BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 724|
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CONSENT
Bill No: SB 724
Author: Emmerson (R)
Amended: 4/29/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 5/7/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SUBJECT : Liability: charitable vision screenings
SOURCE : California Lions Friends In Sight
DIGEST : This bill provides qualified immunity from damages or
injury liability to a nonprofit charitable organization,
licensed optometrist, ophthalmologist, or trained volunteer
providing vision screenings or donated or recycled glasses, as
specified.
ANALYSIS :
Existing law:
1.Provides, under the California Constitution, that a person may
not be deprived of life, liberty, or property without due
process of law or denied equal protection of the laws. The
California Constitution also provides that no citizen, or
class of citizen, shall be granted privileges or immunities
which, upon the same terms, shall not be granted to all
citizens.
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2.Provides protection for all Californians from another person's
negligence.
3.States legislative intent to create an environment in which
philanthropy and voluntarism in the health care field and the
vast benefits arising from it for the citizens of California
can be encouraged.
4.Provides immunity from liability to a director or executive
officer of a nonprofit public benefit corporation for damages
(other than those resulting from reckless or wanton misconduct
or gross or intentional negligence) if the act or omission was
done in good faith and within the scope of duty. If the
damages are not covered by a liability insurance policy, the
volunteer director or executive officer is not liable if it
can be established that all reasonable efforts were made in
good faith to obtain available liability insurance. Similar
immunities are provided to unpaid directors and officers of
mutual benefit and nonprofit religious corporations.
Existing federal law, the Volunteer Protection Act of 1997,
provides a limitation on liability for volunteers of nonprofit
organizations and governmental entities.
This bill:
1.Provides a qualified immunity from liability for any damage or
injury, except for injury resulting from gross negligence or a
willful act, on the part of a nonprofit charitable
organization that provides vision screenings and, if
applicable, provides donated or recycled glasses, or a
participating licensed optometrist, ophthalmologist, or
trained volunteer who works with such a nonprofit charitable
organization in the performance of vision screenings, if all
of the following conditions are met:
The vision screening is provided to address ocular
health concerns and, if applicable, to provide a temporary
solution in the form of donated or recycled eyeglasses
until the patient can get a full examination and
eyeglasses.
The vision screening is not intended to replace a full
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ocular health examination provided by a licensed
optometrist or ophthalmologist.
The patient signs a waiver acknowledging that the
services provided are a temporary solution until the
patient can get a full examination by a licensed
optometrist or ophthalmologist.
Each vision screening is supervised by an attending
licensed optometrist or ophthalmologist.
The eyeglass prescription determinations and ocular
health recommendations are provided by an attending
licensed optometrist or ophthalmologist.
A written prescription is not provided to the patient.
The eyeglasses provided to the patients are a close or
approximate match, within tolerances allowed by the
attending licensed optometrist or ophthalmologist, to the
prescription determined during the vision screening.
The vision screening and eyeglasses are provided without
a charge.
The optometrist, ophthalmologist, or volunteer is
authorized by the nonprofit organization to provide the
vision screening and eyeglasses on behalf of the nonprofit
organization and is acting within the scope of his/her
authorized responsibilities and the guidelines of the
nonprofit charitable organization when providing the vision
screening or eyeglasses.
The nonprofit charitable organization provides
procedural, risk management, and quality control training,
as applicable, to the participating optometrist,
ophthalmologist, or volunteer who provides the vision
screening or eyeglasses.
1.Does not provide immunity if an action is brought by an
officer of a state or local government pursuant to state or
local law or if the conduct of the nonprofit charitable
organization, optometrist, ophthalmologist, or volunteer
includes any of the following types of misconduct: (1) a
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crime of violence; (2) a hate crime; (3) an act involving a
sexual offense; (4) an act involving misconduct in violation
of federal or state civil rights laws; or (5) an act performed
while the defendant was under the influence of drugs or
alcohol.
2.Defines "nonprofit charitable organization" to mean an
organization exempt from federal income tax as an organization
described in Internal Revenue Code Section 501(c)(3).
3.Defines "vision screening" to mean a test or examination of an
individual using a portion of the usual examination procedures
in a comprehensive eye examination and refraction, that are
selected or directed by an attending licensed optometrist or
ophthalmologist, and are within the guidelines of the
nonprofit charitable organization.
Background
Due to the economic decline over the last several years, it has
become increasingly important for individuals of low income or
without health insurance to have access to medical care
services. Although many individuals may have access to
emergency care services provided through hospitals, there are
few options for these individuals to receive proper eye care
services.
Non-charitable organizations have begun providing volunteer
vision screenings and eyeglass donations to provide individuals,
with no other means to obtain such services, with the gift of
sight. These non-charitable organizations rely on volunteer
optometrists, ophthalmologists, and others, to provide vision
screenings and eyeglass fittings.
Of concern to these nonprofit organizations and volunteers is
liability for negligent treatment of the individuals to whom
vision screening and eyeglass fitting services are provided.
Because of the potential for being held liable for damages to an
individual treated by the volunteer, these volunteers are wary
of providing these volunteer services to their communities.
Although four other states, Alaska, Arizona, Oregon, and
Washington currently provide vision screening and eyeglass
fitting volunteers with limited liability from damages,
California has no such protection.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/8/13)
California Lions Friends In Sight (source)
California Association of Nonprofits
Civil Justice Association of California
ARGUMENTS IN SUPPORT : According to the author's office,
"Current law does not address the criteria for vision screenings
or the distribution of used or recycled eyeglasses. The Federal
Volunteer Protection Act provides immunity from liability for
individuals providing volunteer services for government or
nonprofit entities as long as the volunteer does not commit an
act or omission that constitutes gross negligence. In general,
the Volunteer Protection Act provides that, if a volunteer meets
certain criteria, he or she has a complete defense to an action
and has no liability.
"This bill would specify the criteria for immunity to nonprofit
entities for vision screenings and associated distribution of
used or recycled eyeglasses."
In support, the Civil Justice Association of California (CJAC)
argues that this bill is consistent with federal law, which
recognizes that communities suffer from the withdrawal of
nonprofits and their volunteers due to liability concerns and
that it is in the interest of the country to have liability
reform for volunteers. Further, CJAC notes that the "bill is
narrowly drafted and limits this protection to only those cases
where the screening and provision of eyeglasses (if needed) are
a temporary solution, the screening is supervised by a licensed
optometrist or ophthalmologist, the patient is aware he or she
needs a full examination and the services are provided free of
charge. [This bill] furthers the important policy of
encouraging the provision of charitable, much-needed social
services without fearing costly lawsuits."
(AL:nl):ej 5/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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