BILL ANALYSIS �
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
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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:
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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.)
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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
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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
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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
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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
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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
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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