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  








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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