BILL ANALYSIS Ó SB 724 Page 1 Date of Hearing: June 25, 2013 ASSEMBLY COMMITTEE ON JUDICIARY Bob Wieckowski, Chair SB 724 (Emmerson) - As Amended: April 29, 2013 Proposed Consent SENATE VOTE : 37-0 SUBJECT : Liability: Charitable vision Screenings KEY ISSUE : Should nonprofit organizations and participating optometrists, ophthalmologists and trained volunteers be afforded qualified immunity when providing charitable vision screenings and RECYCLED eyeglass distribution? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This non-controversial bill seeks to provide qualified immunity from liability for damage or injury, except for injury resulting from gross negligence or a willful act, to a nonprofit charitable organization that provides vision screenings and, if applicable, donated or recycled glasses, as well as participating licensed optometrists, ophthalmologists, or trained volunteers who work with such nonprofit charitable organizations to provide charitable vision screenings under appropriate conditions. A broad host of groups support this bill and there is no known opposition. SUMMARY : Seeks to provide qualified immunity from liability for damage or injury to a nonprofit charitable organization that provides vision screenings and, if applicable, donated or recycled glasses, as well as participating licensed optometrists, ophthalmologists, or trained volunteers who work with such nonprofit charitable organizations to provide charitable vision screenings under appropriate conditions. Specifically, this bill : 1)Provides immunity from liability for a nonprofit organization, or a licensed optometrist, ophthalmologist, or trained volunteer working with such a nonprofit organization in the SB 724 Page 2 performance of vision screenings, where all of the following qualifications are met: a) The vision screening is provided to address ocular health concerns and, if applicable; b) The vision screening is not intended to replace a full ocular health examination provided by a licensed optometrist or ophthalmologist; c) 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; d) Each vision screening is supervised by an attending licensed optometrist or ophthalmologist; e) The eyeglass prescription determinations and ocular health recommendations are provided by an attending licensed optometrist or ophthalmologist; f) A written prescription is not provided to the patient; g) The eyeglasses provided to the patients are a close match to the prescription determined during the vision screening; h) The vision screening and eyeglasses are provided without a charge; i) 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 or her authorized responsibilities and the guidelines of the nonprofit charitable organization when providing the vision screening or eyeglasses; and j) 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. 2)Withholds immunity from liability if an action is brought by an officer of a state or local government pursuant to state or local law. 3)Withholds immunity from liability if the conduct of the nonprofit charitable organization, optometrist, ophthalmologist or volunteer includes any of the following types of misconduct: SB 724 Page 3 a) A crime of violence; b) A hate crime; c) An act involving a sexual offense; d) An act involving misconduct in violation of federal or state civil rights laws; e) An act performed while the defendant was under the influence of drugs or alcohol. 4)Defines "nonprofit charitable organization" as an organization exempt from federal income tax as an organization described in Section 501(c)(3) of the Internal Revenue Code. 5)Defines "vision screening" as 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. EXISTING LAW : 1)Provides food facilities donating food to a nonprofit charitable organization or food bank with similar limited liability for damage or injury resulting from consumption of the donated food. (Civil Code Section 1714.25.) 2)Grants 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 the officer's 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. (Corporations Code Section 5239.) 3)Provides similar qualified immunity to unpaid directors and officers of mutual benefit and nonprofit religious corporations. (Corporations Code Section 5047.5.) 4)Provides a federal limitation on liability for volunteers of nonprofit organizations and governmental entities. (Volunteer Protection Act of 1997, 42 U.S.C. Section 14500 et seq.) SB 724 Page 4 5)States legislative intent to create an environment in which philanthropy and volunteerism in the health care field and the vast benefits to California citizens arising therefrom can be encouraged. (Health & Safety Code Section 101983.) 6)Protects from civil liability persons who, in good faith and not for compensation, render emergency medical or nonmedical care at the scene of an emergency. (California's "Good Samaritan" law. Health & Safety Code Section 1799.102.) 7) Protects private nonprofits, their members and their employees who administer flu vaccines under a governmental immunization program from civil liability for any injury caused in the administration of vaccines, so long as the injury was not caused by gross negligence or willful misconduct. (Health & Safety Code Section 120392.3.) 8) Provides protection from civil liability to private businesses and nonprofit organizations that, voluntarily and without expectation or receipt of compensation, donate resources during a state of war, a state of emergency, or to an emergency medical training services program. (Gov. Code Section 8655.5) COMMENTS : This non-controversial bill seeks to reasonably reassure nonprofit charitable organizations and participating licensed optometrists, ophthalmologists, and volunteers that they can comfortably participate in charitable vision screenings and eyeglass donation programs to those in need without fear of possible lawsuits. According to the author: There is a significant need in California for vision screenings for those who cannot afford or have limited access to eye care. To address this need, nonprofit charitable organizations offer free vision screenings throughout the state to provide a temporary solution to the visually impaired until a more permanent solution is available. These nonprofit organizations rely on licensed optometrists, ophthalmologists, and other volunteers to provide vision screenings and eyeglass fittings. While the Federal Volunteer Protection Act grants immunity from SB 724 Page 5 liability for individuals providing volunteer services for government or nonprofit entities, current law does not address the criteria used for vision screenings or the associated distribution of eyeglasses. SB 724 would provide qualified immunity to a nonprofit charitable organization, or a participating licensed optometrist, ophthalmologist, or trained volunteer who works with the nonprofit entity, for vision screenings or the associated distribution of donated or recycled eyeglasses. By specifying the criteria for limitation of liability, it will help encourage optometrists, ophthalmologists, and volunteers to offer their services at free vision screenings, thereby increasing access to care for Californians in need. Rational Basis Test Appears Easily Met Here : In holding that under state and federal equal protection provisions a statute may single out a class for distinctive treatment only if such classification bears a rational relation to the purposes of the legislation, the California Supreme Court has cited United States Supreme Court holdings that "[a] classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstances shall be treated alike.' [Citations omitted.] Thus, when a statute provides that one class shall receive different treatment from another, our constitutional provisions demand more 'than nondiscriminatory application within the class . . . establish[ed] . . . . [They] also [impose] a requirement of some rationality in the nature of the class singled out.'" (Brown v. Merlo (1973) 8 Cal.3d 855, 862-63.) By limiting the recoverable damages of those who receive charitable vision screenings and donated eyeglasses, this bill creates a classification of individuals who do not have the same protection against damage and injury resulting from the negligent conduct of the nonprofit organization, optometrist, ophthalmologist, or volunteer. In effect, the rational basis standard outlined above requires that the establishment of this classification and limitations on its potential for recovery be reasonably related to a legitimate government interest. There are many arguable bases for providing qualified immunity for vision screening volunteerism. First, for example, vision screening services and donated glasses are typically not SB 724 Page 6 provided by emergency service hospitals where people of limited means may otherwise go for medical services. As a result, there is a strong need to provide vision screening and glasses to individuals who would not otherwise have access to these services. Second, philanthropic support for these services clearly should be encouraged so that these services are available to these individuals. Third, philanthropy of this nature pays for necessary expenditures that otherwise would have to be paid by patients or by the government. Legislative Policy to Encourage Philanthropy and Volunteerism Also Furthered by This Measure : The Brown Court noted above further held that "[i]n determining the scope of the class singled out for special burdens or benefits, a court cannot confine its view to the terms of the specific statute under attack, but must judge the enactment's operation against the background of other legislative, administrative and judicial directives which govern the legal rights of similarly situated persons. As the United States Supreme Court recognized long ago: 'The question of constitutional validity is not to be determined by artificial standards [confining review "within the four corners" of a statute]. What is required is that state action, whether through one agency or another, or through one enactment or more than one, shall be consistent with the restrictions of the Federal Constitution.' [Citations.]" (Brown v. Merlo, supra, 8 Cal.3d at 862.) Existing state law provides a legislative directive to create an environment in which philanthropy and volunteerism in the health care field and the benefits arising from it for the citizens of California can be encouraged. (Health & Saf. Code Section 101983.) In addition, this bill is modeled after a federal legislative directive, the Volunteer Protection Act (VPA), which provides limitation on liability for nonprofit volunteers. As under the VPA, this bill would provide a qualified immunity from liability for volunteers acting within the scope of the volunteers' responsibilities in the nonprofit organization, were properly licensed or authorized by the appropriate authorities, and the harm was not caused by willful misconduct or gross negligence. (See, 42 U.S.C. Section 14503(a).) In addition to conforming to the provisions of the VPA, this bill would require the nonprofit organization to adhere to risk management procedures, including mandatory training for volunteers. (See, 42 U.S.C. Section 14503(d).) Further, the SB 724 Page 7 immunity would not apply if an action were brought by a state or local government officer. Nor would the immunity apply if the volunteer's conduct constituted a crime of violence, a hate crime, a sexual offense, misconduct in violation of federal or state civil rights laws, or situations where the volunteer was under the influence of alcohol or drugs at the time of the misconduct. (See, 42 U.S.C. § 14503(d)(3), (f).) ARGUMENTS IN SUPPORT : In support of the bill, the California Lions Friends In Sight notes that their organization currently conducts approximately thirty vision screenings per year, helping approximately 8,000 patients. The organization also states that this bill "would provide general guidelines of conducting a vision screening and would enable licensed optometrist[s], ophthalmologist[s] and assisting trained volunteers to provide no-cost services to those who cannot afford eye care or eyeglasses." The Civil Justice Association of California (CJAC) states, "[t]he 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." It further points out that "federal law has recognized 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 (42 U.S.C.A. Section 14501 et seq.). Therefore, under federal law volunteers acting in the performance of services for a nonprofit organization or governmental entity are protected from lawsuits unless they acted willfully, recklessly or with gross negligence (42 U.S.C.A. Section 14502). This bill is consistent with federal law and furthers the important policy of encouraging the provision of charitable, much-needed social services without fearing costly lawsuits." In addition, the California Association of Nonprofits writes, "[SB 724] strikes the right balance between encouraging volunteerism and the involvement of charitable organizations by limiting liability for services performed within appropriate procedural protocol, and ensuring that people receiving free vision care are protected from instances of negligence or misconduct. We feel this is the right balance to allow SB 724 Page 8 nonprofits to serve our communities and to encourage community members to seek and receive these services. It is important to note that the Federal Volunteer Protection Act does grant 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. However, current law does not address the criteria used for vision screenings or the distribution of used or recycled eyeglasses. By specifying this criteria for immunity, it will help encourage licensed optometrists, ophthalmologists, and volunteers to offer their services at vision screenings, thereby increasing access to care for Californians in need." The State Board of Optometry supports the portion of the bill that provides qualified immunity from damages or injury liability, noting that SB 724 "would limit the liability of a nonprofit charitable organization and its participating eye care professionals or volunteers, for any damage or injury resulting from vision screenings and the donation of recycled glasses. This bill would assist in the regulation of this much needed service for underserved populations and encourage optometrists and ophthalmologists to volunteer more." However, the Board expresses concern with the language in the bill referring to the donation of eyeglasses without a prescription that are a "close or approximate match." The Board states that "[u]nderserved consumers, regardless of their circumstances, should receive eye wear that has their true prescription because the reality is that what may be considered a 'temporary' solution by the sponsor may be the only solution for many of these consumers." In light of such reservations, the author is working with the Board in discussions about this issue. RELATED LEGISLATION : AB 836 (Skinner): Among other things, this bill incentivizes retired dentists to provide free care for dentally underserved populations by effectively reducing the number of CE hours required for license renewal from 50 to 30. The sponsor of this bill, the California Dental Association (CDA), argues that access to dental care has been hampered by state budget cuts, requiring more people to rely on charity services. CDA hosts several of these free clinics, which rely on volunteer dentists. This bill would encourage active retired dentists to maintain their licensure in order to offer their SB 724 Page 9 services for free. Awaiting consideration in the Senate Appropriations Committee. REGISTERED SUPPORT / OPPOSITION : Support California Lions Friends In Sight (sponsor) California Association of Nonprofits Civil Justice Association of California Opposition None on file Analysis Prepared by : Drew Liebert and Alex Nowinski / JUD. / (916) 319-2334