BILL ANALYSIS �
AB 862
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 862 (Silva and Jeffries) - As Introduced: February 17, 2011
SUBJECT : Developmental services: Regional Center Records Act
SUMMARY : Enacts the Regional Center Records Act (RCRA),
requiring regional centers (RCs) to disclose specified
information to the public upon request. Specifically, this
bill :
1)Requires that a RC, upon request from a member of the public,
make available the following information in a reasonable and
timely manner:
a) The company name and principals of any vendor of the RC;
b) Vendor program designs;
c) Actual rates per service code;
d) Actual rates paid to all vendors;
e) Actual rates paid per vendor code;
f) Actual rate formulas;
g) Actual vendor referral rates;
h) Vendor reviews, audits, or quality assurance reports;
i) Contracts entered into with any vendor;
j) The number of consumers that qualify for a developmental
disability waiver;
aa) Data regarding actual administrative expenditures to
include travel, salaries, and pension costs;
bb) Data regarding contracts for services to the regional
center, including, but not limited to, leases, vehicles,
legal services, consulting, and any other goods or
services;
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cc) Any legal settlements that can be disclosed;
dd) Conflict of interest disclosures;
ee) Any public moneys used for or by a nonprofit housing
organization; and,
ff) Audits of the RC.
2)Defines "vendor" to mean an individual or entity approved to
provide services and supports to consumers pursuant to the
Lanterman Developmental Disabilities Services Act (Lanterman
Act), and defines "department" to mean the Department of
Developmental Services (DDS).
3)Authorizes an RC to charge a fee to cover the actual costs of
reproducing documents commensurate with the fee schedule in
the California Public Records Act.
4)Requires DDS to consult with RCs to develop policies and
procedures to implement the provisions of the RCRA.
5)Provides that nothing in the RCRA shall be construed to limit
or change privacy protections afforded under any other
provision of law.
EXISTING LAW
1)Establishes the Lanterman Developmental Disabilities Services
Act (Lanterman Act), under which DDS contracts with 21 private
non-profit RCs to provide case management services and arrange
for, or purchase, services that meet the needs of individuals
with developmental disabilities.
2)Establishes the California Public Records Act (CPRA) and
requires state and local agencies to make their records
available for public inspection and to make copies available
upon request and payment of a fee unless the records are
otherwise exempt from disclosure by a state or federal law.
3)Provides in the Lanterman Act (at Welfare & Institutions Code
Section 4514) that, except for specifically delineated
exceptions, all information and records obtained in the course
of providing services to people with developmental
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disabilities shall be confidential.
FISCAL EFFECT : Unknown
COMMENTS : The Lanterman Act establishes a comprehensive
statutory scheme to provide services and supports to people with
developmental disabilities. Direct responsibility for
implementation of the Lanterman Act service system is allocated
between DDS and 21 RCs. RCs are private nonprofit entities
established pursuant to the Lanterman Act that contract with DDS
to carry out many of the state's responsibilities under the Act,
including intake and assessment, case management, and individual
program plan (IPP) development and implementation.
The RC budget for 2010-11 is approximately $4.1 billion in state
and federal funds to serve 244,000 people with developmental
disabilities (consumers) by securing or purchasing services
based on each consumer's individual needs and choices as
determined through the IPP process. Approximately 40,000
vendored service providers deliver a wide range of services to
consumers, such as respite care, transportation, day treatment
programs, residential placements, supported living services,
work support programs, and various social and therapeutic
activities.
Although RCs receive substantial public funds to carry out the
state's responsibilities under the Lanterman Act, they are not
state or local agencies within the meaning of the CPRA and,
therefore, are not subject to its records disclosure
requirements. A prior bill, introduced in the 2009-10 Session,
AB 2220 (Silva), would have designated RCs as local agencies
under the CPRA. AB 2220 was held on the Assembly Appropriations
Committee Suspense File. Policy concerns were also raised with
AB 2220 with respect to whether it would withstand legal
challenges, and with the precedent it would establish in
potentially subjecting other nonprofits to the disclosure
requirements of the CPRA.
Need for this bill : According to the authors, this bill seeks
to require more transparency of the 21 RCs. The authors note
that:
Recent reports by both investigative journalists and the
California State Auditors reveal that operations and
expenditures at some of the �RCs] could be more cost
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effective. Currently, the �RCs] use their non-profit status
to deny requestors information that would typically be
covered under the �CPRA]. It is reasonable to expect �RCs]
to share information with the public when they receive all
funding from the State of California. Additionally,
parents, vendors, staff and people with disabilities could
all benefit from a more uniform and transparent process.
�This bill] will require the �RCs], private non-profit
community agencies that utilize public funds to provide
state mandated services to persons with disabilities, to
disclose specific and narrow information under a new act,
the Regional Center Records Act.
BSA Audit : The California State Auditor, Bureau of State Audits
(BSA), recently issued a report of its review of RC procurement
and rate-setting processes. Department of Developmental
Services: A more uniform and transparent rate-setting process
would improve the cost-effectiveness of regional centers, Report
2009-118, August 2010 (BSA Report). The BSA visited a sample of
6 RCs. For those RCs, the Joint Legislative Audit Committee
directed the BSA to review procedures for allowing public access
to information on operations and to determine if requests for
public records made by service providers in the past two fiscal
years were satisfied in a timely manner and within the
requirements of the law. The BSA determined "that the
information that regional centers are required to make public is
limited to employment contracts and that the regional centers
are not required to maintain, and do not maintain, logs of
public information requests or track how such requests are
fulfilled. As such, we could not perform tests of public or
service provider requests for information."
The BSA Report noted the lack of formal and transparent
rate-setting and vendor-selection processes by the RCs included
in the audit. BSA Report, p. 2. It was noted that the lack of
transparency to outside reviewers results in the potential for
favoritism and makes it impossible to determine whether RCs are
properly taking cost into consideration in selecting among
comparable vendors. BSA Report, p. 46.
Budget Trailer Bill : The Governor's Budget for 2011-12 proposed
increases in accountability and transparency in the RC system.
To promote transparency, the recently chaptered 2011-12 Budget
Trailer Bill pertaining to DDS, SB 74 (Committee on Budget &
Fiscal Review), Chapter 9, Statutes of 2011, requires each RC to
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adopt, maintain, and post on its Internet Web site a
board-approved policy regarding transparency and access to
public information. The policy must provide for timely public
access to information, including information regarding requests
for proposals and contract awards, service provider rates,
documentation related to establishment of negotiated rates,
audits, and IRS Form 990. Under SB 74, each RC would be
required to post at least the following:
RC annual independent audits;
Biannual fiscal audits conducted by DDS;
RC annual reports;
Contract awards, including the organization or entity awarded
the contract, and the amount and purpose of the award;
Purchase of service policies;
The names, types of service, and contact information of all
vendors, except consumers or family members of consumers;
Board meeting agendas and approved minutes of open meetings of
the board and all committees of the board;
Bylaws of the RC governing board;
The annual performance contract and year-end performance
contract entered into with DDS;
The biannual Home and Community-based Services (HCBS) Waiver
program review conducted by DDS and the Department of Health
Care Services (DHCS);
The board-approved transparency and public information policy;
The board-approved conflict-of-interest policy; and,
The annual reports of salary schedules by personnel
classification, and operations budget expenditures for
administrative services.
In addition, SB 74 requires that DDS establish a transparency
portal on its Web site, which is to include, but need not be
limited to, all of the following:
Links to the above RC web sites;
Biannual fiscal audits conducted by DDS;
Vendor audits;
Biannual HCBS Waiver program reviews conducted by DHCS;
Early Start Program reviews conducted by DDS; and,
Annual performance contract and year-end performance contract
reports.
While there is overlap between the disclosures required by this
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bill and the information required to be posted on the Internet
by SB 74 (e.g., RC audits, vendor audits), the lists are largely
distinct. A primary difference is in the means by which
information is required to be made available. This bill
requires that individuals submit requests for information, which
RCs must respond to on a case-by-case basis. While much of the
information required by SB 74 may be already available to the
public upon request, SB 74 requires that the information be
posted on RCs' or DDS' websites, making it immediately available
to anyone with access to a computer. Under this bill, on the
other hand, information must be paid for by each individual
requesting it and would require RC staff resources to respond to
each request. Under SB 74, information would be available
without cost to the person seeking to access it and would
require no staff time once it is posted.
The Association of Regional Center Agencies (ARCA) opposes this
bill and points out that "�d]ue to budget reductions and other
cost-savings measures, �RC] staff are currently operating under
heavy workloads. They are not staffed to respond to records
requests without compromising or redirecting staff that could or
would otherwise be serving the people we are mandated by law to
serve. Our primary mission is to serve people with
developmental disabilities and their families, not to divert
scarce resources in providing information that could be accessed
through alternative means."
The fiscal impact of this bill is within the jurisdiction of the
Appropriations Committees; however, the staff resource issue
raised by ARCA does have implications for the provision of
services to consumers and family members. Without additional
staff resources, time spent responding to individual records
requests is time not spent on activities that may directly or
indirectly impact the delivery of services. This bill
authorizes an RC to charge a fee to cover the actual costs of
reproducing documents commensurate with the fee schedule in the
CPRA. The CPRA, however, limits costs to statutory fees
established by the Legislature or the "direct cost of
duplication," usually 10 to 25 cents per page. Under the CPRA
this cannot include charges for search, review or deletion;
although, programming costs to extract electronic data can be
included under the CPRA. The CPRA also does not require an
agency to create a record, list, or compilation that does not
already exist. It is not clear if some of the items subject to
disclosure under this bill (e.g., actual rates paid to all
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vendors) would require the creation of lists or compilations
that do not otherwise exist, which, of course, would require
additional staff resources.
Under the CPRA, records are broadly defined to include "any
writing containing information relating to the conduct of the
public's business prepared, owned, used, or retained by any
state or local agency regardless of physical form or
characteristic." Government Code Section 6252(e). The CPRA
further provides for various exemptions. The RCRA established
by this bill, on the other hand, does not provide broad access
to RC records with delineated exemptions. It is, instead, a
selective list of specified information and documents that RCs
are to provide upon request. The list is limited and arbitrary.
For example, much of the information that would be available to
the public on the Internet under SB 74 is not included in the
information required to be produced under this bill.
If construed as an RC counterpart to the CPRA, this bill could
arguably limit access to myriad types of RC records and, thus,
hinder the transparency that this bill is intended to promote.
A principle of statutory construction is that when one or more
things of a class are expressly mentioned others of the same
class are excluded: Expressio unius est exclusio alterius. By
enacting RC records access requirements specifying a finite list
of documents to which members of the public are to have access,
the RCRA could be interpreted to preclude access to other RC
records, not included in the list. Making the list more
open-ended, on the other hand, would require, as in the CPRA,
specification of those records that are exempt from disclosure,
such as employee personnel records, confidential consumer
information, etc. It would also require far more staff
resources to respond to records requests.
Alternative approaches : Following are two alternative
approaches to increasing transparency in the RC system that may
be more practical and cost-effective:
1)As noted, SB 74, the DDS Trailer Bill, takes a different
approach by requiring specified information to be posted on
each RC's Web site. This has the advantages of making
information available to the entire public, not just the
individual requesting it, and of avoiding the staff time
required to respond to multiple, duplicative requests.
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2)Another alternative, which could be considered in place of or
in combination with the first suggested alternative, would be
to require RCs to report additional information to DDS that
should be available to the public. At that point, the
information would become public records subject to disclosure
by DDS under the CPRA.
PROPOSED AMENDMENTS
The authors are reportedly willing to accept the following as
authors' amendments, based on alternative approach number 1),
above:
Delete the current language of this bill and, instead,
amend Section 4629.5(b) of the Welfare & Institutions Code
(added by SB 74), as follows:
(b) To promote transparency, each regional center shall
include on its Internet Web site, as expeditiously as
possible, at least all of the following:
(1) Regional center annual independent audits.
(2) Biannual fiscal audits conducted by the department.
(3) Regional center annual reports pursuant to Section
4639.5.
(4) Contract awards, including the organization or entity
awarded the contract, and the amount and purpose of the
award.
(5) The actual rates paid to each vendor.
(6) Any public funds provided to a nonprofit housing
organization outside the request for proposals process.
(5) (7) Purchase of service policies.
(6) (8) The names, types of service, principals, and contact
information of all vendors, except consumers or family
members of consumers.
(7) (9) Board meeting agendas and approved minutes of open
meetings of the board and all committees of the board.
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(8) (10) Bylaws of the regional center governing board.
(9) (11) The annual performance contract and year-end
performance contract entered into with the department
pursuant to this division.
(10) (12) The biannual Home and Community-based Services
Waiver program review conducted by the department and the
State Department of Health Care Services.
(11) (13) The board-approved transparency and public
information policy.
(12) (14) The board-approved conflict-of-interest policy.
(15) Conflict of interest disclosures.
(13) (16) Reports required pursuant to Section 4639.5.
(17) Any legal settlements that can be disclosed.
REGISTERED SUPPORT / OPPOSITION :
Support
ResCoalition (sponsor)
Equate. Advocate.
Opposition
Association of Regional Center Agencies (ARCA)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089