BILL NUMBER: AB 435 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 22, 2010
AMENDED IN SENATE MAY 3, 2010
AMENDED IN SENATE JULY 23, 2009
AMENDED IN SENATE JUNE 25, 2009
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Committee on Accountability and Administrative Review
(De La Torre (Chair), Audra Strickland (Vice Chair), Arambula, Tom
Berryhill, Block, Buchanan, Caballero, Emmerson, Fletcher, Huber,
Jones, Bonnie Lowenthal, V. Manuel Perez, and Villines)
FEBRUARY 24, 2009
An act to amend Sections 4514, 4731, and 5328 of, to add
Section 4626.1 to, and to add Division 4.8 (commencing with
Section 4910) to, the Welfare and Institutions Code, relating to
developmental services.
LEGISLATIVE COUNSEL'S DIGEST
AB 435, as amended, Committee on Accountability and Administrative
Review. Regional centers: whistleblower protection: related-party
transactions.
Existing law, the Lanterman Developmental Disabilities Services
Act, requires the State Department of Developmental Services to
allocate funds to private nonprofit regional centers for the
provision of community services and support for persons with
developmental disabilities and their families. Existing law sets
forth the duties of regional centers, including, but not limited to,
development of individual program plans, the purchase of needed
services and supports to implement the plan, and the
monitoring of services.
Existing law authorizes the department to adopt and enforce
conflict-of-interest regulations to ensure that members of the
governing board, program policy committees, and employees of regional
centers make decisions that are in the best interest of consumers
and the families of consumers.
This bill would require a regional center to disclose on its
Internet Web site specified information regarding related person
transactions, as defined, on a quarterly basis, keep a log of that
information for a period of 3 years after termination of the regional
center contract, and provide that information to the public upon
request.
Existing law, the California Whistleblower Protection Act, sets
forth the circumstances and procedures under which a state employee,
as defined, may report improper governmental activities, as defined,
or make a protected disclosure, as defined, to the State Auditor, and
prohibits retaliation or reprisal against a state employee for these
acts.
This bill would enact the Regional Center Whistleblower Protection
Act, providing similar protections for regional center employees who
report improper regional center activities, as defined, or make a
protected disclosure, as defined, to the department or the
Legislature. It would require the department to investigate
complaints under these provisions, and would require remedial actions
to be taken by regional centers when appropriate. The bill would
establish a private cause of action to enforce these provisions. It
would require that if a copy of a complaint filed with the employee's
supervisor, manager, or regional center director is also filed with
the department, the copy shall include a sworn statement, signed
under penalty of perjury, that the facts are true, or believed to be
true. By changing the definition of a crime, the bill would create a
state-mandated local program. The bill would make certain acts of
reprisal a crime, thereby imposing a state-mandated local program.
Existing law requires that specified information and records
obtained in the course of intake, assessment, and the provision of
services for persons with developmental disabilities and the
provision of voluntary or involuntary services to persons with a
mental illnesses remain confidential, with certain specified
exceptions.
This bill would allow the release of the above information to the
department for purposes of conducting an investigation pursuant to
the bill.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4514 of the Welfare and Institutions Code is
amended to read:
4514. All information and records obtained in the course of
providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), Division 4.5 (commencing with Section
4500), Division 6 (commencing with Section 6000), or Division 7
(commencing with Section 7100) to persons with developmental
disabilities shall be confidential. Information and records obtained
in the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons,
whether employed by a regional center or state developmental center,
or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a developmental
disability, or his or her guardian or conservator, shall be obtained
before information or records may be disclosed by regional center or
state developmental center personnel to a professional not employed
by the regional center or state developmental center, or a program
not vendored by a regional center or state developmental center.
(b) When the person with a developmental disability, who has the
capacity to give informed consent, designates individuals to whom
information or records may be released, except that nothing in this
chapter shall be construed to compel a physician, psychologist,
social worker, marriage and family therapist, nurse, attorney, or
other professional to reveal information that has been given to him
or her in confidence by a family member of the person unless a valid
release has been executed by that family member.
(c) To the extent necessary for a claim, or for a claim or
application to be made on behalf of a person with a developmental
disability for aid, insurance, government benefit, or medical
assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor,
ward, or conservatee, and his or her parent, guardian, conservator,
or limited conservator with access to confidential records,
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this chapter shall be construed to
compel a physician, psychologist, social worker, marriage and family
therapist, nurse, attorney, or other professional to reveal
information that has been given to him or her in confidence by a
family member of the person unless a valid release has been executed
by that family member.
(e) For research, provided that the Director of Developmental
Services designates by regulation rules for the conduct of research
and requires the research to be first reviewed by the appropriate
institutional review board or boards. These rules shall include, but
need not be limited to, the requirement that all researchers shall
sign an oath of confidentiality as follows:
"" ____________________________
Date
As a condition of doing research concerning persons with
developmental disabilities who have received services from ____ (fill
in the facility, agency or person), I, ____, agree to obtain the
prior informed consent of persons who have received services to the
maximum degree possible as determined by the appropriate
institutional review board or boards for protection of human subjects
reviewing my research, or the person's parent, guardian, or
conservator, and I further agree not to divulge any information
obtained in the course of the research to unauthorized persons, and
not to publish or otherwise make public any information regarding
persons who have received services so those persons who received
services are identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
_________________________''
Signed
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) To the courts and designated parties as part of a regional
center report or assessment in compliance with a statutory or
regulatory requirement, including, but not limited to, Section 1827.5
of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code,
Section 6502 of the Welfare and Institutions Code, and Section 56557
of Title 17 of the California Code of Regulations.
(j) To the attorney for the person with a developmental disability
in any and all proceedings upon presentation of a release of
information signed by the person, except that when the person lacks
the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or
herself of the identity of the attorney, and of the fact that the
attorney represents the person, shall release all information and
records relating to the person except that nothing in this article
shall be construed to compel a physician, psychologist, social
worker, marriage and family therapist, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(k) Upon written consent by a person with a developmental
disability previously or presently receiving services from a regional
center or state developmental center, the director of the regional
center or state developmental center, or his or her designee, may
release any information, except information that has been given in
confidence by members of the family of the person with developmental
disabilities, requested by a probation officer charged with the
evaluation of the person after his or her conviction of a crime if
the regional center or state developmental center director or
designee determines that the information is relevant to the
evaluation. The consent shall only be operative until sentence is
passed on the crime of which the person was convicted. The
confidential information released pursuant to this subdivision shall
be transmitted to the court separately from the probation report and
shall not be placed in the probation report. The confidential
information shall remain confidential except for purposes of
sentencing. After sentencing, the confidential information shall be
sealed.
( l ) Between persons who are trained and qualified to
serve on "multidisciplinary personnel" teams pursuant to subdivision
(d) of Section 18951. The information and records sought to be
disclosed shall be relevant to the prevention, identification,
management, or treatment of an abused child and his or her parents
pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of
Division 9.
(m) When a person with a developmental disability dies from any
cause, natural or otherwise, while hospitalized in a state
developmental center, the State Department of Developmental Services,
the physician in charge of the client, or the professional in charge
of the facility or his or her designee, shall release information
and records to the coroner. The State Department of Developmental
Services, the physician in charge of the client, or the professional
in charge of the facility or his or her designee, shall not release
any notes, summaries, transcripts, tapes, or records of conversations
between the resident and health professional personnel of the
hospital relating to the personal life of the resident that is not
related to the diagnosis and treatment of the resident's physical
condition. Any information released to the coroner pursuant to this
section shall remain confidential and shall be sealed and shall not
be made part of the public record.
(n) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Services, and who are licensed or registered health professionals,
and to authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
health facilities and community care facilities, and to ensure that
the standards of care and services provided in these facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facility is subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 2
(commencing with Section 1250) and Chapter 3 (commencing with Section
1500) of Division 2 of the Health and Safety Code, or a criminal,
civil, or administrative proceeding in relation thereto. The
confidential information may be used by the State Department of
Health Services or the State Department of Social Services in a
criminal, civil, or administrative proceeding. The confidential
information shall be available only to the judge or hearing officer
and to the parties to the case. Names which are confidential shall be
listed in attachments separate to the general pleadings. The
confidential information shall be sealed after the conclusion of the
criminal, civil, or administrative hearings, and shall not
subsequently be released except in accordance with this subdivision.
If the confidential information does not result in a criminal, civil,
or administrative proceeding, it shall be sealed after the State
Department of Health Services or the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Health Services or the State Department of Social
Services shall not contain the name of the person with a
developmental disability.
(o) To any board which licenses and certifies professionals in the
fields of mental health and developmental disabilities pursuant to
state law, when the Director of Developmental Services has reasonable
cause to believe that there has occurred a violation of any
provision of law subject to the jurisdiction of a board and the
records are relevant to the violation. The information shall be
sealed after a decision is reached in the matter of the suspected
violation, and shall not subsequently be released except in
accordance with this subdivision. Confidential information in the
possession of the board shall not contain the name of the person with
a developmental disability.
(p) To governmental law enforcement agencies by the director of a
regional center or state developmental center, or his or her
designee, when (1) the person with a developmental disability has
been reported lost or missing or (2) there is probable cause to
believe that a person with a developmental disability has committed,
or has been the victim of, murder, manslaughter, mayhem, aggravated
mayhem, kidnapping, robbery, carjacking, assault with the intent to
commit a felony, arson, extortion, rape, forcible sodomy, forcible
oral copulation, assault or battery, or unlawful possession of a
weapon, as provided in Section 12020 of the Penal Code.
This subdivision shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
treatment unless relevant to the crime involved.
This subdivision shall not be construed as an exception to, or in
any other way affecting, the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or
Chapter 11 (commencing with Section 15600) and Chapter 13 (commencing
with Section 15750) of Part 3 of Division 9.
(q) To the Youth Authority and Adult Correctional Agency or any
component thereof, as necessary to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed
pursuant to either Section 11164 of the Penal Code or Section 15630
of the Welfare and Institutions Code for the purposes of either a
mandated or voluntary report or when those agencies request
information in the course of conducting their investigation.
(s) When a person with developmental disabilities, or the parent,
guardian, or conservator of a person with developmental disabilities
who lacks capacity to consent, fails to grant or deny a request by a
regional center or state developmental center to release information
or records relating to the person with developmental disabilities
within a reasonable period of time, the director of the regional or
developmental center, or his or her designee, may release information
or records on behalf of that person provided both of the following
conditions are met:
(1) Release of the information or records is deemed necessary to
protect the person's health, safety, or welfare.
(2) The person, or the person's parent, guardian, or conservator,
has been advised annually in writing of the policy of the regional
center or state developmental center for release of confidential
client information or records when the person with developmental
disabilities, or the person's parent, guardian, or conservator, fails
to respond to a request for release of the information or records
within a reasonable period of time. A statement of policy contained
in the client's individual program plan shall be deemed to comply
with the notice requirement of this paragraph.
(t) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents or copies thereof that are no longer in the possession
of the employee or the employee's legal representative because they
were from any source containing confidential information protected by
this section, and all copies of those records and documents, within
10 days of the date that the adverse action becomes final except for
the actual records and documents submitted to the administrative
tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents
that are no longer in the possession of the employee or the employee'
s legal representatives because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that have been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
(u) To the department, for the purpose of conducting an
investigation authorized by Division 4.8 (commencing with Section
4910).
SEC. 2. Section 4626.1 is added to the Welfare
and Institutions Code, to read:
4626.1. (a) For purposes of this section, the following terms
shall have the following meanings:
(1) "Financial interest" means that it is reasonably foreseeable
that a decision will have a material financial effect,
distinguishable from its effect on the public generally, on a
regional center executive director or a member of the board of
directors, or his or her family, including any of the following
situations:
(A) The issue involves a business entity in which the regional
center executive director or a member of the board of directors has a
direct or indirect investment worth two thousand dollars ($2,000) or
more.
(B) The issue involves real property in which the regional center
executive director or a member of the board of directors has a direct
or indirect interest worth two thousand dollars ($2,000) or more.
(C) The issue involves a source of income, except gifts or loans
by a commercial lending institution made in the regular course of
business on terms available to the public without regard to official
status, aggregating five hundred dollars ($500) or more in value
provided to, promised to, or received by, a regional center executive
director or a member of the board of directors within 12 months
prior to the time when the decision is made.
(D) The issues involves a business entity in which the regional
center executive director or a member of the board of directors is a
director, officer, partner, trustee, employee, or holds a position of
management.
For purposes of this paragraph, "indirect investment or interest"
means an investment or interest owned by the spouse or dependent
child of a regional center executive director or a member of the
board of directors, by an agent on behalf of a regional center
executive director or a member of the board of directors, or by a
business entity or trust in which the regional center executive
director or a member of the board of directors, his or her agents,
spouse, and dependent children own, directly, indirectly, or
beneficially, a 10-percent or greater interest.
(2) "Related person" means a person who was in any of the
following categories at a time during the specified period for which
disclosure is required pursuant to subdivision (b):
(A) A director or officer of the regional center.
(B) A nominee for director.
(C) A family member of a director or officer of the regional
center or any nominee for director, which means a child, stepchild,
parent, stepparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the
director, officer, or director nominee.
(D) A person, other than a tenant or employee, sharing the
household of the director, officer, or director nominee.
(3) "Related-person transaction" means a transaction in which the
regional center was or is to be a participant and in which a related
person had or will have a direct or indirect financial interest.
(4) "Transaction" includes, but is not limited to, a financial
transaction, arrangement or relationship, including an indebtedness
or guarantee of indebtedness, or a series of similar transactions,
arrangements, or relationships.
(b) Within 30 days following the last day of each of its fiscal
quarters, a regional center shall disclose on its Internet Web site
the following information, regarding each related-person transaction
that occurred during that quarter:
(1) The name of the related person and the basis on which the
person is a related person.
(2) The related person's interest in the transaction with the
regional center, including the related person's position or
relationship with, or ownership in, a firm, corporation, or other
entity that is a party to, or has an interest in, the transaction.
(3) The approximate dollar value of the amount involved in the
transaction.
(4) The approximate dollar value of the related person's interest
in the transaction, which shall be computed without regard to the
amount of profit or loss.
(5) In the case of indebtedness, disclosure of the amount involved
in the transaction shall include the largest aggregate amount of
principal outstanding during the period for which disclosure is
provided, the amount outstanding as of the latest practicable date,
the amount of principal paid during the quarter, the amount of
interest paid during the quarter, and the rate or amount of interest
payable on the indebtedness.
(6) Any other information regarding the transaction or the related
person in the context of the transaction that is material to the
public in light of the circumstances of the particular transaction.
(c) The department shall post a link to each regional center's
disclosure information pursuant to subdivision (b) on the department'
s Internet Web Site.
(d) The information set forth in subdivision (b) shall remain on
the regional center's Internet Web site for a 12-month period. The
regional center shall keep a log of the quarterly disclosures
required pursuant to subdivision (b) for a period of three years
after the regional center contract has terminated and shall make the
information available upon request to a member of the public.
(e) Regional centers shall implement this section through existing
resources.
SEC. 3. SEC. 2. Section 4731 of the
Welfare and Institutions Code is amended to read:
4731. (a) Each consumer or any representative acting on behalf of
any consumer or consumers, who believes that any right to which a
consumer is entitled has been abused, punitively withheld, or
improperly or unreasonably denied by a regional center, developmental
center, or service provider, may pursue a complaint as provided in
this section.
(b) Initial referral of any complaint taken pursuant to this
section shall be to the director of the regional center from which
the consumer receives case management services. If the consumer
resides in a state developmental center, the complaint shall be made
to the director of that state developmental center. The director
shall, within 20 working days of receiving a complaint, investigate
the complaint and send a written proposed resolution to the
complainant and, if applicable, to the service provider. The written
proposed resolution shall include a telephone number and mailing
address for referring the proposed resolution in accordance with
subdivision (c).
(c) If the complainant is not satisfied with the proposed
resolution, the complainant may refer the complaint, in writing, to
the Director of Developmental Services within 15 working days of
receipt of the proposed resolution. The director shall, within 45
days of receiving a complaint, issue a written administrative
decision and send a copy of the decision to the complainant, the
director of the regional center or state developmental center, and
the service provider, if applicable. If there is no referral to the
department, the proposed resolution shall become effective on the
20th working day following
receipt by the complainant.
(d) The department shall annually compile the number of complaints
filed, by each regional center and state developmental center
catchment area, the subject matter of each complaint, and a summary
of each decision. Copies shall be made available to any person upon
request.
(e) This section shall not be used to resolve disputes concerning
the nature, scope, or amount of services and supports that should be
included in an individual program plan, for which there is an appeal
procedure established in this division, or disputes regarding rates
or audit appeals for which there is an appeal procedure established
in regulations. Those disputes shall be resolved through the appeals
procedure established by this division or in regulations.
(f) All consumers or, where appropriate, their parents, legal
guardian, conservator, or authorized representative, shall be
notified in writing in a language which they comprehend, of the right
to file a complaint pursuant to this section when they apply for
services from a regional center or are admitted to a developmental
center, and at each regularly scheduled planning meeting.
(g) No individual employed by, holding office in, or serving as a
governing board member of, a regional center shall be subject to
reprisal or harassment for, or directly or indirectly be threatened
with any action that would prevent him or her from, assisting a
consumer or consumer representative from pursuing a complaint under
this section.
SEC. 4. SEC. 3. Division 4.8
(commencing with Section 4910) is added to the Welfare and
Institutions Code, to read:
DIVISION 4.8. REGIONAL CENTER WHISTLEBLOWER PROTECTION ACT
4910. This division shall be known, and may be cited, as the
"Regional Center Whistleblower Protection Act."
4911. For purposes of this division:
(a) "Illegal order" means a directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or an
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
(b) (1) "Improper regional center activity" means an activity by a
regional center or by an employee, officer, or board member of a
regional center that is undertaken in the performance of his or her
official duties, whether or not that action is within the scope of
his or her employment, and that (A) is in violation of a state or
federal law or regulation, including, but not limited to, corruption,
malfeasance, bribery, theft of government property, fraudulent
claims, fraud, coercion, conversion, malicious prosecution, misuse of
government property, or willful omission to perform duty, or (B)
involves gross misconduct or incompetency. "Improper regional center
activity" also includes an intentional failure of an employee,
officer, or board member of a regional center to comply with any
provision of this division.
(2) Notwithstanding paragraph (1), "improper regional center
activity" does not include a decision or action by a regional center
that is subject to the fair hearing procedure specified in Article 3
(commencing with Section 4710) of Chapter 7 of Division 4.5 related
to the nature, scope, or amount of services included in an individual
consumer's individual program plan.
(c) "Person" means an individual, corporation, partnership,
limited liability company, trust, association, state or local
government, or an agency or instrumentality of any of the foregoing.
(d) "Protected disclosure" means a good faith communication that
discloses or demonstrates an intention to disclose to the department
or the Legislature information that may evidence either of the
following:
(1) An improper regional center activity.
(2) A condition that may significantly threaten the health or
safety of employees or the public if the disclosure or intention to
disclose was made for the purpose of remedying that condition.
4912. (a) An employee, officer, or board member of a regional
center shall not directly or indirectly use or attempt to use his or
her official authority or influence for the purpose of intimidating,
threatening, coercing, commanding, or attempting to intimidate,
threaten, coerce, or command any person for the purpose of
interfering with the rights conferred pursuant to this division.
(b) For the purpose of subdivision (a), "use the official
authority or influence" shall include any of the following:
(1) Promising to confer, or conferring, a benefit.
(2) Effecting, or threatening to effect, a reprisal.
(3) Taking, or directing others to take, or recommending,
processing, or approving, a personnel action, including, but not
limited to, appointment, promotion, transfer, assignment, performance
evaluation, suspension, or other disciplinary action.
(c) An employee, officer, or board member of a regional center who
violates subdivision (a) may be liable in an action for civil
damages brought against him or her by the offended party.
(d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
(e) Nothing in this division shall be construed to prohibit any
type of financial transaction by an employee, an officer, or a board
member of a regional center.
4913. (a) Except as expressly set forth in this division, the
department shall administer this division and shall investigate and
report, as set forth in this section, regarding improper regional
center activities.
(b) Upon receiving specific information that an improper regional
center activity has occurred, the department shall investigate and
may, if necessary, conduct a full investigative audit of the matter.
The identity of the person providing the information that initiated
the investigation shall not be disclosed without the written
permission of the person providing the information unless the
disclosure is to a law enforcement agency that is conducting a
criminal investigation.
(c) If the department determines that there is reasonable cause to
believe that an improper regional center activity has occurred, the
department shall report the nature and details of the activity to the
regional center director.
(d) If, after investigating, the department finds that an improper
regional center activity has occurred, the department shall send a
copy of the investigative report to the regional center. Within 30
days after receiving a copy of the department's investigative report,
the regional center shall either serve a notice of personnel action
upon the employee or employees who are the subject of the
investigative report or set forth in writing its reasons for not
taking personnel action. The regional center shall submit a copy of
the notice of personnel action to the department. If the focus of the
investigative report is a policy or procedure, instead of an
employee, the regional center shall, within 30 days after receiving a
copy of the department's investigative report, submit a plan of
corrective action to the department.
(e) The department shall report the outcome of the investigation
to the policy committees of the Senate and Assembly having
jurisdiction over regional centers, to the Assembly Committee on
Accountability and Administrative Review, and to any other committee
or authority that the department determines appropriate. If the
department reasonably believes that the investigative report may
involve criminal actions, the department shall also report this
information to the Attorney General.
4914. The department may request the assistance of a state
department, agency, or employee in conducting an investigative audit
required by this division. No information obtained from the
department, agency, or employee as a result of the department's
request for assistance, nor any information obtained thereafter as a
result of further investigation, shall be divulged or made known to a
person without the prior approval of the department.
4915. (a) In a case in which the department submits a report of
alleged improper regional center activity to the regional center
director, the regional center director shall report to the department
with respect to the action taken by the individual regarding the
activity, the first report being transmitted within 30 days after the
date of the department's report and monthly thereafter until final
action has been taken.
(b) Every investigation shall be kept confidential, except that,
notwithstanding Sections 4514 and 5328, the department shall issue a
report of an investigation that has been substantiated, keeping
confidential the identity of the individual or individuals who
provided information that initiated the investigation and maintaining
the confidentiality of the consumer or consumers of regional center
services that may have been involved. The department shall only
release findings resulting from an investigation conducted pursuant
to this division that are deemed necessary to serve the interests of
the state.
(c) Notwithstanding any other law, including, but not limited to,
Section 4914, this division shall not limit the authority conferred
upon the Attorney General or any state or local entity to investigate
any matter.
4916. (a) An employee who files a written complaint with his or
her supervisor, manager, or the regional center alleging actual or
attempted acts of reprisal, retaliation, threats, coercion, or
similar improper acts prohibited by this division, may also file a
copy of the written complaint with the department. A copy of the
complaint filed with the department shall also include a sworn
statement that the contents of the written complaint are true, or are
believed by the affiant to be true, signed under penalty of perjury.
The complaint filed with the department shall be filed within 12
months of the most recent act of reprisal complained of.
(b) A person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a regional
center employee for having made a protected disclosure, is subject to
a fine not to exceed ten thousand dollars ($10,000) and imprisonment
in the county jail for a period not to exceed one year.
(c) In addition to all other penalties provided by law, a person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a regional center employee for
having made a protected disclosure shall be liable in an action for
damages brought against him or her by the injured party. Punitive
damages may be awarded by the court where the acts of the offending
party are proven to be malicious. However, an action for damages
shall not be available to the injured party unless the injured party
has first filed a complaint with the department pursuant to
subdivision (a), and the department has issued, or failed to issue,
findings. Where liability has been established, the injured party
shall also be entitled to reasonable attorney's fees as provided by
law.
(d) This section is not intended to prevent a regional center,
manager, or supervisor from taking, directing others to take,
recommending, or approving a personnel action or from taking or
failing to take a personnel action with respect to an employee if the
regional center, manager, or supervisor reasonably believes the
action or inaction is justified on the basis of evidence separate and
apart from the fact that the person has made a protected disclosure.
(e) In a civil action or administrative proceeding, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this division was a contributing factor in the alleged
retaliation against a former or current employee, the burden of proof
shall be on the supervisor, manager, or regional center to
demonstrate by clear and convincing evidence that the alleged action
would have occurred for legitimate, independent reasons even if the
employee had not engaged in protected disclosures or refused an
illegal order. If the supervisor, manager, or regional center fails
to meet this burden of proof in a personnel action against the
employee in an administrative review, challenge, or adjudication in
which retaliation has been demonstrated to be a contributing factor,
the employee shall have a complete affirmative defense in the
personnel action.
(f) Nothing in this division shall be deemed to diminish the
rights, privileges, or remedies of an employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
4917. By April 1, 2011, the department shall prepare for
employees a written explanation of this division. The explanation
shall include, but need not be limited to, all of the following
information:
(a) Instructions on how to contact the department by mail,
telephone, e-mail, and fax.
(b) A general overview of improper regional center activities and
examples of three of the most common types of improper regional
center activities that may be reported to the department.
(c) An explanation of whistleblower protection available to
employees who report an improper regional center activity to the
department.
(d) The requirement that the department protect the anonymity of a
person who reports an improper regional center activity to the
department.
(e) The department's authority in connection with violations of
law discovered during an investigation of an improper regional center
activity.
(f) A description of the penalties imposed under Section 4916.
4918. (a) The department shall prepare for distribution to each
regional center in an electronic format a notice containing the
information in the written explanation prepared pursuant to Section
4917.
(b) By July 1, 2011, each regional center shall print and post the
notice distributed pursuant to subdivision (a) at its office or
offices in a location or locations where employee notices are
maintained. A regional center shall not edit the written text of the
notice, but may include its own introductory language in the notice,
if the language and the format selected do not alter the meaning of
the notice.
(c) In addition to the posted notice, on July 1, 2011, and
annually thereafter, every regional center shall send the information
contained in the notice by e-mail to its employees who have
authorized access to e-mail from the regional center.
(d) The department shall post the information described in Section
4917 on its Internet Web site.
4919. (a) Nothing in this division shall limit or otherwise
modify the right of a regional center employee to pursue any other
civil remedy.
(b) Nothing in this division shall be construed to afford civil
service employment rights on a regional center employee.
(c) Nothing in this division shall affect or impede a consumer's
rights under the Lanterman Developmental Disabilities Services Act
(Division 4.5 (commencing with Section 4500)).
SEC. 5. SEC. 4. Section 5328 of the
Welfare and Institutions Code is amended to read:
5328. All information and records obtained in the course of
providing services under Division 4 (commencing with Section 4000),
Division 4.1 (commencing with Section 4400), Division 4.5 (commencing
with Section 4500), Division 5 (commencing with Section 5000),
Division 6 (commencing with Section 6000), or Division 7 (commencing
with Section 7100), to either voluntary or involuntary recipients of
services shall be confidential. Information and records obtained in
the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons in
the provision of services or appropriate referrals, or in the course
of conservatorship proceedings. The consent of the patient, or his or
her guardian or conservator shall be obtained before information or
records may be disclosed by a professional person employed by a
facility to a professional person not employed by the facility who
does not have the medical or psychological responsibility for the
patient's care.
(b) When the patient, with the approval of the physician, licensed
psychologist, social worker with a master's degree in social work,
or licensed marriage and family therapist, who is in charge of the
patient, designates persons to whom information or records may be
released, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family. Nothing in this subdivision shall be
construed to authorize a licensed marriage and family therapist to
provide services or to be in charge of a patient's care beyond his or
her lawful scope of practice.
(c) To the extent necessary for a recipient to make a claim, or
for a claim to be made on behalf of a recipient for aid, insurance,
or medical assistance to which he or she may be entitled.
(d) If the recipient of services is a minor, ward, or conservatee,
and his or her parent, guardian, guardian ad litem, or conservator
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(e) For research, provided that the Director of Mental Health or
the Director of Developmental Services designates by regulation,
rules for the conduct of research and requires the research to be
first reviewed by the appropriate institutional review board or
boards. The rules shall include, but need not be limited to, the
requirement that all researchers shall sign an oath of
confidentiality as follows:
"" ____________________________
Date
As a condition of doing research concerning persons who have
received services from ____ (fill in the facility, agency or person),
I, ____, agree to obtain the prior informed consent of such persons
who have received services to the maximum degree possible as
determined by the appropriate institutional review board or boards
for protection of human subjects reviewing my research, and I further
agree not to divulge any information obtained in the course of such
research to unauthorized persons, and not to publish or otherwise
make public any information regarding persons who have received
services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
_________________________''
Signed
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) If the recipient of services who applies for life or
disability insurance designates in writing the insurer to which
records or information may be disclosed.
(j) To the attorney for the patient in any and all proceedings
upon presentation of a release of information signed by the patient,
except that when the patient is unable to sign the release, the staff
of the facility, upon satisfying itself of the identity of the
attorney, and of the fact that the attorney does represent the
interests of the patient, may release all information and records
relating to the patient except that nothing in this article shall be
construed to compel a physician, licensed psychologist, social worker
with a master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(k) Upon written agreement by a person previously confined in or
otherwise treated by a facility, the professional person in charge of
the facility or his or her designee may release any information,
except information that has been given in confidence by members of
the person's family, requested by a probation officer charged with
the evaluation of the person after his or her conviction of a crime
if the professional person in charge of the facility determines that
the information is relevant to the evaluation. The agreement shall
only be operative until sentence is passed on the crime of which the
person was convicted. The confidential information released pursuant
to this subdivision shall be transmitted to the court separately from
the probation report and shall not be placed in the probation
report. The confidential information shall remain confidential except
for purposes of sentencing. After sentencing, the confidential
information shall be sealed.
(l) Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) To county patients' rights advocates who have been given
knowing voluntary authorization by a client or a guardian ad litem.
The client or guardian ad litem, whoever entered into the agreement,
may revoke the authorization at any time, either in writing or by
oral declaration to an approved advocate.
(n) To a committee established in compliance with Section 4070.
(o) In providing information as described in Section 7325.5.
Nothing in this subdivision shall permit the release of any
information other than that described in Section 7325.5.
(p) To the county mental health director or the director's
designee, or to a law enforcement officer, or to the person
designated by a law enforcement agency, pursuant to Sections 5152.1
and 5250.1.
(q) If the patient gives his or her consent, information
specifically pertaining to the existence of genetically handicapping
conditions, as defined in Section 125135 of the Health and Safety
Code, may be released to qualified professional persons for purposes
of genetic counseling for blood relatives upon request of the blood
relative. For purposes of this subdivision, "qualified professional
persons" means those persons with the qualifications necessary to
carry out the genetic counseling duties under this subdivision as
determined by the genetic disease unit established in the State
Department of Health Services under Section 125000 of the Health and
Safety Code. If the patient does not respond or cannot respond to a
request for permission to release information pursuant to this
subdivision after reasonable attempts have been made over a two-week
period to get a response, the information may be released upon
request of the blood relative.
(r) When the patient, in the opinion of his or her
psychotherapist, presents a serious danger of violence to a
reasonably foreseeable victim or victims, then any of the information
or records specified in this section may be released to that person
or persons and to law enforcement agencies as the psychotherapist
determines is needed for the protection of that person or persons.
For purposes of this subdivision, "psychotherapist" means anyone so
defined within Section 1010 of the Evidence Code.
(s) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
(t) (1) To a law enforcement officer who personally lodges with a
facility, as defined in paragraph (2), a warrant of arrest or an
abstract of such a warrant showing that the person sought is wanted
for a serious felony, as defined in Section 1192.7 of the Penal Code,
or a violent felony, as defined in Section 667.5 of the Penal Code.
The information sought and released shall be limited to whether or
not the person named in the arrest warrant is presently confined in
the facility. This paragraph shall be implemented with minimum
disruption to health facility operations and patients, in accordance
with Section 5212. If the law enforcement officer is informed that
the person named in the warrant is confined in the facility, the
officer may not enter the facility to arrest the person without
obtaining a valid search warrant or the permission of staff of the
facility.
(2) For purposes of paragraph (1), a facility means all of the
following:
(A) A state hospital, as defined in Section 4001.
(B) A general acute care hospital, as defined in subdivision (a)
of Section 1250 of the Health and Safety Code, solely with regard to
information pertaining to a mentally disordered person subject to
this section.
(C) An acute psychiatric hospital, as defined in subdivision (b)
of Section 1250 of the Health and Safety Code.
(D) A psychiatric health facility, as described in Section 1250.2
of the Health and Safety Code.
(E) A mental
health rehabilitation center, as described in Section 5675.
(F) A skilled nursing facility with a special treatment program
for chronically mentally disordered patients, as described in
Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the
California Code of Regulations.
(u) Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to Section 15610.55,
15753.5, or 15761. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused elder or dependent adult pursuant to Chapter
13 (commencing with Section 15750) of Part 3 of Division 9.
(v) The amendment of subdivision (d) enacted at the 1970 Regular
Session of the Legislature does not constitute a change in, but is
declaratory of, the preexisting law.
(w) This section shall not be limited by Section 5150.05 or 5332.
(x) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents from any source containing confidential information
protected by this section, and all copies of those records and
documents, within 10 days of the date that the adverse action becomes
final except for the actual records and documents or copies thereof
that are no longer in the possession of the employee or the employee'
s legal representative because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents or
copies thereof that are no longer in the possession of the employee
or the employee's legal representatives because they were submitted
to the administrative tribunal as a component of an appeal from the
adverse action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that has been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
(y) To the State Department of Developmental Services for the
purpose of conducting an investigation authorized pursuant to
Division 4.8 (commencing with Section 4910).
SEC. 6. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.