California Legislature—2013–14 Regular Session

Assembly Bill No. 1089

Introduced by Assembly Member Ian Calderon

February 22, 2013

An act to add Section 56426.10 to the Education Code, to amend Section 95014 of the Government Code, to amend Sections 123105 and 123110 of the Health and Safety Code, and to amend Sections 4643.5 and 4726 of the Welfare and Institutions Code, relating to foster care.

LEGISLATIVE COUNSEL’S DIGEST

AB 1089, as introduced, Ian Calderon. Foster care.

The Lanterman Developmental Disabilities Services Act authorizes the State Department of Developmental Services to contract with regional centers to provide services and support to individuals with developmental disabilities and their families. The services and supports to be provided to a regional center consumer are contained in an individual program plan or individualized family service plan developed in accordance with prescribed requirements.

Existing law also provides that if a consumer is or has been determined to be eligible for services by a regional center, he or she shall also be considered eligible by any other regional center if he or she has moved to another location within the state. In addition, existing law provides that whenever a consumer transfers from one regional center catchment area to another, the level and types of services and supports specified in the consumer’s individual program plan shall be authorized and secured, as specified.

Existing law requires a regional center that receives state funds to provide services to persons with disabilities to provide a fair hearing procedure, as specified, for resolving conflicts between the regional center and recipients of, or applicants for, service. Existing law generally provides that regional center records are confidential. Existing law requires, however, that a recipient or an applicant, including his or her parents or authorized representatives, as specified, have access to the recipient’s or applicant’s records that are maintained by the regional center for purposes of the provisions governing fair hearing procedures. Any person who willfully and knowingly violates the requirement governing access to records is guilty of a misdemeanor.

Existing law also requires an early education program provided by a local education agency to include services specially designed to meet the unique needs of children with exceptional needs from birth to 3 years of age and their families.

This bill would specify the transfer procedures that would apply when children who are under 3 years of age who are receiving specified benefits transfer between regional centers or local education agencies, or from a local education agency to a catchment agency where there are no services, as specified. Among other things, the bill would provide that a child shall have the right to receive comparable early intervention services from the new catchment area’s regional center, regardless of whether the child has been deemed eligible for provision of and payment for early intervention services through the regional center. By imposing a higher level of service on local entities, the bill would impose a state-mandated local program.

The bill would also provide that regional center consumers would be entitled to a complete copy of their records, at no charge, upon written request and proof that the records are needed to support an appeal regarding eligibility for a public benefit program. Because a violation of the provisions governing a consumer’s access to regional center records is a crime, the bill would revise the scope and definition of a crime, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares the following:

(a) Children in foster care are at increased risk for serious
developmental delays and disabilities as a result of abuse, neglect,
and prenatal exposure to drugs.

(b) Timely and consistent provision of quality remediation and
therapeutic services for children with developmental delays and
disabilities, such as those provided by California’s regional centers,
have been shown to greatly improve outcomes for these children.
Unfortunately, children in foster care are at increased risk for a
disruption in services due to frequent placement changes. These
disruptions cause dramatic set-backs in a child’s development and
well-being.

(c) It is imperative that children in foster care be protected from
interruptions in their regional center services, and thus, a clear set
of timelines for the transfer process from one regional center to
another is needed.

SEC. 2.  

Section 56426.10 is added to the Education Code, to
read:

56426.10.  

(a) The transfer procedures and timeline as provided
under subdivision (d) of Section 4643.5 of the Welfare and
Institutions Code shall apply if either of the following apply to a
child:

(1) If all of the following apply to a child:

(A) The child is under three years of age.

(B) The child has solely low-incidence disabilities.

(C) The child is receiving services under this part.

(D) The child has an order for foster care placement or is
awaiting foster care placement, or is receiving Aid to Families
with Dependent Children-Foster Care (AFDC-FC), Kinship
Guardianship Assistance Payments (Kin-GAP), or Adoption
Assistance Program (AAP) benefits.

(E) The child transfers between local education agencies.

(2) If an infant or toddler has an order for foster care placement
or is awaiting foster care placement, or is receiving AFDC-FC,
Kin-GAP, or AAP benefits, and transfers from a local education
agency to a catchment area where there are no services available
for the infant or toddler through the local education agency.

(b) A child described in paragraph (2) of subdivision (a) shall
have the right to receive comparable early intervention services
from the new catchment area’s regional center, regardless of
whether the child has been deemed eligible for provision of and
payment for early intervention services through the regional center.

SEC. 3.  

Section 95014 of the Government Code is amended
to read:

95014.  

(a) The term “eligible infant or toddler” for the
purposes of this title means infants and toddlers from birth through
two years of age, for whom a need for early intervention services,
as specified in the federal Individuals with Disabilities Education
Act (20 U.S.C. Sec. 1431 et seq.) and applicable regulations, is
documented by means of assessment and evaluation as required
in Sections 95016 and 95018 and who meet one of the following
criteria:

(1) Infants and toddlers with a developmental delay in one or
more of the following five areas: cognitive development; physical
and motor development, including vision and hearing;
communication development; social or emotional development;
or adaptive development. Developmentally delayed infants and
toddlers are those who are determined to have a significant
difference between the expected level of development for their
age and their current level of functioning. This determination shall
be made by qualified personnel who are recognized by, or part of,
a multidisciplinary team, including the parents. A significant
difference is defined as a 33-percent delay in one developmental
area before 24 months of age, or, at 24 months of age or older,
either a delay of 50 percent in one developmental area or a
33-percent delay in two or more developmental areas. The age for
use in determination of eligibility for the Early Intervention
Program shall be the age of the infant or toddler on the date of the
initial referral to the Early Intervention Program.

(2) Infants and toddlers with established risk conditions, who
are infants and toddlers with conditions of known etiology or
conditions with established harmful developmental consequences.
The conditions shall be diagnosed by a qualified personnel
recognized by, or part of, a multidisciplinary team, including the
parents. The condition shall be certified as having a high
probability of leading to developmental delay if the delay is not
evident at the time of diagnosis.

(b) Regional centers and local educational agencies shall be
responsible for ensuring that eligible infants and toddlers are served
as follows:

(1) The State Department of Developmental Services and
regional centers shall be responsible for the provision of
appropriate early intervention services that are required for
California’s participation in Part C of the federal Individuals with
Disabilities Education Act (20 U.S.C. Sec. 1431 et seq.) for all
infants eligible under Section 95014, except for those infants with
solely a visual, hearing, or severe orthopedic impairment, or any
combination of those impairments, who meet the criteria in
Sections 56026 and 56026.5 of the Education Code, and in Section
3030(a), (b), (d), or (e) of, and Section 3031 of, Title 5 of the
California Code of Regulations.

(2) The State Department of Education and local educational
agencies shall be responsible for the provision of appropriate early
intervention services in accordance with Part C of the federal
Individuals with Disabilities Education Act (20 U.S.C. Sec. 1431
et seq.) for infants with solely a visual, hearing, or severe
orthopedic impairment, or any combination of those impairments,
who meet the criteria in Sections 56026 and 56026.5 of the
Education Code, and in Section 3030(a), (b), (d), or (e) of, and
Section 3031 of, Title 5 of the California Code of Regulations,
and who are not eligible for services under the Lanterman
Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions
Code).

begin insert

(3) (A) The transfer procedures and timeline as provided under
subdivision (d) of Section 4643.5 of the Welfare and Institutions
Code shall apply if either of the following apply to an eligible
infant or toddler:

end insert begin insert

(i) The child (I) has an order for foster care placement or is
awaiting foster care placement, or is receiving Aid to Families
with Dependent Children-Foster Care (AFDC-FC), Kinship
Guardianship Assistance Payments (Kin-GAP), or Adoption
Assistance Program (AAP) benefits, and (II) transfers between
regional centers or local education agencies.

end insert begin insert

(ii) The child (I) has an order for foster care placement or is
awaiting foster care placement, or is receiving AFDC-FC,
Kin-GAP, or AAP benefits, and (II) transfers from a local education
agency to a catchment area where there are no services available
for the infant or toddler through the local education agency.

end insert begin insert

(B) A child described in clause (ii) of subparagraph (A) shall
have the right to receive comparable early intervention services
from the new catchment area’s regional center, regardless of
whether the child has been deemed eligible for provision of and
payment for early intervention services through the regional center.

end insert

(c) For infants and toddlers and their families who are eligible
to receive services from both a regional center and a local
educational agency, the regional center shall be the agency
responsible for providing or purchasing appropriate early
intervention services that are beyond the mandated responsibilities
of local educational agencies and that are required for California’s
participation in Part C of the federal Individuals with Disabilities
Education Act (20 U.S.C. Sec. 1431 et seq.). The local educational
agency shall provide special education services up to its funded
program capacity as established annually by the State Department
of Education in consultation with the State Department of
Developmental Services and the Department of Finance.

(d) No agency or multidisciplinary team, including any agency
listed in Section 95012, shall presume or determine eligibility,
including eligibility for medical services, for any other agency.
However, regional centers and local educational agencies shall
coordinate intake, evaluation, assessment, and individualized
family service plans for infants and toddlers and their families who
are served by an agency.

(e) Upon termination of the program pursuant to Section 95003,
the State Department of Developmental Services shall be
responsible for the payment of services pursuant to this title.

SEC. 4.  

Section 123105 of the Health and Safety Code is
amended to read:

123105.  

As used in this chapter:

(a) “Health care provider” means any of the following:

(1) A health facility licensed pursuant to Chapter 2 (commencing
with Section 1250) of Division 2.

(2) A clinic licensed pursuant to Chapter 1 (commencing with
Section 1200) of Division 2.

(3) A home health agency licensed pursuant to Chapter 8
(commencing with Section 1725) of Division 2.

(4) A physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business
and Professions Code or pursuant to the Osteopathic Act.

(5) A podiatrist licensed pursuant to Article 22 (commencing
with Section 2460) of Chapter 5 of Division 2 of the Business and
Professions Code.

(6) A dentist licensed pursuant to Chapter 4 (commencing with
Section 1600) of Division 2 of the Business and Professions Code.

(7) A psychologist licensed pursuant to Chapter 6.6
(commencing with Section 2900) of Division 2 of the Business
and Professions Code.

(8) An optometrist licensed pursuant to Chapter 7 (commencing
with Section 3000) of Division 2 of the Business and Professions
Code.

(9) A chiropractor licensed pursuant to the Chiropractic Initiative
Act.

(10) A marriage and family therapist licensed pursuant to
Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code.

(11) A clinical social worker licensed pursuant to Chapter 14
(commencing with Section begin delete 4990) end delete begin insert 4991) end insert of Division 2 of the
Business and Professions Code.

(12) A physical therapist licensed pursuant to Chapter 5.7
(commencing with Section 2600) of Division 2 of the Business
and Professions Code.

(13) An occupational therapist licensed pursuant to Chapter 5.6
(commencing with Section 2570).

(14) A professional clinical counselor licensed pursuant to
Chapter 16 (commencing with Section 4999.10) of Division 2 of
the Business and Professions Code.

begin insert

(15) A nonprofit regional center corporation which is contracted
with the Department of Developmental Services pursuant to
Chapter 5 (commencing with Section 4620) of Division 4.5 of the
Welfare and Institutions Code.

end insert

(b) “Mental health records” means patient records, or discrete
portions thereof, specifically relating to evaluation or treatment of
a mental disorder. “Mental health records” includes, but is not
limited to, all alcohol and drug abuse records.

(c) “Patient” means a patient or former patient of a health care
provider.

(d) “Patient records” means records in any form or medium
maintained by, or in the custody or control of, a health care
provider relating to the health history, diagnosis, or condition of
a patient, or relating to treatment provided or proposed to be
provided to the patient. “Patient records” includes only records
pertaining to the patient requesting the records or whose
representative requests the records. “Patient records” does not
include information given in confidence to a health care provider
by a person other than another health care provider or the patient,
and that material may be removed from any records prior to
inspection or copying under Section 123110 or 123115. “Patient
records” does not include information contained in aggregate form,
such as indices, registers, or logs.

(e) “Patient’s representative” or “representative” means any of
the following:

(1) A parent or guardian of a minor who is a patient.

(2) The guardian or conservator of the person of an adult patient.

(3) An agent as defined in Section 4607 of the Probate Code,
to the extent necessary for the agent to fulfill his or her duties as
set forth in Division 4.7 (commencing with Section 4600) of the
Probate Code.

(4) The beneficiary as defined in Section 24 of the Probate Code
or personal representative as defined in Section 58 of the Probate
Code, of a deceased patient.

(f) “Alcohol and drug abuse records” means patient records, or
discrete portions thereof, specifically relating to evaluation and
treatment of alcoholism or drug abuse.

SEC. 5.  

Section 123110 of the Health and Safety Code is
amended to read:

123110.  

(a) Notwithstanding Section 5328 of the Welfare and
Institutions Code, and except as provided in Sections 123115 and
123120, any adult patient of a health care provider, any minor
patient authorized by law to consent to medical treatment, and any
patient representative shall be entitled to inspect patient records
upon presenting to the health care provider a written request for
those records and upon payment of reasonable clerical costs
incurred in locating and making the records available. However,
a patient who is a minor shall be entitled to inspect patient records
pertaining only to health care of a type for which the minor is
lawfully authorized to consent. A health care provider shall permit
this inspection during business hours within five working days
after receipt of the written request. The inspection shall be
conducted by the patient or patient’s representative requesting the
inspection, who may be accompanied by one other person of his
or her choosing.

(b) Additionally, any patient or patient’s representative shall be
entitled to copies of all or any portion of the patient records that
he or she has a right to inspect, upon presenting a written request
to the health care provider specifying the records to be copied,
together with a fee to defray the cost of copying, that shall not
exceed twenty-five cents ($0.25) per page or fifty cents ($0.50)
per page for records that are copied from microfilm and any
additional reasonable clerical costs incurred in making the records
available. The health care provider shall ensure that the copies are
transmitted within 15 days after receiving the written request.

(c) Copies of X-rays or tracings derived from
electrocardiography, electroencephalography, or electromyography
need not be provided to the patient or patient’s representative under
this section, if the original X-rays or tracings are transmitted to
another health care provider upon written request of the patient or
patient’s representative and within 15 days after receipt of the
request. The request shall specify the name and address of the
health care provider to whom the records are to be delivered. All
reasonable costs, not exceeding actual costs, incurred by a health
care provider in providing copies pursuant to this subdivision may
be charged to the patient or representative requesting the copies.

(d) (1) Notwithstanding any provision of this section, and except
as provided in Sections 123115 and 123120, any patient or former
patient or the patient’s representative shall be entitled to a copy,
at no charge, of the relevant portion of the patient’s records, upon
presenting to the provider a written request, and proof that the
records are needed to support an appeal regarding eligibility for a
public benefit program. These programs shall be the Medi-Cal
program, social security disability insurance benefits, and
Supplemental Security Income/State Supplementary Program for
the Aged, Blind and Disabled (SSI/SSP) benefits. For purposes of
this subdivision, “relevant portion of the patient’s records” means
those records regarding services rendered to the patient during the
time period beginning with the date of the patient’s initial
application for public benefits up to and including the date that a
final determination is made by the public benefits program with
which the patient’s application is pending.

(2) Although a patient shall not be limited to a single request,
the patient or patient’s representative shall be entitled to no more
than one copy of any relevant portion of his or her record free of
charge.

(3) This subdivision shall not apply to any patient who is
represented by a private attorney who is paying for the costs related
to the patient’s appeal, pending the outcome of that appeal. For
purposes of this subdivision, “private attorney” means any attorney
not employed by a nonprofit legal services entity.

(e) If the patient’s appeal regarding eligibility for a public benefit
program specified in subdivision (d) is successful, the hospital or
other health care provider may bill the patient, at the rates specified
in subdivisions (b) and (c), for the copies of the medical records
previously provided free of charge.

(f) If a patient or his or her representative requests a record
pursuant to subdivision (d), the health care provider shall ensure
that the copies are transmitted within 30 days after receiving the
written request.

(g) This section shall not be construed to preclude a health care
provider from requiring reasonable verification of identity prior
to permitting inspection or copying of patient records, provided
this requirement is not used oppressively or discriminatorily to
frustrate or delay compliance with this section. Nothing in this
chapter shall be deemed to supersede any rights that a patient or
representative might otherwise have or exercise under Section
1158 of the Evidence Code or any other provision of law. Nothing
in this chapter shall require a health care provider to retain records
longer than required by applicable statutes or administrative
regulations.

(h) This chapter shall not be construed to render a health care
provider liable for the quality of his or her records or the copies
provided in excess of existing law and regulations with respect to
the quality of medical records. A health care provider shall not be
liable to the patient or any other person for any consequences that
result from disclosure of patient records as required by this chapter.
A health care provider shall not discriminate against classes or
categories of providers in the transmittal of X-rays or other patient
records, or copies of these X-rays or records, to other providers as
authorized by this section.

Every health care provider shall adopt policies and establish
procedures for the uniform transmittal of X-rays and other patient
records that effectively prevent the discrimination described in
this subdivision. A health care provider may establish reasonable
conditions, including a reasonable deposit fee, to ensure the return
of original X-rays transmitted to another health care provider,
provided the conditions do not discriminate on the basis of, or in
a manner related to, the license of the provider to which the X-rays
are transmitted.

(i) Any health care provider described in paragraphs (4) to (10),
inclusive, of subdivision (a) of Section 123105 who willfully
violates this chapter is guilty of unprofessional conduct. Any health
care provider described in paragraphs (1) to (3), inclusive, of
subdivision (a) of Section 123105 that willfully violates this chapter
is guilty of an infraction punishable by a fine of not more than one
hundred dollars ($100). The state agency, board, or commission
that issued the health care provider’s professional or institutional
license shall consider a violation as grounds for disciplinary action
with respect to the licensure, including suspension or revocation
of the license or certificate.

(j) This section shall be construed as prohibiting a health care
provider from withholding patient records or summaries of patient
records because of an unpaid bill for health care services. Any
health care provider who willfully withholds patient records or
summaries of patient records because of an unpaid bill for health
care services shall be subject to the sanctions specified in
subdivision (i).

begin insert

(k) Notwithstanding any provision of this section, and except
as provided in Sections 123115 and 123120, any regional center
consumer or former regional center consumer or the regional
center consumer’s representative, or infant or toddler receiving
or formerly receiving early intervention services or the infant or
toddler’s representative, shall be entitled to a complete copy, at
no charge, of the consumer’s regional center records, upon
presenting to the regional center a written request and proof that
the records are needed to support an appeal regarding eligibility
for a public benefit program. For purposes of this subdivision
“public benefit program” includes, but is not limited to, the
Medi-Cal program, social security disability insurance benefits,
and Supplemental Security Income/State Supplementary Program
for the Aged, Blind and Disabled (SSI/SSP) benefits.

end insert

SEC. 6.  

Section 4643.5 of the Welfare and Institutions Code
is amended to read:

4643.5.  

(a) If a consumer is or has been determined to be
eligible for services by a regional center, he or she shall also be
considered eligible by any other regional center if he or she has
moved to another location within the state.

(b) An individual who is determined by any regional center to
have a developmental disability shall remain eligible for services
from regional centers unless a regional center, following a
comprehensive reassessment, concludes that the original
determination that the individual has a developmental disability
is clearly erroneous.

(c) Whenever a consumer transfers from one regional center
catchment area to another, the level and types of services and
supports specified in the consumer’s individual program plan shall
be authorized and secured, if available, pending the development
of a new individual program plan for the consumer. If these
services and supports do not exist, the regional center shall convene
a meeting to develop a new individual program plan within 30
days. Prior to approval of the new individual program plan, the
regional center shall provide alternative services and supports that
best meet the individual program plan objectives in the least
restrictive setting. The department shall develop guidelines that
describe the responsibilities of regional centers in ensuring a
smooth transition of services and supports from one regional center
to another, including, but not limited to, pretransferring planning
and a dispute resolution process to resolve disagreements between
regional centers regarding their responsibilities related to the
transfer of case management services.

begin insert

(d) If a consumer is transferring from one regional center’s
catchment area to that of another regional center’s and either (1)
has an order for foster care placement or is awaiting foster care
placement, or (2) is receiving Aid to Families with Dependent
Children-Foster Care (AFDC-FC), Kinship Guardianship
Assistance Payments (Kin-GAP), or Adoption Assistance Program
(AAP) benefits, the following shall apply:

end insert begin insert

(A) The sending regional center shall prepare and send a
consumer’s physical case file to the receiving regional center no
later than two business days following the receipt of notice that
the consumer has moved out of the sending regional center’s
catchment area. For purposes of this subdivision, this notice of
relocation may be provided verbally or in writing by the caregiver,
the county social worker or other child welfare agency employee,
the consumer’s dependency court attorney, a Court Appointed
Special Advocate (CASA), or the court itself.

end insert begin insert

(B) The receiving regional center shall accept financial
responsibility for the consumer’s case, and notify the family of the
assignment of a service coordinator, within two business days of
receipt of the physical file.

end insert begin insert

(C) Services and supports, as provided for in the consumer’s
current individual family service plan or individual program plan,
shall commence within five business days from the date the sending
regional center received notice that the child moved out of the
catchment area.

end insert begin insert

(D) (i) If identical services to those provided in the child’s
existing individual family service plan or individual program plan
are not available, the receiving regional center shall provide
comparable services until a new individual program plan meeting
can be held to determine appropriate services.

end insert begin insert

(ii) If an infant or toddler transfers from a local education
agency to a catchment area where there are no services available
for the infant or toddler through the local education agency and
either (I) has an order for foster care placement or is awaiting
foster care placement, or (II) is receiving AFDC-FC, Kin-GAP,
or AAP benefits both of the following shall apply:

end insert begin insert

(ia) The child shall have the right to receive comparable early
intervention services from the new catchment area’s regional
center, regardless of whether the child has been deemed eligible
for provision of and payment for early intervention services
through the regional center.

end insert begin insert

(ib) The requirement set forth in subparagraph (A) shall apply.

end insert

SEC. 7.  

Section 4726 of the Welfare and Institutions Code is
amended to read:

4726.  

begin insert (a) end insert begin insert   end insert Notwithstanding the provisions of Section 5328,
access to records shall be provided to an applicant for, or recipient
of, services or to his or her authorized representative, including
the person appointed as a developmental services decisionmaker
pursuant to Section 319, 361, or 726, for purposes of the appeal
procedure under this chapter.

begin insert

(b) Notwithstanding any provision of this section, and except
as provided in Sections 123115 and 123120 of the Health and
Safety Code, any regional center consumer or former regional
center consumer or the regional center consumer’s representative,
or infant or toddler receiving or formerly receiving Early
Intervention services or the infant or toddler’s representative, shall
be entitled to a complete copy, at no charge, of the consumer’s
regional center records, upon presenting to the regional center a
written request and proof that the records are needed to support
an appeal regarding eligibility for a public benefit program. For
purposes of this subdivision, “public benefit program” includes,
but is not limited to, the Medi-Cal program, social security
disability insurance benefits, and Supplemental Security
Income/State Supplementary Program for the Aged, Blind and
Disabled (SSI/SSP) benefits.

end insert

SEC. 8.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.