BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 435
A
AUTHOR: Comm. on Accountability and Administrative
Review B
VERSION: June 22, 2010
HEARING DATE: June 30, 2010
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FISCAL: Appropriations
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CONSULTANT:
Park
SUBJECT
Regional centers: whistleblower protection
SUMMARY
Establishes whistleblower protections for reporting
improper regional center activities.
ABSTRACT
Existing law:
1.Establishes the Lanterman Developmental Disabilities
Services Act (Lanterman Act), under which the Department
of Developmental Services (DDS) contracts with 21 private
non-profit regional centers to provide case management
services and arrange for, or purchase, services that meet
the needs of individuals with developmental disabilities,
as defined.
2.Under the California Whistleblower Protection Act (WPA),
establishes circumstances and procedures under which
persons, as defined, may report confidentially improper
governmental activities, as defined, to the State
Auditor. Prohibits state employees from using,
Continued---
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attempting to use, directly or indirectly, official
authority for the purpose of intimidating, threatening,
coercing, commanding, or attempting to do any of the
preceding to interfere with the rights of the WPA.
Provides for fines, imprisonment, and civil liability for
specified violations, such as retaliation or reprisal
against a state employee or applicant for making
protected disclosures, as defined, to the State Auditor.
Requires the State Auditor and appointing power of state
employees to take specified actions according to a
specified timeline, but not in all instances of
allegations. Provides that the State Auditor has no
enforcement power [pertaining to its investigations].
3.Prohibits employers, both public and private, from
preventing employees from disclosing information, or
retaliating against employees for disclosing information,
to a government or law enforcement agency where the
employee has reasonable cause to believe that the
information discloses a violation of state or federal
statute, or a violation of or noncompliance with a state
or federal rule or regulation. Requires the Attorney
General (AG) to maintain a whistleblower hotline to
receive calls regarding such violations, and requires the
AG to refer calls to the appropriate government agency
for review and possible investigation. Requires the AG
and appropriate government agency to hold in confidence,
during the initial review of the call, information
disclosed through the whistleblower hotline, including
the identity of the caller and the employer identified by
the caller. Establishes fines and criminal penalties for
violations of these provisions, and burden of proof
pertaining to civil actions and administrative
proceedings related to such violations.
4.Provides in the Lanterman Act and the
Lanterman-Petris-Short (LPS) Act that, except for
specifically delineated exceptions, all information and
records obtained in the course of providing services to
people with developmental disabilities or recipients of
voluntary or involuntary mental health services shall be
confidential.
This bill:
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1.Establishes the Regional Center Whistleblower Protection
Act (RCWPA), which prohibits regional center employees,
officers, and board members, from directly or indirectly
using or attempting to use their official authority or
influence to intimidate, threaten, coerce, command, or
attempt to do any of the preceding to any person, as
defined, for the purpose of interfering with the rights
conferred by the Act.
2.Defines terms for purposes of the RCWPA, including the
following:
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 their lien of
duty that would unreasonably threaten the health or
safety of employees or the public.
b. "Improper regional center activity" means an action
by a regional center or its employee, officer, or
board member undertaken in performance of his or her
official duties, whether or not within the scope of
his or her employment, and that: violates a state or
federal law or regulation; or involves gross
misconduct or incompetency. Also includes an
intentional failure by any of the above to comply with
provisions of this Act. Excludes decisions or actions
by regional centers that are subject to the fair
hearing procedure established in law, related to the
nature, scope or amount of services in an individual
program plan.
c. "Protected disclosure" means a good faith
communication that discloses or is intended to
disclose to DDS or the Legislature information that
may evidence an improper regional center activity, or
a condition that may significantly threaten the health
or safety of employees or the public if the disclosure
or intent to disclose was made in order to remedy the
condition.
d. "use the official authority or influence" includes
promising to confer, or conferring a benefit;
effecting, or threatening to effect, a reprisal;
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taking, or directing others to take, or recommend,
process, or approve, a personnel action, including but
not limited to appointment, promotion, transfer,
assignment, performance evaluation, suspension, or
other disciplinary action.
3.Provides that officers, employees, and board members may
be liable for civil damages for interfering with the
rights conferred by this Act.
4.Requires DDS to administer the provisions of the RCWPA,
and to investigate and report on improper regional center
activities, as defined. Requires DDS, upon receiving
specific information that an improper regional center
activity has occurred, to investigate, and if necessary,
conduct a full investigative audit of the matter.
5.Prohibits DDS from disclosing the identity of the person,
as defined, providing information resulting in an
investigation without written consent unless disclosure
is to a law enforcement agency conducting a criminal
investigation.
6.Requires DDS, if it determines that there is reasonable
cause to believe that improper regional center activity
has occurred, to report the nature and details of the
activity to the regional center director, and, if it
determines that improper regional center activity has
occurred, to send a copy of its investigative report to
the regional center.
7.Requires the regional center, within 30 days of receiving
a copy of the investigative report, to either serve a
notice of personnel action on the offending employee or
employees, or to set forth in writing its reasons for not
taking personnel action. Requires the regional center to
submit a copy of the notice of personnel action to DDS.
8.Requires the regional center, within 30 days of receiving
the report, to submit a corrective action plan to DDS, if
the DDS investigative report identifies a policy or
procedure, rather than an individual employee, as being
responsible for improper regional center activities.
9.Requires DDS to report the results of an investigation to
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the policy committees of the Senate and Assembly having
jurisdiction over regional centers, to the Assembly
Committee on Accountability and Administrative Review,
and, as DDS determines to be appropriate, to any other
committee or authority.
10.Requires DDS to report the results of an investigation
to the Attorney General if DDS reasonably believes the
investigative report may involve criminal actions.
11.Authorizes DDS to request assistance from a state
agency, department, or employee in conducting an
investigative audit required by the RCWPA and limits
disclosure of any information received as a result of
such a request.
12.Requires the director of a regional center receiving a
report of alleged improper regional center activity to
report to DDS--within 30 days of the DDS report and
monthly thereafter until final action has been
taken--with respect to any action taken by the individual
regarding the activity.
13.Requires that investigations be kept confidential,
except that DDS must issue a report of a substantiated
investigation, keeping confidential the identity of the
individual or individuals providing information and the
identity of any consumers who may have been involved are
required to be kept confidential.
14.Provides that information provided to DDS, or by DDS,
pursuant to the RCWPA is exempt from the confidentiality
requirements of sections 4514 (Lanterman Developmental
Disabilities Services Act) and 5328 (Lanterman Petris
Short Act) of the Welfare and Institutions code.
15.Provides that the findings resulting from an
investigation shall only be released when deemed
necessary to serve the interests of the state.
16.Provides that the RCWPA does not limit the investigative
authority of the Attorney General or any government
agency or department, and does not prevent a RC from
taking personnel action based on evidence separate and
apart from the fact that the person has made a protected
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disclosure.
17.Authorizes a regional center employee who files a
written complaint with his or her supervisor, manager or
regional center alleging actual or attempted reprisal,
retaliation, threats, coercion, or similar actions
prohibited by the RCWPA, to file with DDS, within 12
months of the most recent reprisal complained about, a
copy of the written complaint along with a statement,
signed under penalty of perjury, that the contents of the
complaint are true or believed to be true.
18.Establishes penalties for intentional acts of reprisal,
retaliation, threats, coercion or similar acts against a
regional center employee in the form of a fine not to
exceed $10,000, and imprisonment in county jail for up to
one year.
19.Establishes, in addition to all other penalties provided
by law, civil liability for intentional acts of reprisal,
retaliation, threats, coercion, or similar acts against
regional center employees for having made a protected
disclosure, and authorizes recovery of punitive damages
for malicious conduct, and for reasonable attorney's
fees. Conditions an action for damages on the prior
filing of a complaint with DDS and DDS's issuance, or
failure to issue, findings.
20.Establishes the burden of proof in civil actions or
administrative proceedings concerning retaliation claims
under the RCWPA, as specified.
21.Requires DDS, by April 1, 2011, to prepare for [regional
center] employees a written explanation of the
retaliation protections of this bill, as specified,
including examples of the three most common types of
improper regional center activities that may be reported
to DDS. Requires DDS to distribute a notice containing
the information to each RC in electronic format. Requires
DDS to post the information on its Web site.
22.Requires each regional center, by July 1, 2011, to print
and post the notice at its offices; and requires the
regional center, annually, to send the information in the
notice by electronic mail to its employees, beginning
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July 1, 2011.
23.Provides that nothing in the Act shall limit or
otherwise modify the right of a regional center employee
to pursue any other civil remedy; or be construed to
confer civil service rights on a regional employee; or
affect or impede a consumer's rights under the Lanterman
Act.
24.Allows information and records related to persons with
developmental disabilities to be disclosed to DDS for the
purpose of conducing their investigations above.
25.Provides that employees, officer holders, board members
of regional centers shall not be subject to reprisal or
harassment, or threatened with any action that would
prevent him or her from assisting a consumer or consumer
representative from pursuing a complaint.
FISCAL IMPACT
According to the Assembly Appropriations Committee of a
measure that included, among others, the requirements of
the bill: one-time costs of $2 million (66 percent GF) to
$3 million (66 percent GF) to regional centers and DDS,
combined, to establish the framework, policies and
processes associated with reporting of financial interests
for regional center leadership and their families and
extended families and for DDS to establish and maintain a
substantial programmatic, legal, and investigatory
framework for regional center employees. Unknown on-going
costs in the range of $500,000 (66 percent GF) to $700,000
(66 percent GF), combined, to regional centers and DDS to
continue requirements in the future. It is unclear what
portion of these costs are attributable the investigatory
framework that is the subject of this bill.
BACKGROUND AND DISCUSSION
Authors' statement
The authors (the members of Assembly Accountability and
Administrative Review Committee) state that, although the
private, non-profit system of 21 regional centers are
funded with close to $4 billion in federal and state funds
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per year, the public does not have access to the level of
information about their operations or financial
transactions that it would have if these were public
agencies.
The authors note that, on June 10, 2009, the Assembly
Accountability and Administrative Review Committee (AAARC)
heard testimony illustrating the need to increase
transparency in regional center operations, information
pertaining to conflicts of interest, and threats and acts
of retaliation against employees, among other issues. The
authors note that, "most of the comments-received
confidentially by AAARC staff-centered on individuals' fear
of retaliation from DDS or their local regional center for
reporting wrongdoing."
The authors note that employees of public agencies in
California can make confidential reports of improper
activities to the Whistleblower Protection Hotline,
operated by the Bureau of State Audits, and, in many
agencies, employees can also make confidential reports to
an inspector general or ombudsman. The authors highlight
that current law does not provide an avenue for regional
center employees to make confidential complaints to any
investigative body. The authors note that, in the year
since its hearing, the AAARC has continued to receive an
escalating number of reports alleging intimidation and
retaliation against regional center employees-among others-
who report wrongdoing.
Regional centers
Every individual with a developmental disability (or
disabilities), as defined through the Lanterman Act, and,
where appropriate, his or her parents, legal guardian or
conservator, or authorized representative, must have the
opportunity to actively participate in the development of
an individual program plan (IPP). The IPP includes a
statement of goals, based on the needs, preferences and
life choices of the individual and a schedule of the type
and amount of services and supports to be purchased by the
regional center or obtained from generic agencies or other
resources to achieve the IPP goals and objectives. Any
provider may become a vendor of services if that provider
that meets the necessary qualifications. Regional centers
employ almost 7,000 individuals statewide.
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DDS' oversight of regional centers
DDS has performance contracts with regional centers,
whereby DDS monitors progress, and follows-up when the
regional center fails to maintain an acceptable level of
compliance with performance objectives or make progress
toward meeting them. DDS may impose corrective actions on
a regional center, additional contract provisions, and
levels of probation. DDS also performs biennial (or annual,
if warranted) fiscal audits on regional centers.
Additionally, for the purpose of ensuring the center is
meeting federal requirements pursuant to the DDS' approved
federal waiver, DDS visits each center every other year,
whereby DDS staff reviews records, interviews consumers and
staff, and visits program sites. DDS must also review
regional center purchase of service policies to prevent a
center from utilizing a policy that violates the Lanterman
Act.
DDS' handling of complaints
In addition to the fair hearing process established in law
for consumers and their families related to disagreements
about the IPP and provision of services (or whenever a
consumer or family thinks the regional center has taken an
action that is not in the best interest of the consumer)
and other investigations of violations of consumer rights,
DDS posts on its Web site information and a form related to
citizen complaints and comments. In addition, DDS states
that "?anyone can write to or call DDS with a complaint or
question concerning a regional center or the provision of
services in the community, and DDS will act."
Whistleblower statute and protection against retaliation
Regional centers are not covered under the California
Whistleblower Protection Act (WPA), which establishes
similar procedures and protections with respect to
confidential complaints made against state agencies by
state employees and other "persons," which is broadly
defined. WPA specifically provides for fines,
imprisonment, and civil liability for specified violations,
such as retaliation or reprisal against a state employee or
applicant for making protected disclosures, as defined, to
the State Auditor. Regional centers, like other
non-governmental employers, are subject to the Labor Code
prohibitions on retaliation against employees for
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disclosures of violations of state or federal statute, or a
violation of or noncompliance with a state or federal rule
or regulation. These provisions include fines and criminal
penalties for violations of the provisions.
AAARC June 10, 2009, hearing on regional centers
The background briefing paper prepared by AAARC staff for
the June 10, 2009, informational hearing notes that the
regional center system "differs from other state services
because the point of service for consumers is a private,
non-profit organization, as opposed to a state or local
public agency." As a result, AAARC staff notes, "many
transparency and accountability provisions in the law which
apply to public agencies, do not apply to [RCs]." AAARC
staff state that "much of the information that [RCs] are
required to provide to DDS or to make available to the
public, is available only upon request" and that AAARC
staff "has heard widespread allegations about the
burdensome process of requesting information from or about
[RCs], and the related fear of retribution." According to
AAARC staff, several regional centers were reputed to be
well-run; however, "other [RCs] were fraught with
allegations of conflict of interest, over billing, refusals
to provide information, and retaliation towards those who
raised concerns about the way their local [RC] operates."
AAARC staff state that "[t]here is currently no way to make
. . . reports or complaints to the [RC], DDS, the Attorney
General, or any other oversight agency in an anonymous
manner because Whistleblower protections are not
applicable."
Allegations of wrongdoing
In response to a request from committee staff for
additional information uncovered by AAARC staff in its
review of regional centers, which began in Feb/March 2009,
AAARC staff responded with the following:
Examples of wrongdoing reported confidentially to the
Assembly Committee on Accountability and
Administrative Review include:
Regional center staff being reprimanded or
threatened with dismissal for presenting options
or choices to consumers and their families at IPP
meetings instead of directing them to providers
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preferred by regional center management.
Generally with this type of complaint, that
preference is based on familial or social
relationships as opposed to objective criteria
such as assessments of provider quality;
Regional center staff being threatened with
dismissal if they disobey an order to lie to
consumers about the availability of services with
a provider that has raised concerns about
regional center operations;
Regional center staff being dismissed for raising
questions about preferential treatment of vendors
based on familial relationships with regional
center management.
These activities violate the right of consumers to
make informed decisions and to access the services
that may best meet their needs. According to the
Lanterman Act:
"The right of individuals with developmental
disabilities to make choices in their own lives
requires that all public or private agencies receiving
state funds for the purpose of serving persons with
developmental disabilities, including, but not limited
to, regional centers, shall respect the choices made
by consumers or, where appropriate, their parents,
legal guardian, or conservator. Those public or
private agencies shall provide consumers with
opportunities to exercise decision-making skills in
any aspect of day-to-day living and shall provide
consumers with relevant information in an
understandable form to aid the consumer in making his
or her choice." (WIC 4502.1)
"It is the intent of the Legislature to ensure that
the individual program plan and provision of services
and supports by the regional center system is centered
on the individual and the family of the individual
with developmental disabilities and takes into account
the needs and preferences of the individual and the
family, where appropriate, as well as promoting
community integration, independent, productive, and
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normal lives, and stable and healthy environments. It
is the further intent of the Legislature to ensure
that the provision of services to consumers and their
families be effective in meeting the goals stated in
the individual program plan, reflect the preferences
and choices of the consumer, and reflect the
cost-effective use of public resources." (WIC
4646(a))
AAARC staff also provided that since it began its review of
regional centers and since its June 2009 hearing, AAARC has
received an average of one complaint per week related to
regional center activities, the majority of which have
dealt with improper regional center activities, identified
above. AAARC staff indicate that the majority of the calls
are from providers and family members of consumers, with
the next group represented being regional center employees;
and that providers, advocates, and family members of
consumers routinely reference instances of regional center
staff withholding reports of improper activities out of
fear of retaliation. (AAARC staff notes that it has pursued
other parallel efforts to improve transparency and
accountability in the regional center system, and has
received calls pertaining to those efforts as well.)
During AAARC's June 10, 2009, hearing, which dealt with
various issues related to regional center accountability,
AAARC staff noted that one provider who testified at that
hearing primarily addressed preferential treatment among
vendors and retaliation against vendors for raising
concerns about regional center operations. (AAARC staff
noted that, in his case, regional center management
directed case managers to tell consumers and their families
that his program was closed, had a years-long waiting list,
or was found to have committed various types of fraud, none
of which was true; and this persisted even after some of
these allegations were repeatedly disproven in audits
conducted by the regional center in question.) AAARC noted
that the regional center employees involved in this case
feared retaliation and had no avenue to make confidential
reports.
With regard to the complaints that have come to AAARC, the
staff states that it handles complaints depends on the
nature of the complaint. "If an individual contacts the
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Committee regarding a problem for which there is an
existing administrative remedy, and threat of retaliation
is not an issue, [AAARC staff] put them in contact with the
agency or individual that can assist them. That may be
DDS, Disability Rights California, Adult Protective
Services, etc." AAARC staff indicate that when DDS
follows-up on a complaint, the department typically
provides the name of the complainant to the regional center
involved. AAARC staff state that many individuals have
contacted AAARC to relate their experiences with previous
complaints to DDS, and the result of this process
[complaints to DDS, which provided the name of the
complainant to the regional center involved] is that
employees are often retaliated against by regional center
management.
AAARC committee staff note that the individuals who contact
AAARC regarding improper regional center activities are
generally aware of at least one avenue to make a report,
generally to DDS; but "they refrain from using the options
available to them because they personally have been
threatened or intimidated, or because they have witnessed
someone else experience this for speaking out or raising
questions about improper regional center activities."
AAARC staff state that the concerns raised by AAARC pertain
to "the ability of regional center staff to provide, and
the right of consumers and their families to receive, the
best service that they can without fear of retaliation."
AAARC staff state that "a consumer cannot know and
therefore cannot make use of the fair hearing process to
address instances where a case manager withholds
information at an IPP meeting out of fear of retaliation."
Bureau of State Audits (BSA) audit of DDS
BSA is currently auditing DDS, and is expected to release a
report in August 2010. According to BSA, this audit will
provide independently developed and verified information
related to DDS and a sample of regional centers and would
include, be not be limited to, the following: an
examination of DDS's oversight responsibilities for its
regional centers; a review of a sample of paid invoices for
the past two fiscal years at each regional center
(selected) and a determination if the activities for
payment were reasonable and/or allowable under the law; a
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review a sample of service provider contracts for the past
two fiscal years at each regional center (selected) and an
evaluation of the regional centers' policies and practices
for awarding contracts to service providers, including how
the regional centers determine that the service providers
can satisfy the needs of the consumers, whether past
performance by a service provider was considered, and the
potential for conflict of interest did not exist; a survey
of a sample of current and past service providers to obtain
information on whether the providers are reluctant to file
complaints for fear of retaliation or believe they
experienced retaliation from the regional centers and the
reason for their perceptions; a determination if the
regional centers' procedures for allowing public access to
information on operations complies with law.
Arguments in support
The California Disability Services Association (CDSA)
writes that the duties of regional centers make them
quasi-governmental in nature, in that they expend large
sums of money, enforce various laws and regulations, and
serve as a gateway to services for the population they are
charged with serving. CDSA states that, because of the
size and independence of regional centers, it is important
that their professional staffs be permitted to fully
participate as part of an important network of safety for
consumers and for fiscal operations on behalf of taxpayers.
CDSA contends that the whistle-blower protection afforded
by the bill is virtually identical to that extended to
public employees who exercise similar responsibilities
within various government departments and agencies.
One attorney writes on behalf of his client who was
employed by a regional center as a consumer services
coordinator for 14 years. The attorney states that while
his client was reviewing his caseload, he noticed that the
state was being billed for services that were not
authorized by his clients' IPPs. The attorney states that
when his client asked supervisors about the billings, his
client was told not to concern himself with the matter. The
attorney states that his client had, in conferring with
other coordinators, determined that vendors had billed the
state for hundreds of thousands of dollars for services,
for which coordinators had no evidence that the services
had been rendered. The attorney notes that his client had
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contacted both DDS and the AG, after which the regional
center began disciplinary proceedings against him. The
attorney indicates that his client was then terminated for
circulating his concerns to other staff, in alleged
violation of the regional center's e-mail policy.
Arguments in opposition
The Association of Regional Center Agencies (ARCA) write
that existing law provides overlapping protection for
regional center employees under WPA, and, that as a
nonprofit corporation, regional centers just file annually
IRS Form 990, which prompts agencies to have a
whistleblower protection policy in place. ARCA states that
it concurs with committee analyses of a similar measure (AB
1589 of 2009 - see below), that layering additional
provisions, procedures, and penalties on regional centers
may be premature and inefficient. ARCA raises procedural
concerns in pointing out that AB 1589 of 2009 was held
under submission by the Assembly Appropriations Committee
due to its fiscal impact during the state's fiscal crisis,
and this measure has been gutted and amended late in the
session.
Related/prior legislation
AB 1589 (Committee on Accountability and Administrative
Review) of 2009 requires regional centers (RCs) to disclose
information on "related-persons transactions" and
establishes whistleblower protections for RC employees who
report improper RC activities. Held under submission by
the Assembly Appropriations Committee.
AB 1749 (Lowenthal and Strickland) of 2010 would extend to
judicial branch employees certain additional rights under
the Whistleblower Protection Act to complain about improper
governmental activities and protections against retaliation
for making those complaints and other protected
disclosures. Set for hearing in Senate Judiciary Committee
on June 29, 2010.
PRIOR VOTES
Not relevant. This is a gut and amend.
COMMENTS
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1.Substantially similar to a measure held in the Assembly.
This bill, a gut and amend, is substantially similar to
another bill, AB 1589 (Committee on Accountability and
Administrative Review) of 2009, which was held by the
Assembly Appropriations Committee. While the provisions
pertaining to the disclosure of information on
"related-persons transactions" were removed from AB 435,
as amended June 22, several costs likely remain.
2.Allegation of wrongdoing. While the AAARC staff report
that its committee received numerous reports of alleged
threats and acts of retaliation, it is unclear whether
all reports were separate incidents, or which reports
were ultimately substantiated. It is also unclear which
complaints were reports of actual threats and
retaliations versus fears of retaliation (although both
are problematic). Additionally, while these reports were
made since early 2009, it is unclear over what time
period such incidents occurred. The authors may wish to
clarify which cases need further resolution.
3.Precedent of extending whistleblower protections beyond
state employees.
The California Whistleblower Protection Act (WPA) applies
only to public employees in civil service, at California
State Universities, and the University of California
system. (Additionally, AB 1749 of 2010 would extend it
to also include judicial branch employees.) This measure
would be the first time private sector employees would
get such protections. While regional centers have a
unique relationship to the state, in providing services
to a vulnerable population under a contract to fulfill
services that the state has promised as an entitlement,
the committee may wish to consider the precedent this may
set for other entities, such as area agencies on aging,
Medi-Cal managed care plans, or nursing facilities-that
also provide services to a vulnerable population using
state and federal dollars.
4.At-will employment. Most private sector employees are
"at-will" and can be fired for any reason, except those
that are unlawful. The author may wish to ask
Legislative Counsel whether any provisions of this bill
would affect the nature of this "at-will" aspect of
private-sector employment.
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5.Proper roles for DDS and regional centers. As noted
above, the authors state that, "most of the
comments-received confidentially by AAARC staff-centered
on individuals' fear of retaliation from DDS or their
local regional center for reporting wrongdoing." If
there is fear of retaliation from DDS (regardless of
whether the fear is justified), DDS may not be the best
authority to investigate matters that must be kept
confidential "unless findings are deemed necessary to
serve the interests of the state." It is unclear who
would make such findings, if not DDS. Likewise, the bill
requires DDS to submit a report of improper regional
center activity to the regional center director. It is
unclear what process would unfold if the regional center
director was the individual engaging in improper
activities.
In comparing this statute to WPA, under WPA, an
independent party (the State Auditor) has authority to
investigate allegations of improper governmental
activities by any person, but can use its discretion to
investigate or not investigate, and also has no
enforcement power over recommendations. In contrast,
this bill requires an interested party (DDS, which has a
contractual relationship with regional centers) to
investigate all allegations of improper regional center
authority by any person. The author may wish to consider
whether DDS' role in this process would not be better
served by a neutral third party, and what should happen
if the regional center director is the individual
engaging in improper activities. DDS may also want to
advise the committee on the extent of its enforcement
authority over regional center activity via the contract.
6.Differences in whistleblower protections between this
bill and current law. Several differences exist between
this bill and current law, some of which have been made
at the request of other committees, such as removal of
the terms "economically wasteful" and "gross?
inefficiency" in the definition of improper activity; and
the addition of language that states that nothing in the
Act shall be construed to afford civil service employment
rights on a regional center employee. However, as
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(Comm. on Accountability and Administrative Review)
outlined in number 5 above, the reasons for the
differences pertaining to the requirement to investigate
all reported instances of improper activity by any person
(versus the discretion given to the State Auditor), and
the timeline under which to serve "notice of personnel
actions" (60 days in current law, versus 30 days under
this bill) are unclear.
7.Limits of confidentiality. As noted in the Assembly
Judiciary Committee's analysis of AB 1589 of 2009, a
similar measure, "the DDS obligation to investigate and
report may be somewhat curtailed by the bill's
countervailing obligation to guarantee complete
confidentiality to the person providing the information
that initiated the investigation, except for disclosure
to a law enforcement agency, unless that person consents
in writing. Many professional investigation protocols
acknowledge that while appropriate confidentiality is
valuable, a guarantee of total confidentiality to a
complainant can significantly restrain the scope and
thoroughness of an investigation for the simple reason
that essential facts and contentions cannot be checked or
evaluated without revealing the source. A guarantee of
complete confidentiality may also restrict the usefulness
of any information that can be reported to the
Legislature or other entities."
8.Alternatives to whistleblower protections. Other
committee analyses have noted issues with WPA, and
suggested that WPA may not serve as the best model for
regional centers. The authors may wish to consider
whether the purposes of the bill may be met through other
means, including an ombudsperson, or a simplified
complaint unit, rather than using a modified WPA per se
to apply to a private employer.
9.Bureau of State Audits (BSA) audit is in progress.
Currently, BSA is undertaking an audit to, among other
things, examine DDS' oversight responsibilities for its
regional centers. The audit will include a sample of
service provider contracts and evaluate regional center
policies and practices for awarding contracts;
additionally, the audit will include a survey to obtain
information on whether providers are reluctant to file
complaints for fear of retaliation. This audit is
STAFF ANALYSIS OF ASSEMBLY BILL 435 Page
19
(Comm. on Accountability and Administrative Review)
expected to be released in August 2010. Since this
measure is a committee bill with bi-partisan support,
staff recommends that the authors address the questions
and issues above, prior to moving the bill to a fiscal
committee, and also await the release of the BSA audit.
If policy issues (and any remaining fiscal issues) are
satisfactorily addressed, the bill may be passed on an
urgency basis later this year, or early next, in order to
address in a timely manner the serious allegations that
AAARC staff have uncovered.
POSITIONS
Support: California Disability Services Association
One individual
Oppose:Association of Regional Center Agencies
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