BILL NUMBER: AB 1089 INTRODUCED
BILL TEXT
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).
(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:
(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.
(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.
(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.
(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 4990) 4991) 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.
(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.
(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).
(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.
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.
(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:
(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.
(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.
(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.
(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.
(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:
(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.
(ib) The requirement set forth in subparagraph (A) shall apply.
SEC. 7. Section 4726 of the Welfare and Institutions Code is
amended to read:
4726. (a) 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.
(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.
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.