports from DPH in the usual unredacted form.
This extra step is unnecessary and unwarranted, supporters
state. California law (W&I Code Section 4903) already requires
the P&A agencies to maintain the confidentiality of this
information and the right to P&As to access this information is
not in dispute. Requiring this extra layer of bureaucratic
process creates a significant time lag that often extends months
before DRC receives the unredacted report. In some cases the
wait has been almost a year. This delay can jeopardize the
well-being of the individuals involved. In addition, the
requirement creates more administrative work and unnecessary
costs for the State.
This bill, sponsored by DRC, would specify that certain records,
including citation reports, licensing reports, survey reports,
plans of correction, and statements of deficiencies prepared, as
specified, shall be provided in unredacted form. With respect
to persons with developmental disabilities or mental health
disabilities, specifically, where existing law would prohibit
the disclosure of certain confidential information or records
subject only to limited statutory exceptions, this bill would
add to those enumerated exceptions that such information and
records shall also be disclosed to the P&A agency to the extent
that the information is contained in an unredacted citation
report, unredacted licensing report, unredacted survey report,
unredacted plan of correction, or unredacted statement of
deficiency prepared by an authorized licensing personnel or
authorized representatives described, as specified. This bill
would also specify that information obtained in those records
must be kept confidential by the P&A agency pursuant to existing
law.
Timely access to reports is integral to the intended functions
of P&A agencies. Existing law provides for numerous types of
reports that the P&A agency shall have access to under
subdivision (b) of Section 4903 of the Welfare and Institutions
Code. This bill would require that the P&A agency have access
SB 1377
Page 7
to the unredacted versions of the following records: citation
reports, licensing reports, survey reports, plans of correction,
and statements of deficiency prepared by a department
responsible for issuing a licensee or certificate to a program,
facility, or service serving an individual with a disability.
As explained by the sponsor of this bill, California's P&A
agency, DRC: "Federally mandated P&A's, such as ĘDRC] are
charged with protecting and advocating for the rights of persons
with disabilities. In order to fulfill this function, federal
law grants P&A's the right to access reports prepared by state
agencies that investigate reports of abuse, neglect with
disabilities and perform certification or licensing reviews."
And yet, DRC and the author of this bill comment that in recent
years a DPH policy has created delay in DRC's timely access to
unredacted citation reports, licensing reports, survey reports,
plans of correction, and statements of deficiencies prepared by
the department. Only after the P&A agency receives a redacted
version and submits a specific written request will the DPH
provide the unredacted version. On average, DRC reports, it
takes 32 days to get reports back from the date of request to
date received. Three reports took 305 days to reach DRC, while
another two took 215 days. Those wait times have reportedly
shortened since the DRC began working with DPH to develop a
standard request form. The last 10 records requested took an
average of 24 days, and five of these took 45 days.
By specifying that these specific types of records, in
unredacted form, are to be provided to the agency in statute, it
is hoped that this bill will eliminate this relatively recent
practice that has resulted in substantial delays of records,
which are vital to the P&A agency's ability to perform its
investigatory duty.
Existing law arguably gives the P&A agency the right to access
these reports (W&I Code Sections 4902(a), 4903(a)-(b)). To the
extent that the P&A agency's access to full reports is
obstructed by redacting information and only providing the full,
unredacted version upon specific written request, the addition
of these types of unredacted records to the existing list of
records in Section 4903 would add useful clarity and expedite
the process in the interest of these persons with disabilities
who are affected by delays in access to records.
Federal case law also cautions against the imposition of
SB 1377
Page 8
restrictions on P&A access that would impair the P&A agency's
ability to conduct timely investigations. In Iowa Protection
and Advocacy Services, Inc. v. Rasmussen, 206 F.R.D. 630, 2001
WL 1809404 (S.D. Iowa 2002), for example, the court held that
Congress, in enacting the PAIMI and PADD Acts, "occupied the
field" with respect to rules concerning disclosure of
investigatory information. "Protection and advocacy systems are
established as independent checks on state care and regulation
of care of dependent adults. That independent check would
become meaningless if a state was allowed to simply legislate
away a protection and advocacy system's power to investigate by
enacting restrictions." Id. at 639.
With respect to persons with developmental disabilities or
mental health disabilities, this bill would specify that
permissible disclosures of confidential information or records
shall also include disclosure to the P&A agency to the extent
that the information is contained in specified unredacted
records. This bill would provide that the confidentiality of
any information obtained in those reports must be maintained by
the P&A agency as specified under existing law.
This non-controversial bill has received no "No" votes, either
in Senate and Assembly policy committees or on the Senate Floor.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on June 19, 2012, and was
approved on a 10-0 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Disability Rights California (DRC) (sponsor)
California Advocates for Nursing Home Reform
California Association of Public Authorities for IHSS
Developmental Disabilities Area Board 10
Disability Rights Education Defense Fund
The Arc and United Cerebral Palsy in California
Opposition
None on file
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
SB 1377
Page 9