BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1534|
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THIRD READING
Bill No: SB 1534
Author: Perata (D), et al
Amended: 5/30/00
Vote: 21
SENATE HEALTH & HUMAN SERV. COMMITTEE : 5-2, 4/26/00
AYES: Escutia, Figueroa, Hughes, Solis, Vasconcellos
NOES: Haynes, Mountjoy
NOT VOTING: Morrow, Polanco
SENATE APPROPRIATIONS COMMITTEE : 8-5, 5/25/00
AYES: Johnston, Alpert, Bowen, Burton, Escutia, Karnette,
Perata, Vasconcellos
NOES: Johnson, Kelley, Leslie, McPherson, Mountjoy
SUBJECT : Mental health: patient advocacy: special
programs
SOURCE : Author
DIGEST : This bill revises the scope of responsibilities
of county advocates for mental health patients and their
authority to refer complaints to government agencies. This
bill also revises the rights of advocates for access to
records and other information under certain circumstances.
ANALYSIS : Existing law:
1. Requires the State Department of Mental Health (DMH)
and each county mental health director to contract with
a nonprofit agency to provide certain mental health
CONTINUED
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patients' advocacy services.
2. Provides that persons, either involuntarily detained
for evaluation or treatment, or admitted as voluntary
patients for psychiatric evaluation or treatment to any
health facility that offers psychiatric evaluations or
treatment, as well as mentally retarded persons
committed to a state hospital, have certain rights
pertaining to their care.
3. Authorizes the court to impose a civil penalty on
mental health treatment facility and/or person, for a
variety of violations, including but not limited to:
discriminating or retaliating against certain persons
who are filing a complaint or providing information
regarding complaints by individuals in psychiatric
facilities, violating the rights of mental health
services recipients and obstructing a county patients'
rights advocate performance of his or her duties.
4. Requires that the county mental health director and,
in some cases, the director of the State Department of
Mental Health investigate cases of alleged or suspected
violations of patients' rights.
5. Makes mental health treatment facilities and persons
found to be in violation of certain requirements
pertaining to patients' rights liable for civil
penalties, as determined by a court, of $50 per day of
violation, with a limit of $1,000 and offset by other
fines.
6. Provides that fines for penalties be paid into the
county general fund and specified that the county
district attorney or the State Attorney General shall
enforce the fines in court.
7. Gives county patients' advocates the right to inspect
and copy any records or materials, relating to an
investigation on a client's behalf. Includes records
that are in the possession of a mental health program,
services , facilities, city, county or state agency, if
those records or materials are not subject to specified
confidentiality requirements.
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8. Prohibits any person from obstructing county mental
health advocates in the performance of their duties,
including obtaining access to clients or records, and
prohibits retaliation against a patient or employee who
initiates or participates in a complaint or
investigation of a complaint.
This bill:
1. Eliminates the reference to mentally retarded people
committed to a state development disabilities hospital
and adds persons with psychiatric disabilities
receiving residential care at a community care facility
to the list of those with the specific rights (e.g.,
own clothing, daily visitors, etc.).
2. Provides that the fines collected for violations of
mental health patients' rights or for discrimination
against a patient shall be paid into the county's
realignment mental health sub-account, instead of the
county general fund.
3. Authorizes a person or facility sanctioned or fined to
appeal the sanction or fine within 15 days of receiving
formal notice of the sanction.
4. Allows, where a county district attorney or the State
Attorney General have failed to enforce fines,
individuals whose rights were violated to file private
actions and collect the civil penalties and not be
required to prove actual damages.
5. Authorizes advocates to make the determination of when
there is probable cause that the rights of a mental
health service recipient have been violated for the
purpose of conducting an investigation.
6. Clarifies the duties of patient rights' advocates to
include: representing patients at administrative
hearings, certification review hearings and capacity
hearings; providing assistance to minors requesting a
clinical review or other hearing; and assisting
recipients of public mental health services with
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complaints or grievances.
7. Requires patient rights' advocates to maintain records
regarding the number of administrative hearings in
which the advocate provides representation, and
complaints alleged against licensed or unlicensed
health and community care facilities.
8. Grants patient rights' advocates access to any and all
records maintained by a mental health facility or
provider for investigative and monitoring purposes
without limitations of current law, and also grants
advocates the right of entry to all facilities,
programs or services for the purpose of hearing,
investigating and resolving complaints, rendering
advice or any other purpose related to the fulfillment
of their responsibilities. Requires that advocates
have written authorization by the client or client's
guardian in order to access confidential client
information.
9. Requires patients' rights advocates to keep
confidential records and files relating to a complaint
or investigation, unless disclosure is required by a
court order, or law enforcement, child or adult
protective services or a licensing or certification
agency, consistent with current state and federal law.
10. Authorizes advocates to refer complaints to any
government agency Requires agencies that respond to a
complaint referred by an advocate, to prepare a yearly
report to the Legislature on the number of patients'
rights complaints, the type, nature, source and
resolution of the complaint.
11. Prohibits retaliation against an advocate for the
performance of their duties and also prohibits
discrimination and retaliation against a resident of a
mental health facility who initiates or participates in
a complaint.
According to the Senate Health and Human Services Committee
analysis:
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In 1974, the California Legislature mandated the
establishment of state patients' rights. The purpose of
this office was to protect patients' rights in the mental
health process and improve the quality of care provided by
psychiatric hospitals. Administrative regulations adopted
in 1976 required county mental health departments and state
hospitals to provide patients' advocacy services including
education about patients' rights, investigating complaints
and advocating on behalf of patients whose rights were
violated.
Currently, counties are required to designate a county
mental health patients' rights advocacy office that is
responsible for offering the statutorily defined services.
The county department of mental health oversees these
advocates. Advocates must meet qualifications necessary to
fulfill the responsibilities established by state law but
specific qualifications are not statutorily defined.
Advocates are mandated to attend annual state trainings
sponsored by the State Office of Patients' Rights.
Recent public debate and a series of Los Angeles Times
articles have brought attention to California's mental
health system including its history, problems, system of
care, population served, interaction with safety net
programs and instances of abuse. One of the Los Angeles
Times articles specifically discussed instances of abuse
within the State's long-term care system. It found that
even though there has been limited oversight of the care
provided by long-term care institutions, the State
Department of Health Services has issued 200 citations and
fines against 35 of the 45 facilities certified to care for
mentally ill people since 1992. Citations were the result
of a wide range of circumstances including exposure to
water that was too hot, sexual abuse of patients and deaths
due to negligence. Low reimbursement rates and unqualified
staff were named as contributing to the abuse. This bill
seeks to improve the quality of California's mental health
care by increasing oversight of the system and scrutiny of
the care provided.
This bill revises the responsibilities of advocates,
expands advocate access to information related to the
fulfillment of their responsibilities, and institutes data
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collection and reporting requirements. This bill
authorizes advocates to refer complaints to other agencies
and requires that these complaints be granted priority by
specific state licensing authorities. According to the
author, the intent of the bill is to create more uniformity
in the delivery of patient advocacy services, facilitate
responses to concerns forwarded by advocates, increase
access to advocacy services and improve the quality of
California's mental health care system.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/30/00)
California Association of Mental Health Patients' Rights
Advocates
California Society for Clinical Social Work
Protection and Advocacy
Urban Counties Caucus
Mental Health Directors of California
OPPOSITION : (Verified 5/30/00)
California Association of Health Facilities (unless
amended)
California HealthCare Association
ARGUMENTS IN SUPPORT : Supporters of this bill argue it
is respectful of the rights and preferences of mental
health clients. They argue that this bill does not expand,
but clarifies current advocate access to information. The
Office of Patients' Rights (OPR) has decided that advocates
have access to a variety of records, including confidential
medical records, without consent of the patient or
conservator for purposes of monitoring mental health
facilities. According to OPR's interpretation of the law,
this bill's provisions are declaratory of existing law and
comport with current practice. Proponents argue that the
bill merely clarifies provisions pertaining to advocate
access to information and does not expand that access.
Proponents further argue that clarification about access to
records is necessary to avoid frequent confusion especially
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when patients have died, left the area, or are unconscious
or otherwise unable to consent to a release of confidential
information and advocates need access to records. They
argue that if this access were lost, the individuals most
vulnerable to abuse or neglect would be without such
services. Lastly, they argue there are protections in the
law against patients' rights advocates inappropriately
accessing or releasing confidential and sensitive patient
information and that this bill is modeled after similar
systems, including the State's Long-term Care Ombudsman
Program.
This bill revises current law to stipulate that the
responsibilities of patients' rights advocates include
representing clients at administrative hearings. The
author argues that these provisions are intended to
clarify, not expand advocates' current roles. Proponents
argue that under current law in 57 California counties,
advocates represent clients in administrative hearings.
Furthermore, they argue that current law does not provide
attorney representation at administrative hearings.
This bill states that advocates may conduct investigations
if they find probable cause that the rights of a mental
health service recipient have been violated. The bill also
grants advocates significant responsibility for the data
collection and reporting efforts regarding patients'
advocacy services. Proponents argue that the bill does not
grant advocates additional authority but clarifies who is
supposed to determine if there is probable cause of a
violation warranting an investigation. They argue that the
language added by this bill is simply a clean-up provision.
They argue that the need to make the determination of
"probable cause" is actually a limitation on the patients'
rights advocates' authority to initiate an investigation.
Proponents further argue that advocates have limited power
since the local department of mental health oversees them.
Supporters of this bill argue that it addresses problems
existent within the mental health service delivery system
by improving the current patients' advocacy system and
increasing access to advocacy services. They argue that
the bill will greatly improve mental health services in
California by expanding the ability of advocates to work on
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behalf of their clients. They believe the bill is
respectful of the rights and preferences of mental health
clients.
ARGUMENTS IN OPPOSITION : Opponents of this bill argue
that the measure does not sufficiently protect the rights
to privacy of patients and facilities. They argue that
this bill expands advocates' current access to records and
information. They believe this expansion violates the
rights of patients and facilities, and may result in
obstructions to the patients' treatment. Opponents further
argue that this bill conflicts with Welfare and
Institutions Code Section 5328, which protects the
confidentiality of involuntarily detained mental health
clients.
Opponents also argue that the revision of advocates'
responsibility to include representation of clients at
administrative hearings will worsen the quality of
representation for clients. They also believe that
advocates' representation of clients at administrative
hearings conflicts with Welfare and Institutions Code
Section 5521 which provides that advocacy services shall
not duplicate existing public defender or court-appointed
attorney representation.
Arguments are made by opponents of this bill that it grants
excessive power to patients' advocates. They assert that
the bill yields a system where advocates are the
investigator, judge and jury of complaints. Opponents
believe there is a need for an outside adjudicator of
complaints.
Opponents of this bill argue that the measure vests
additional responsibilities on patients' advocates without
the necessary definitions of their qualifications. Lastly,
opponents challenge this bill's increased penalties, argue
there is insufficient evidence of the need for these
increases, assert that some of these penalties are
duplicative of federal penalties, and further argue that
fines do not necessarily result in improved service
quality.
CP:kb 5/30/00 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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