BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 678 (Negrete McLeod)
As Amended April 25, 2011
Hearing date: May 3, 2011
Penal Code
SM:mc
COMMUNITY CORRECTIONS MULTIDISCIPLINARY TEAMS
HISTORY
Source: Chief Probation Officers of California
Prior Legislation: SB 731 (Ashburn) - 2009, never set for
hearing in Senate Public Safety
Support: California Mental Health Directors Association;
California Probation, Parole and Correctional
Association; California State Association of Counties
Opposition:American Civil Liberties Union; California Public
Defenders Association
KEY ISSUES
SHOULD COUNTIES BE AUTHORIZED TO CONVENE "COMMUNITY CORRECTIONS
MULTIDISCIPLINARY TEAMS," AS DEFINED, FOR PURPOSES OF PROVIDING
EVIDENCE-BASED PRACTICES, AS DEFINED, AND SUPERVISION?
SHOULD EVERY MEMBER OF A COMMUNITY CORRECTIONS MULTIDISCIPLINARY
TEAM WHO RECEIVES NONPRIVILEGED INFORMATION, AS DEFINED, OR
WRITINGS BE UNDER THE SAME PRIVACY AND CONFIDENTIALITY
OBLIGATIONS AND SUBJECT TO THE SAME PENALTIES FOR VIOLATING
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THOSE OBLIGATIONS AS THE PERSON DISCLOSING OR PROVIDING THE
INFORMATION OR WRITINGS?
(CONTINUED)
SHOULD THE INFORMATION OBTAINED BE REQUIRED TO BE MAINTAINED IN A
MANNER THAT ENSURES THE PROTECTION OF CONFIDENTIALITY?
SHOULD IT BE SPECIFIED THAT THESE PROVISIONS SHALL NOT BE CONSTRUED
TO INDEPENDENTLY AUTHORIZE ACCESS TO, OR POSSESSION OF, INFORMATION
FROM LOCAL, STATE, OR FEDERAL INFORMATION SYSTEMS OR DATABASES THAT
MULTIDISCIPLINARY TEAM MEMBERS ARE AUTHORIZED TO ACCESS OR POSSESS
IN THE COURSE OF THEIR DUTIES?
PURPOSE
The purpose of this bill is to (1) authorize counties to convene
"community corrections multidisciplinary teams," as defined, for
purposes of providing evidence-based practices, as defined, and
supervision; (2) require that every member of a community
corrections multidisciplinary team who receives nonprivileged
information, as defined, or writings be under the same privacy
and confidentiality obligations and subject to the same
penalties for violating those obligations as the person
disclosing or providing the information or writings; (3) require
that the information obtained be maintained in a manner that
ensures the protection of confidentiality; and (4) require that
its provisions not be construed to independently authorize
access to, or possession of, information from local, state, or
federal information systems or databases that multidisciplinary
team members are authorized to access or possess in the course
of their duties.
Current law creates multidisciplinary teams to provide treatment
plans for juvenile wards of the court who are seriously
emotionally disturbed, have a serious mental disorder, or have a
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developmental disability. (Welfare and Institutions Code (WIC)
� 713.)
Current law creates multidisciplinary teams to provide services
to seriously emotionally disturbed and special needs children
and other county family and children's services programs, as
specified. (WIC � 18986.40, et seq.)
Current law creates multidisciplinary teams who are trained in
the prevention, identification, management, or treatment of
abuse of elderly or dependent adults. (WIC � 15610.55, et seq.)
Current law includes legislative intent that "child abuse and
neglect prevention and intervention programs be encouraged by
the funding of agencies addressing needs of children at high
risk of abuse or neglect and their families." (WIC � 18960(a).)
Current law includes "multidisciplinary team services" under
programs eligible for funding provided under these provisions.
(WIC � 18961(a)(4).)
Current law provides that "'Multidisciplinary personnel' means
any team of three or more
persons who are trained in the prevention, identification, and
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treatment of child abuse and neglect<1> cases and who are
qualified to provide a broad range of services related to child
abuse. The team may include but not be limited to:
(1) Psychiatrists, psychologists, marriage and family
therapists, or other trained counseling personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide
health services.
(4) Social workers with experience or training in child
abuse prevention.
(5) Any public or private school teacher, administrative
officer, supervisor of child welfare and attendance, or
certificated pupil personnel employee." (WIC � 18951(d).)
Current law provides that "members of a multidisciplinary
personnel team engaged in the prevention, identification, and
treatment of child abuse may disclose and exchange information
and writings to and with one another relating to any incidents
of child abuse that may also be a part of a juvenile court
record or otherwise designated as confidential under state law
if the member of the team having that information or writing
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<1> "Child abuse" in this context is defined as follows:
"Child abuse" "means a situation in which a child suffers from
any one or more of the following: (1) Serious physical injury
inflicted upon the child by other than accidental means. (2)
Harm by reason of intentional neglect or malnutrition or sexual
abuse. (3) Going without necessary and basic physical care.
(4) Willful mental injury, negligent treatment, or maltreatment
of a child under the age of 18 years by a person who is
responsible for the child's welfare under circumstances that
indicate that the child's health or welfare is harmed or
threatened thereby, as determined in accordance with regulations
prescribed by the Director of Social Services. (5) Any
condition that results in the violation of the rights or
physical, mental, or moral welfare of a child or jeopardizes the
child's present or future health, opportunity for normal
development or capacity for independence." (WIC � 830,
cross-referencing WIC � 18951.)
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reasonably believes it is generally relevant to the prevention,
identification, or treatment of child abuse. All discussions
relative to the disclosure or exchange of any such information
or writings during team meetings are confidential and,
notwithstanding any other provision of law, testimony concerning
any such discussion is not admissible in any criminal, civil, or
juvenile court proceeding." (WIC � 830.) As used in this
section, "multidisciplinary personnel team" means any team of
three or more persons, as specified in Section 18951, the
members of which are trained in the prevention, identification,
and treatment of child abuse and are qualified to provide a
broad range of services related to child abuse. (Id.)
Current law provides that, with respect to applications and
records concerning any form of public social services for which
grants-in-aid, "the activities of a multidisciplinary personnel
team engaged in the prevention, identification, and treatment of
child abuse or the abuse of elder or dependent persons are
activities performed in the administration of public social
services, and a member of the team may disclose and exchange any
information or writing that also is kept or maintained in
connection with any program of public social services or
otherwise designated as
confidential under state law which he or she reasonably believes
is relevant to the prevention, identification, or treatment of
child abuse or the abuse of elder or dependent persons to other
members of the team. All discussions relative to the disclosure
or exchange of any such information or writing during team
meetings are confidential and, notwithstanding any other
provision of law, testimony concerning any such discussion is
not admissible in any criminal,
civil, or juvenile court proceeding." (WIC � 10850.1.) "As
used in this section, 'multidisciplinary personnel team' means
any team of three or more persons, as specified . . . , the
members of which are trained in the prevention, identification,
and treatment of child abuse or the abuse of elder or dependent
persons and are qualified to provide a broad range of services
related to child abuse or the abuse of elder or dependent
persons." (Id.)
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This bill would authorize counties to convene "community
corrections multidisciplinary teams" for purposes of providing
evidence-based practices and supervision.
This bill would provide that every member of a community
corrections multidisciplinary team who receives nonprivileged
information or writings shall be under the same privacy and
confidentiality obligations and subject to the same penalties
for violating those obligations as the person disclosing or
providing the information or writings. The information obtained
shall be maintained in a manner that ensures the protection of
confidentiality.
This bill defines, "nonprivileged information" as any
information not subject to a privilege pursuant to Division 8
(commencing with Section 900) of the Evidence Code.
This bill defines, "community corrections" as the placement of
persons convicted of a felony offense under probation
supervision, with conditions imposed by a court for a specified
period.
This bill defines, "multidisciplinary team" as any team of three
or more persons, the members of which are engaged in providing
community corrections supervision, treatment, and services. The
team may include, but is not limited to:
Probation officers.
Police officers, sheriffs' deputies, and other law
enforcement officers.
Social workers.
Health and mental health providers.
Substance abuse treatment providers.
Education professionals.
Employment coordinators.
Representatives from community-based organizations with
experience in successfully providing rehabilitative
services.
This bill defines "evidence-based practices" as supervision
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policies, procedures, programs, and practices demonstrated by
scientific research to reduce recidivism among individuals under
probation, parole or postrelease supervision.
This bill states that its provisions shall not be construed to
independently authorize access to, or possession of, information
from local, state, or federal information systems or databases
that multidisciplinary team members are authorized to access or
possess in the course of their duties.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
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2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
A fact sheet provided by the author's office describes the
following purposes for this bill:
Clarify - The probation officer's authority to
develop and implement community corrections programs
that incorporate MDT teams. (Current state
authorizes juvenile justice, child abuse and mental
health MDT's, but does address MDTs adult
probationers.)
Ensure that members of a probation MDT can be
held to the same level of confidentiality and to the
same level of consequences for failure to maintain
confidentiality as probation employees are. For
example, not disclose to unauthorized persons an
offender's status as a probationer, without the
permission of the probationer.
Ensure that if employees of probation who come
into possession of confidential information from
other participants in the MDT the probation
employees can be held the same level of
confidentiality as the original processor of that
information. For example: confidential information
contained in an Addiction Severity assessment
administer by a substance abuse provider.
As to the consent issue, Court opinions have
consistently found a grant of adult probation
requiring the consent of the offender. Once a
person accept adult probation, the probation officer
has the authority to determine level and type of
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supervision consistent with the court ordered
conditions of probation. Probationers have the
right to challenge the level and type of supervision
based on whether it is consistent with the
conditions of probation. In addition probationers
have certain confidentiality rights, the most basic
being the confidentiality of his/her status as a
probationer. Therefore, probation obtains both the
consent of the probationer to participated programs,
as well as consents from probationer for release of
information from treatment providers. This
legislation is intended to preserve those rights.
2. Multidisciplinary Teams in Other Contexts
Current law grants authority, and in some cases mandates
creation of, multidisciplinary teams (MDTs) to tackle complex
social issues. These include in the areas of prevention of
elder abuse (WIC � 15610.55, et seq.), child abuse (WIC �
18961(a)(4)), juvenile wards of the court with serious mental
illness (Welfare and Institutions Code � 713), and support for
emotionally disturbed children and their families (WIC �
18986.40, et seq.). The concept and purpose of
multidisciplinary teams is to gather the collective knowledge
and input of several experts specializing in different aspects
of a social problem and pool their knowledge and skills to
formulate a comprehensive and coordinated response to assisting
a particularly vulnerable population.
Clearly, at the core of this enterprise is the sharing of
pertinent information. The statutory provisions listed above
have established specific, highly detailed, rules and parameters
for the sharing of information by MDT members in their specific
context, each of whom may have access to information that the
other members of the team may not legally be permitted to obtain
or possess. Under what conditions information may be shared and
for what purposes are issues at the heart of the MDT approach.
A recent report by the California Endowment on the use of MDTs
in juvenile probation cases addressed the prerequisites that may
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be necessary to allow information sharing between juvenile MDT
members:
Even if MOUs are established with providers
participating in MDTs to share information,
confidentiality issues including youths' Health
Insurance Portability and Accountability Act (HIPPA)
rights, Family Educational Rights and Privacy (FERPA),
their right to consent to services, juvenile court
confidentiality rights, and parental rights still
exist. In Los Angeles County, consent from youth and
parents is needed first to open the doors for
cross-systems information sharing. Other counties
established standing court orders to facilitate the
sharing of information. (Multidisciplinary Teams,
California Endowment, December 2010, on file with the
Committee.)
The sponsors of this bill have informed Committee staff that the
Los Angeles County Probation Department has had lengthy
negotiations with the Los Angeles Public Defender's Office over
what sort of waivers their clients might be willing to sign in
order to participate in an MDT. Despite the parties devoting a
great deal of time to these negotiations, staff was informed
that they could not reach agreement on the nature and scope of
any such waivers. It is not clear to what extent this bill is
intended to or would resolve those issues.
3. What This Bill Would Do
As noted above, MDTs have been utilized in other contexts
involving the protection of specifically identified vulnerable
groups such as elders, small children or youths with severe
mental disorders. This bill would expressly authorize counties
to create "community corrections multidisciplinary teams," which
could be utilized in any or all criminal cases in which a person
is convicted of a felony and granted probation. These MDTs
would be authorized for the purposes of providing
"evidence-based practices and supervision." Members may wish to
consider whether there is research demonstrating that this is a
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successful approach when applied to supervising felony
probationers? If so, what does the research demonstrate are the
essential elements of a successful MDT program? For example,
who are the essential members of an MDT?
SB 678 does not specify the composition of a "community
corrections MDT" other than to say it would have at least three
members and that they be "engaged in providing community
corrections supervision, treatment, and services." The bill
states that the MDT might include probation officers, police
officers, sheriffs' deputies, and other law enforcement
officers, social workers, health and mental health providers,
substance abuse treatment providers, education professionals,
employment coordinators, and representatives from
community-based organizations with experience in successfully
providing rehabilitative services. However, the bill does not
require that any of these people be included.
The bill does not address several specifics as to how a
community corrections MDT would function. For example, it is
not specified whether participation by a probationer would be
voluntary. Could some or all probationers be required to
participate on threat on having their probation revoked if they
refused? If a probationer's consent is not required before an
MDT meeting takes place including his or her probation officer,
a police officer and the probationer's therapist, could that
potentially interfere with the probationer's willingness to
confide in the therapist? If the probationer's therapist
refuses to participate in the MDT, could that be grounds to
revoke probation?
IS USE OF MULTIDISCIPLINARY TEAMS IN SUPERVISING FELONY
PROBATIONERS AN EVIDENCE-BASED APPROACH?
IF SO, WHAT DOES THE RESEARCH SHOW ARE THE ESSENTIAL ELEMENTS OF
A SUCCESSFUL COMMUNITY CORRECTIONS MULTIDISCIPLINARY TEAM?
DOES THIS BILL INCORPORATE THE ELEMENTS OF ANY RESEARCH IN THIS
AREA?
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ARE THE DETAILS OF HOW COMMUNITY CORRECTIONS MULTIDISCIPLINARY
TEAM WOULD BE UTILIZED SUFFICIENTLY SPECIFIED?
WOULD PARTICIPATION BE VOLUNTARY ON THE PART OF THE PROBATIONER?
IF NOT, WHAT PRIVACY RIGHTS MIGHT THE PROBATIONER BE REQUIRED
TO WAIVE TO AVOID HAVING HIS OR HER PROBATION REVOKED?
This bill addresses the issue of information sharing by
providing that every member of the MDT who receives
nonprivileged information or writings shall be "under the same
privacy and confidentiality obligations and subject to the same
penalties for violating those obligations as the person
disclosing or providing the information or writings and that the
information obtained shall be maintained in a manner that
ensures the protection of confidentiality." This does not
address the issue of how the team members could use any
privileged information that is revealed either deliberately or
inadvertently. For example, if a team member is a mental health
care provider and reveals to the other team members a
confidential communication that he or she received from the
probationer, that would be a disclosure of privileged
information. The bill does not appear to place any restrictions
on what the other team members could do with that information.
If, for example, the probationer admits to his psychiatrist
confidentially that he had a relapse and had used illegal drugs,
and the psychiatrist divulges this privileged information at an
MDT meeting, while the psychiatrist might be violating various
confidentiality laws and might be liable to the probationer for
violating his confidentiality, there would appear to be no
restriction on the probation officer using that information to
have the probationer sent to jail. Under these circumstances,
requiring a probationer to take part in an MDT could have the
unintended effect of inhibiting the relationship between the
probationer and their therapist. There would also appear to be
no evidence-based rationale for allowing such breaches of
confidentiality to be used against the probationer in a court
proceeding.
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4. Suggested Amendment
Members might wish to consider whether the bill should be
amended to include the following language:
"Information obtained in connection with a community
corrections MDT shall not be admissible in any
criminal, civil, or juvenile court proceeding."
SHOULD THIS AMENDMENT BE TAKEN?
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5. Argument in Support
The California Mental Health Directors Association state:
County mental health departments in many counties
actively participate in local multidisciplinary teams
and other collaborative efforts for serving local
criminal justice populations, a significant number of
whom have serious mental health disorders. As the
devolution of responsibility for criminal justice and
other health and human services continues to move from
the state to the counties, it will be increasingly
critical that multidisciplinary team members have the
authorization to share information with one another in
order to ensure that service providers can meet the
holistic needs of probationers in a timely and
effective manner.
6. Argument in Opposition
The American Civil Liberties Union states:
Current law already permits community corrections
personnel access to confidential information about the
student or family with either the consent of the
individual or where authorized under the terms of
probation. The California Constitution provides that
all people have inalienable rights, including the
right to pursue and obtain privacy. (Cal.Const. art.
I, sec.1). In addition, California's Confidentiality
of Medical Information Act (CMIA) (California Civil
Code Section 56.10 (a)) and the federal Health
Insurance Portability and Accountability Act of 1996
(HIPAA) generally prohibit health care providers from
disclosing medical information about patients or
subscribers without first obtaining authorization.
And, the California Department of Justice carefully
guards the confidentiality of criminal justice
databases.
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SB 678 would allow health and mental health providers,
social workers, and probation officers among others to
communicate confidential "non privileged" information
about a probationer or his or her family without first
obtaining consent. California only allows seizures
that interfere with fundamental privacy rights with a
showing of compelling interest. White v. Davis, 13
Cal. 3d 757, 775 (1974) (holding the privacy right
prohibits the disclosure of personal information
unless justified by a compelling interest), Hill v.
National Collegiate Athletic Assn., 7 Cal. 4th 1, 34
(1994) (holding a "compelling interest must be present
to overcome the vital privacy interest").
In addition, the Court has held that California
Constitution requires that there be no other less
intrusive means of serving the party's interest before
medical records can be discovered. American Academy
of Pediatrics v. Lungren, 16 Cal. 4th 307, 341 (1997)
(discovery of private medical records is allowed only
if the discovering party's interest "cannot be served
by alternative means less intrusive on fundamental
rights").
While we have asked for evidence of the "need" for
this legislation, we have not been provided that
information. Nor have we been provided with
information that this community corrections approach
actually works and that it is necessary to share
individual's private information without their
consent. We are concerned that the goal of
rehabilitation will actually be undermined by the
non-consensual sharing of participant's information.
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