BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1377 (Corbett)
As Introduced
Hearing Date: April 17, 2012
Fiscal: Yes
Urgency: No
RD
SUBJECT
Protection and Advocacy Agencies
DESCRIPTION
Existing federal and state law provides for the designation of a
protection and advocacy (P&A) agency in each state, charged with
protecting and advocating for the rights of persons with
disabilities, as defined. Existing law authorizes P&A agencies
to investigate any incident of abuse or neglect, and to review
all relevant records of any facility or program service
recipient. Further, existing law provides that all information
and records obtained in the course of providing intake,
assessment and services, as specified, to persons with
developmental disabilities or mental health disorders shall be
confidential and disclosed only as enumerated.
This bill would specify that the P&A agency's authority to
access information and records of persons with disabilities, as
otherwise specified, shall include access to specified
unredacted records. With respect to persons with developmental
disabilities or mental health disabilities, this bill would
specify that permissible disclosures of confidential information
or records shall also include disclosure to the P&A agency to
the extent that the information is contained in specified
unredacted records. This bill would also provide that the
confidentiality of any information obtained as such must be
maintained by the P&A agency. Additionally, this bill would
change various references to the Department of Health Care
Services to the Department of Public Health and delete a
reference to a section of the California Code of Regulations.
(more)
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(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
In 1975, in response to the inhumane and despicable conditions
discovered at New York's Willowbrook State School for persons
with developmental disabilities, the United States Congress
passed the Developmental Disabilities Assistance and Bill of
Rights Act (the DD Act), mandating the creation of protection
and advocacy (P&A) agencies throughout each state. (See Melissa
Bowman, Open Debate Over Closed Doors: The Effect of the New
Developmental Disabilities Regulations on Protection and
Advocacy Programs (1997) 85 KY Law Journal 955, 956.) That DD
Act has since been repealed and replaced with the Developmental
Disabilities Assistance and Bill of Rights Act of 2000. (See 42
U.S.C. 15001 et seq. and 45 C.F.R. Part 1386, referred to as the
"PADD Act.")
Additional federal legislation was passed in 1986, expanding the
duty and authority of P&A agencies to cover persons with mental
health disabilities in the Protection and Advocacy of Mentally
Ill Individuals (PAIMI) Act. (See 42 U.S.C. 10801 et seq. and 42
C.F.R. Part 51). Then in 1993, Congress again expanded P&A
agencies' jurisdiction to cover all other persons with
disabilities that had not yet been covered by either the PADD or
PAIMI programs in the Protection and Advocacy of Individual
Rights (PAIR) Act. (See 29 U.S.C. 794e and 34 C.F.R. Part 381.)
More recently, in 2000, amendments to the PAIMI Act shifted
responsibility for people with psychiatric disabilities who live
outside of residential treatment facilities from the PAIR
program to the PAIMI program. (See also the National and
Disability Rights Network's summary of federal legislation
providing for P&A agencies
< http://www.napas.org/en/about/paacap-network.html > (as of March
31, 2012).)
The California Legislature passed SB 1088 in 1991 to enact this
state's protection and advocacy system and bring California into
compliance with federal law, and in doing so authorized the
formation of an independent nonprofit corporation, originally
called the Protection and Advocacy, Inc. (PAI) and now known as
the Disability Rights California (DRC), to execute the
investigatory mandate. (SB 1088 (McCorquodale, Ch. 534, Stats.
1991).) Then in 2003, the Legislature passed SB 577 (Keuhl, Ch.
878, Stats. 2003) to further conform to federal laws and
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regulations governing P&A agencies, and also expanded the
availability of P&A services to all persons with disabilities as
defined under California law.
P&A agencies, as provided for by these laws, are charged with
providing advocacy services to people with disabilities,
including investigating incidents of abuse or neglect and
otherwise protecting their legal and civil rights. Among other
things, existing law specifies that in order to fulfill its
investigatory authority, the P&A agency shall have access to
relevant records, as specified. (See Welf. & Inst. Code Secs.
4902(a)(1), 4903(b).)
This bill, sponsored by DRC, would specify that certain records,
including citation reports, licensing reports, survey reports,
plans of correction, and statements of deficiencies prepared, as
specified, shall be provided in unredacted form. With respect
to persons with developmental disabilities or mental health
disabilities, specifically, where existing law would prohibit
the disclosure of certain confidential information or records
subject only to limited statutory exceptions, this bill would
add to those enumerated exceptions that such information and
records shall also be disclosed to the P&A agency to the extent
that the information is contained in an unredacted citation
report, unredacted licensing report, unredacted survey report,
unredacted plan of correction, or unredacted statement of
deficiency prepared by an authorized licensing personnel or
authorized representatives described, as specified. The bill
would also specify that information obtained in those records
must be kept confidential by the P&A agency pursuant to existing
law.
CHANGES TO EXISTING LAW
1. Existing federal law mandates the creation and maintenance
of a protection and advocacy system in each state, for the
purpose of investigating allegations of abuse or neglect of
several classes of disabled persons: the developmentally
disabled, the mentally ill, and other disabled persons that
qualify for the services provided by the system. (PADD Act,
42 U.S.C. 15041 et seq.; PAIMI Act, 42 U.S.C. 10801 et seq.;
and PAIR Act, 29 U.S.C. 794e.) The establishment of a P&A
system is required for a state to receive federal funding for
services provided to the specified disabled persons.
Existing law provides that an independent private, nonprofit
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corporation designated by the Governor, shall act as the P&A
agency for the state, and requires that agency meet all
requirements of federal law applicable to P&A systems for
people with disabilities. (Welf. & Inst. Code Sec. 4901.)
Existing law defines "disability" as a developmental
disability, as defined in the federal PADD Act, a mental
illness, as defined in the federal PAIMI Act, or a disability
as defined under the federal Americans with Disabilities Act
of 1990, or as defined under the California Fair Employment
and Housing Act. (Welf. & Inst. Code Sec. 4900(a)(d).)
Existing law specifies the authorities of the P&A agency,
pursuant to its federal mandate, including the authority to
investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the P&A
agency or if the P&A determines there is probable cause to
believe the abuse or neglect occurred. Among other things,
existing law provides that this investigatory authority shall
include reasonable access to a facility or program and
authority to examine all relevant records and interview any
facility or program service recipient, employee, or other
person who might have knowledge of the alleged abuse or
neglect. (Welf & Inst. Code Sec. 4902(a)(1).)
Existing law requires that the P&A agency have access to the
records of a person with disabilities where specified
circumstances exist. (Welf. & Inst. Code Sec. 4903(a).)
Existing law provides that the P&A agency shall have access to
various individual records, whether written or in another
medium, draft or final, including, but not limited to,
handwritten notes, electronic files, photographs, videotapes,
or audiotapes. Such individual records include, but are not
limited to, specified records relating to the provision of
services, reports of investigations of specified claims
including their supporting documents, as well as any discharge
records. (Welf. & Inst. Code Sec. 4903(b)(1)-(3).)
Existing law also otherwise lists the types of information in
the possession of a program, facility, or service that must be
available to the agency investigating instances of abuse or
neglect, as specified. (Welf. & Inst. Code Sec. 4903(c).)
Existing law requires that the P&A agency be given access to
the records of specified individuals, and other records that
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are relevant to conducting an investigation of potential
instances of abuse or neglect with respect to specified
persons with disabilities not later than three business days
after the agency makes a written request. Existing law
requires that immediate access be granted not later than 24
hours after the P&A agency makes a request, without consent
from another party, in specified circumstances, if the agency
determines there is probable cause to believe that the health
or safety of the individual is in serious and immediate
jeopardy, or in a case of death of an individual with a
disability. (Welf. & Inst. Code Sec. 4903(e).)
Existing law requires that confidential information kept or
obtained by the P&A agency remain confidential and prohibits
that information from being subject to disclosure, except that
the P&A agency shall not be prevented from, among other
things, issuing a public report of the results of an
investigation that maintains the individual service
recipients' confidentiality or reporting the investigation
results to responsible agencies should an investigation reveal
information warranting possible sanctions or corrective
action, as specified. (Welf. & Inst. Code Sec. 4903(f).)
Existing law requires the P&A agency to inform and train
employees as appropriate regarding the confidentiality of
client records. (Welf. & Inst. Code Sec. 4903(g).)
This bill would provide that the authority provided under (b)
of Section 4903 above, shall include access to the following
unredacted records: a citation report, licensing report,
survey report, plan of correction, or statement of deficiency
prepared by a department responsible for issuing a license or
certificate to a program, facility, or service serving an
individual with a disability.
2. Existing law requires that, notwithstanding the section
above, information and records be disclosed, as specified, to
the P&A agency designated by the Governor in this state to
fulfill the requirements and assurances of the federal PADD
Act for the protection and advocacy of the rights of persons
with developmental disabilities, as defined (42 U.S.C. Section
15002(8)). (Welf. & Inst. Code Sec. 4514.3(a).)
Existing law requires that all information and records
obtained in the course of providing intake, assessment, and
service, as specified, to persons with developmental
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disabilities be held confidential, and that information and
records obtained in the course of providing similar services
to either voluntary or involuntary recipients prior to 1969
shall also be confidential, except that such information and
records shall be disclosed in specified cases. (Welf. & Inst.
Code Sec. 4514(a)-(u).)
This bill would add to the enumerated exceptions to Section
4514 above, that the information and records otherwise subject
to the confidentiality requirements of Section 4514 shall also
be disclosed to the P&A agency to the extent that the
information is contained in an unredacted version of any of
the following: a citation report, licensing report, survey
report, plan of correction, or statement of deficiency
prepared by an authorized licensing personnel or authorized
representatives described, as specified.
This bill would provide that the information obtained in those
records is subject to the confidentiality requirements of
Section 4903(f) of the Welfare and Institutions Code.
This bill replaces several references to Department of Health
Care Services with the Department of Public Health.
This bill deletes a reference to Section 56557 of Title 17 of
the California Code of Regulations.
3. Existing law provides that, notwithstanding Section 5328 of
the Welfare and Institutions Code, information and records
shall be disclosed to the P&A agency established in this state
to fulfill the requirements and assurances of the federal
PAIMI Act of 1991, for the protection and advocacy of the
rights of people with mental disabilities, including people
with mental health disabilities, as defined (42 U.S.C. Section
19802(4)). (Welf. & Inst. Code Sec. 5328.06.)
Existing law provides that all information and records
obtained in the course of providing specified services to
either voluntary or involuntary recipients of community mental
health services shall be confidential, except that information
and records may be disclosed, notwithstanding any other
provision of law, as specified. (Welf. & Inst. Code Sec.
5328.15(a)-(b).)
This bill would add to the enumerated exceptions to Section
5328.15 above, that the information and records otherwise
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subject to the confidentiality requirements of Section 5328.15
shall also be disclosed to the P&A agency to the extent that
the information is contained in an unredacted version of any
of the following: a citation report, licensing report, survey
report, plan of correction, or statement of deficiency
prepared by an authorized licensing personnel or authorized
representatives described, as specified.
This bill would provide that the information obtained in those
records is subject to the confidentiality requirements of
Section 4903(f) of the Welfare and Institutions Code.
COMMENT
1. Stated need for the bill
According to the author, "SB 1377 would clarify a protection and
advocacy agency's right to review reports of abuse and neglect
of individuals with development and mental health disabilities
without having to make a separate assertion of probable cause in
each case." The author further explains the need for such
clarification as follows:
Federally mandated protection and advocacy agencies such as
Disability Rights California (DRC) are charged with protecting
and advocating for the rights of persons with disabilities. In
order to fulfill this function, federal law grants protection
and advocacy �P&A] agencies the right to access reports
prepared by state agencies that investigate reports of abuse,
neglect, injury or death of persons with disabilities and
perform certification or licensing reviews.
In the past, the Department of Public Health (DPH) provided
such reports to DRC in complete and unredacted form. However,
in 2009 the DPH changed this policy for two special
populations of vulnerable individuals with disabilities-people
with developmental disabilities and people with mental health
disabilities. Citing state privacy laws governing the records
of persons with developmental disabilities (W&I Code Sec.
4514) and mental health disabilities (W&I Code Sec. 5328), DPH
began forwarding to DRC redacted records with all relevant
information about cases involving individuals with either a
developmental disability or mental health disability blacked
out. Under DPH's policy, DRC upon receipt of the redacted
report must then submit an individual written request to
receive an unredacted record for the case. For cases
involving people with all other disabilities, DRC continued to
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receive reports from DPH in the usual unredacted for.
This extra step is unnecessary and unwarranted. California
law (W&I Code Sec. 4903) already requires the P&A agencies to
maintain the confidentiality of this information and the right
to P&A's to access this information is not in dispute.
Requiring this extra layer of bureaucratic process creates a
significant time lag that often extends months before DRC
receives the unredacted report. In some cases the wait has
been almost a year. This delay can jeopardize the well-being
of the individuals involved. In addition, the requirement
creates more administrative work and unnecessary costs for the
State.
2. Timely access to reports is integral to the intended
functions of P&A agencies
Existing law provides for numerous types of reports that the P&A
agency shall have access to under subdivision (b) of Section
4903 of the Welfare and Institutions Code. This bill would
require that the P&A agency have access to the unredacted
versions of the following records: citation reports, licensing
reports, survey reports, plans of correction, and statements of
deficiency prepared by a department responsible for issuing a
licensee or certificate to a program, facility, or service
serving an individual with a disability.
As explained by the sponsor of this bill, California's P&A
agency, Disability Rights California: "Federally mandated
P&A's, such as �DRC] are charged with protecting and advocating
for the rights of persons with disabilities. In order to
fulfill this function, federal law grants P&A's the right to
access reports prepared by state agencies that investigate
reports of abuse, neglect with disabilities and perform
certification or licensing reviews." And yet, the DRC and the
author of this bill comment that in recent years a Department of
Public Health policy has created delay in DRC's timely access to
unredacted citation reports, licensing reports, survey reports,
plans of correction, and statements of deficiencies prepared by
the department. Only after the P&A agency receives a redacted
version and submits a specific written request will the
department provide the unredacted version. (See Comment 1 above
for more detail.)
DRC has notified Committee staff that in October 2010, it
started tracking how long it took to get unredacted documents
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back from DPH from the date requested. On average, DRC reports,
it takes 32 days to get reports back from the date of request to
date received. Three reports took 305 days to reach DRC, while
another two took 215 days. Those wait times have reportedly
shortened since the DRC began working with DPH to develop a
standard request form. Even still, the last 10 records
requested took an average of 24 days (three weeks), and five of
these took 45 days.
As reflected in existing law, timeliness is a vital component to
the access that existing law requires P&A agencies be afforded.
To the extent that access to these unredacted records has taken
an average 32 days to obtain, Committee staff notes that access
is arguably not being provided as mandated, or at least
envisioned, by the federal and state laws. Committee staff also
notes that the production of redacted versions arguably does not
translate into any kind of meaningful access, as samples
provided to the Committee demonstrate that the redacted versions
cause the reports to be almost entirely blacked out. Moreover,
the sponsor of this bill represents to Committee staff that
unredacted version of these records do in fact redact the actual
identity of the individuals, by providing pseudonyms. Samples
of unredacted versions confirm that the references are to
"Patient A," "Resident A," or "Licensed Nurse 3" and the like.
Thus, by specifying that these specific types of records, in
unredacted form, are to be provided to the agency in statute, it
is hoped that this bill will eliminate this relatively recent
practice that has resulted in substantial delays of records,
which are vital to the P&A agency's ability to perform its
investigatory duty.
While it is arguable that existing law provisions already give
the P&A agency the right to access these reports (Welf. & Inst.
Code Secs. 4902(a), 4903(a)-(b)), to the extent that the P&A
agency's access to full reports is obstructed by redacting
information and only providing the full, unredacted version upon
specific written request, the addition of these types of
unredacted records to the existing list of records in Section
4903 would arguably add necessary clarity and expedite the
process in the interest of these persons with disabilities who
are affected by delays in access to records.
3. Confidentiality
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With respect to persons with developmental disabilities or
mental health disabilities, this bill would specify that
permissible disclosures of confidential information or records
shall also include disclosure to the P&A agency to the extent
that the information is contained in specified unredacted
records. The bill would provide that the confidentiality of any
information obtained in those reports must be maintained by the
P&A agency as specified under existing law.
The purported reason why redacted versions have been provided in
recent years, absent a specific written request, is that
existing law requires the confidentiality of specified records
relating to persons with developmental disabilities or mental
health disabilities and permits disclosure of such records only
to specified parties or in specified cases, among which P&A
agencies are not listed. (See Welf. & Inst. Code Secs. 4514,
5328.15.)
Still, even where existing law requires the confidentiality of
specified records, the fact that the Legislature has carved out
statutory exceptions in which disclosure is required, recognizes
the importance of releasing even private or sensitive
information under certain circumstances or for certain purposes.
Given the importance of the function of P&A agencies to
safeguarding and advancing the rights of persons with
disabilities, public policy considerations justify clarifying in
these existing law sections that P&A agencies must have access
to unredacted citation reports, licensing reports, survey
reports, plans of correction, and statements of deficiencies
that are prepared as specified.
Further warranting the provision of such confidential records to
the P&A agency is that existing law explicitly requires that
confidential information kept or obtained by the P&A agency
remain confidential and prohibits that information from being
subject to disclosure (except for specified purposes that to go
to purpose and function of the agency). This confidentiality
requirement would not change with respect to the unredacted
reports that this bill would specifically require that the P&A
agency have access to under its investigatory authority.
Moreover, as noted in Comment 2 above, the unredacted version of
records that this bill would require P&A agencies have access
to, provide some added measure of confidentiality insofar as
they do not reveal the actual identity of any parties discussed
in those reports. Thus, confidentiality concerns of providing
these specified records in unredacted form to P&A agencies is
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substantially minimized.
4. Author's amendments
The author proposes the following amendments, which amend the
bill as described in this analysis:
On page 10, strike lines 21-27 and insert:
(v) To a protection and advocacy agency established pursuant to
Section 4901 to the extent that the information is incorporated
within a an unredacted citation report, unredacted licensing
report, unredacted survey report, unredacted plan of correction,
or unredacted statement of deficiency prepared by authorized
licensing personnel or authorized representatives described in
subdivision (n). This information shall remain confidential and
subject to the confidentiality requirements of subdivision (f)
of Section 4903.
On page 14, strike lines 19-23 and insert:
(h) The authority provided pursuant to subdivision (b) shall
include access to an unredacted citation report, unredacted
licensing report, unredacted survey report, unredacted plan of
correction, or statement of deficiency prepared by a department
responsible for issuing a license or certificate to a program,
facility, or service serving an individual with a disability.
On page 10, strike lines 37-40 and insert:
(c) To a protection and advocacy agency established pursuant to
Section 4901 to the extent that the information is incorporated
within an unredacted citation report, unredacted licensing
report, unredacted survey report, unredacted plan of correction,
or unredacted statement of deficiency prepared by authorized
licensing personnel or authorized representatives described in
subdivision (a). This information shall remain confidential and
subject to the confidentiality requirements of subdivision (f)
of Section 4903.
On page 11, strike lines 1-3
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Support : California Advocates for Nursing Home Reform;
California Association of Public Authorities for IHSS;
Disability Rights Education and Defense Fund, Inc., The Arc and
United Cerebral Palsy in California
Opposition : None Known
HISTORY
Source : Disability Rights California
Related Pending Legislation : None Known
Prior Legislation :
SB 577 (Kuehl, Ch. 878, Stats. 2003) See Background.
SB 1088 (McCorquodale, Ch. 534, Stats. 1991) See Background.
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