BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 2160 A
Assembly Member Carter B
As Amended April 2, 2008
Hearing Date: June 24, 2008 2
Welfare & Institutions Code 1
GMO:jd 6
0
SUBJECT
Mello-Granlund Older Californians Act: Definition of
Disability
DESCRIPTION
The Mello-Granlund Older Californians Act (OCA) is the
state's implementing statute for the Older Americans Act of
1965 (Chapter 35 of Title 42 of the United States Code),
which provides a national network of state units on aging
and Area Agencies on Aging (AAAs) to deliver home and
community-based programs for older adults. Programs include
nutrition, transportation, information and assistance,
elder abuse prevention, and caregiver support. The OCA
does not define "disability" as it is used in many terms
relating to programs and services provided under the OCA,
although it defines "person with disability."
The bill would repeal the current definition of "person
with disability" and instead import definitions of "mental
disability" and "physical disability" from the Fair
Employment and Housing Act (Government Code Sec. 12926),
thereby expanding the reach and facilitating services
provided under the OCA to older adults with various
disabilities.
BACKGROUND
This bill is sponsored by the California Senior
Legislature.
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CHANGES TO EXISTING LAW
1. Existing law , the Mello-Granlund Older Americans Act,
is the state's implementing statute for the Older
Americans Act of 1965, as amended. It requires the
coordination of various agencies that deliver federal and
state programs and services to the senior population at
sites all over the state. This Act refers to various
services to persons with disabilities, but does not
include a definition of "disability." (Government Code
Sec. 9000 et seq. All references are to the Government
Code, unless otherwise indicated.)
Existing law defines the term "person with disability" to
be the same as defined by regulations established
pursuant to Section 504 of the federal Rehabilitation Act
of 1973, as amended in 1992 (29 U.S.C. Sec. 12101 et
seq.), and the federal Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12101 et seq.). (Sec. 9653.) This
definition is used in the context of senior wellness
programs. (Sec. 9650 et seq.)
Existing law , the federal Americans with Disabilities Act
(ADA), prohibits discrimination on the basis of
disability in employment, state and federal government,
public accommodations, commercial facilities,
transportation, and telecommunications. To be protected
under the ADA, one must have a disability or have a
relationship or association with an individual with a
disability. A person with disability is defined under
ADA as a person who has a physical or mental impairment
that substantially limits one or more major life
activities, a person who has a history or record of such
an impairment, or a person who is perceived by others as
having such an impairment. The ADA does not specifically
name all of the impairments that are covered.
This bill would repeal the definition of "person with
disability" located in the senior wellness programs (Sec.
9653) and add a definition of "disability" in the general
provisions of the Mello-Granlund Older Californians Act.
2. Existing law , the Fair Employment and Housing Act
(FEHA) protects classes of persons with certain
characteristics, such as sex, race, medical condition,
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disability, religion, sexual orientation, and national
origin from discrimination in employment and housing.
The FEHA defines various terms, including the terms
"mental disability" and "physical disability" in Sections
12926(i) and 12926(k).
Existing law , the FEHA, defines "mental disability" as
including, but is not limited to: (1) any mental or
psychological disorder or condition, such as mental
retardation, organic brain syndrome, emotional or mental
illness, or specific learning disabilities, that limits a
major life activity; (2) any other mental or
psychological disorder or condition not described in (1)
that requires special education or related services; (3)
having a record or history of a mental or psychological
disorder or condition described above, which is known to
the employer or other entity covered by the FEHA; (4)
being regarded or treated by the employer or other entity
covered by the FEHA as having, or having had, any mental
condition that makes achievement of a major life activity
difficult; or (5) being regarded or treated by the
employer or other entity covered by the FEHA as having,
or having had, a mental or psychological disorder or
condition that has no present disabling effect, but that
may become a mental disability as described above.
Existing law , the FEHA, defines "physical disability" to
include, but is not limited to: (1) having any
physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss that both limits a
major life activity and affects one or more of the
following body systems: neurological, immunological,
musculoskeletal, special sense organs, respiratory,
including speech organs, cardiovascular, reproductive,
digestive, genitourinary, hemic and lymphatic, skin, and
endocrine; (2) any other health impairment not described
in (1) that requires special education or related
services; (3) having a record or history of a disease or
disorder described in (1), which is known to the employer
or other entity covered by FEHA; (4) being regarded by an
employer or other entity as having, or having had, any
physical condition that makes achievement of a major life
activity difficult; and (5) being regarded by the
employer or other entity as having, or having had, a
disorder described in (1) that has no present disabling
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effect but may become a physical disability as described
in (1) or (2) above.
This bill would define "disability" to mean either one of
the following:
Mental disability, as defined in Sec. 12926(i),
which includes, but is not limited to, having a
mental or psychological disorder or condition that
limits a major life activity.
Physical disability, as defined in Sec.
12926(k), which includes, but is not limited to,
having a physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that
limits a major life activity.
COMMENT
1.Need for the bill
According to the author, current law merely references
the definition of disability as defined in the federal
Americans with Disabilities Act of 1990. "The California
statutes are far stronger, as defined in the Fair
Employment and Housing Act, which is Section 12926?The
sponsors aim to make it easier for programs and
administrators to access the working definition of
disability in order to more properly serve their senior
clients."
Further, the author states that this measure "will expand
the Mello-Granlund Older Californians Act to include the
definition of "disability" as defined in [FEHA] in order
to make it easier to enforce disability access laws at
the sites that provide services to the elderly via the
Mello-Granlund Older Californians Act."
However, according to the Senate Committee on Human
Services analysis of AB 2160, the state Department of
Aging recently wrote to the author expressing its belief
that the bill is not warranted, and that sufficient
protections for persons with disabilities are already in
current law. The department, the letter said, believes
that the problem is one of sites (where services are
delivered) not having sufficient accommodations to serve
their clients with disabilities. It also implies,
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according to the department, that enforcement of existing
state and federal laws on disabilities is insufficient.
2. Definitions imported into the Mello-Granlund OCA are
not complete, and would serve to limit protections
instead of expanding them
An earlier version of AB 2160 would have simply
cross-referenced the definitions of mental disability and
physical disability in Sec. 12926(i) and (k). By doing
so, the bill would have also imported subdivision (l),
which states:
Notwithstanding subdivisions (i) and (k), if the
definition of "disability" used in the Americans with
Disabilities Act of 1990 (Public Law 101-336) would
result in broader protection of the civil rights of
individuals with a mental disability or physical
disability, as defined in subdivision (i) or (k), or
would include any medical condition not included
within those definitions, then that broader protection
or coverage shall be deemed incorporated by reference
into, and shall prevail over conflicting provisions
of, the definitions in subdivisions (i) and (k).
Instead, this bill, while referencing subdivisions (i)
and (k) of Section 12926 (FEHA's definitions), also
imports some, but not all, of the language in those
provisions, creating some confusion as to whether the
entire definitions in Sec. 12926 are being made
applicable to the Mello-Granlund Older Californians Act.
Further, by doing so, subdivision (l), as quoted above,
may not be applicable, if the proposed statute is
literally read, as likely it will be.
Further, with respect to state-funded programs or
activities, Gov. Code Sec. 11135 prohibits discrimination
on the basis of race, national origin, ethnic group
identification, religion, age, sex (including gender
identity), sexual orientation, color, or disability,
including the perception that a person has any of those
characteristics or that the person is associated with a
person who has, or is perceived to have, any of those
characteristics. In defining "disability," Sec. 11135
provides that it means "any mental or physical
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disability, as defined in Section 12926." Many, if not
all, of the programs and services provided under the
Mello-Granlund OCA, receive state and federal funds to
pay for those programs and services.
The effect of the current version of AB 2160 is thus to
limit, not to expand the coverage of persons with
disabilities vis-?-vis Mello-Granlund OCA programs and
services.
3. Is the current definition of "person with a
disability" sufficient to address the perceived problem
of lack of services to seniors with disabilities?
All services funded by the Older Californians Act are
required to comply with the Americans with Disabilities
Act. Minimum standards for programs under the Older
Californians Act include a provision requiring equal
access to diverse populations. In addition, the Older
Californians Act already references the California Fair
Employment and Housing Act and includes provisions that
require equal access to programs and services provided
through both the Older Americans Act and the Older
Californians Act regardless of physical or mental
disabilities, language barriers, cultural or social
isolation, including that caused by actual or perceived
racial and ethnic status, including but not limited to,
ancestry, national origin, religion, sex, gender
identity, marital status, familial status, sexual
orientation, or, any other basis set forth in the FEHA.
Current law defines the term "person with disability" to
be the same "as defined by regulations established
pursuant to Section 504 of the federal Rehabilitation Act
of 1973, as amended in 1992 (29 U.S.C. Sec. 12101 et
seq.), and the federal Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12101 et seq.)." (Sec. 9653.) This
definition is used in the context of senior wellness
programs. (Sec. 9650 et seq.)
As stated above, the ADA defines a person with disability
as a person who has a physical or mental impairment that
substantially limits one or more major life activities, a
person who has a history or record of such an impairment,
or a person who is perceived by others as having such an
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impairment. This expansive definition is reflected in
the current definitions of "mental disability" and
"physical disability" in Sec. 12926 (i) and (k), as
extended by the "notwithstanding" language in Sec. 12926
(l), and is further reflected in the Sec. 11135 (f),
dealing with state-funded programs and services.
When taken altogether, these definitions would cover more
situations than would be covered by the definition of
"disability" in AB 2160. It would seem that the state
Department of Aging may be correct in stating the problem
to be the lack of enforcement of the state and federal
disability laws rather than the lack of an expansive
definition of "disability."
TO AVOID UNINTENDED CONSEQUENCES, SHOULD THE BILL DEFINE
"DISABILITY" BY A SIMPLE REFERENCE TO THE PERTINENT SEC.
12926 PROVISIONS?
4. Support arguments
The Gray Panthers, in support of AB 2160, state that the
Department of Aging and local agencies that serve elderly
populations do not have a definition of disability in the
laws they operate under. "In order to find what
"disability" means, they have to cross-reference into a
different code section, and as a result, many sites are
not accessible to the population they serve."
Protection and Advocacy, Inc. explains the problem in
current law thus:
Previously, the definition of disability incorporated
by reference by the act (where one appeared) was that
contained in the regulations promulgated pursuant to
the ADA and Section 504 of the Rehabilitation Act.
This bill would define "disability" for purposes of
the act in the same way it is defined for purposes of
the California Fair Employment and Housing Act. This
definition is broader than the ADA and Section 504 in
some regards; it makes sense to clarify that this Act
uses the definition contained in state law.
Were the author of AB 2160 to adopt the recommendation at
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the end of Comment 3 (to simply provide the code
cross-references), Protection and Advocacy's arguments in
support of the bill would hold.
Support: California Commission on Aging; TACC - Triple A
Council of California; Protection and Advocacy,
Inc.; County of San Joaquin Commission on Aging;
Congress of California Seniors; California State
Independent Living Council (SILC); Gray Panthers
Opposition: None Known
HISTORY
Source: California Senior Legislature (Sponsor)
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Aging & Long Term Care Committee
(Ayes 6, Noes 0)
Assembly Appropriations Committee (Ayes 17,
Noes 0)
Assembly Floor (Ayes 62, Noes 2)
Senate Human Services Committee (Ayes 4, Noes
0)
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