BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 678|
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THIRD READING
Bill No: SB 678
Author: Negrete McLeod (D)
Amended: 4/25/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 5/3/11
AYES: Anderson, Calderon, Harman, Price
NOES: Hancock, Liu
NO VOTE RECORDED: Steinberg
SUBJECT : Community corrections multidisciplinary teams
SOURCE : Chief Probation Officers of California
DIGEST : This bill (1) authorizes counties to convene
"community corrections multidisciplinary teams," as
defined, for purposes of providing "evidence-based
practices," as defined, and supervision; (2) requires 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) requires that the information
obtained be maintained in a manner that ensures the
protection of confidentiality; and (4) requires 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
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possess in the course of their duties.
ANALYSIS : Existing law authorizes the members of
multidisciplinary teams engaged in the prevention,
identification, and control of juvenile crime to share
certain information with each other, as specified.
This bill authorizes counties to convene "community
corrections multidisciplinary teams" for purposes of
providing evidence-based practices and supervision.
This bill provides 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
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services.
This bill defines "evidence-based practices" as supervision
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/4/11)
Chief Probation Officers of California (source)
California Mental Health Directors Association
California Probation, Parole and Correctional Association
California State Association of Counties
OPPOSITION : (Verified 5/4/11)
American Civil Liberties Union
California Public Defenders Association
ARGUMENTS IN SUPPORT : 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 �multidisciplinary teams] 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
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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 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.
The California Mental Health Directors Association states:
"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."
ARGUMENTS IN OPPOSITION : The American Civil Liberties
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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.
"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.
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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."
RJG:mw 5/4/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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