BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1377|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1377
Author: Corbett (D)
Amended: 4/19/12
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 4/17/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Protection and advocacy agencies
SOURCE : Disability Rights California
DIGEST : This bill specifies that a protection and
advocacy (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
specifies 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 also provides
that the confidentiality of any information obtained as
such must be maintained by the P&A agency. Additionally,
this bill changes various references to the Department of
Health Care Services to the Department of Public Health
(DPH) and deletes a reference to a section of the
California Code of Regulations.
CONTINUED
SB 1377
Page
2
ANALYSIS : Existing federal law mandates the creation and
maintenance of a P&A 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. (Protection and
Advocacy for Developmental Disabilities Act �PADD Act], 42
United States Code �U.S.C.] 15041 et seq.; Protection and
Advocacy for Individuals with Mental Illness Act �PAIMI
Act], 42 U.S.C. 10801 et seq.; and Protection and Advocacy
of Individual Rights 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 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. (Welfare and
Institutions Code �WIC] Section 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. (WIC Section
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. (WIC Section 4902(a)(1))
CONTINUED
SB 1377
Page
3
Existing law requires that the P&A agency have access to
the records of a person with disabilities where specified
circumstances exist. (WIC Section 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. (WIC Section
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. (WIC Section 4903(c))
Existing law requires that the P&A agency be given access
to the records of specified individuals, and other records
that 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. (WIC
Section 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
CONTINUED
SB 1377
Page
4
sanctions or corrective action, as specified. (WIC Section
4903(f))
Existing law requires the P&A agency to inform and train
employees as appropriate regarding the confidentiality of
client records. (WIC Section 4903(g))
This bill provides 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.
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 P&A of the rights of persons with
developmental disabilities, as defined (42 U.S.C. Section
15002(8)). (WIC Section 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
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. (WIC Section 4514(a)-(u))
This bill adds 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 incorporated within 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.
CONTINUED
SB 1377
Page
5
This bill provides that the information obtained in those
records is subject to the confidentiality requirements of
Section 4903(f) of the WIC.
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.
Existing law provides that, notwithstanding Section 5328 of
the WIC, 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 P&A of the rights of people with mental
disabilities, including people with mental health
disabilities, as defined (42 U.S.C. Section 19802(4)).
(WIC Section 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. (WIC Section
5328.15(a)-(b))
This bill adds to the enumerated exceptions to Section
5328.15 above, that the information and records otherwise
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 provides that the information obtained in those
records is subject to the confidentiality requirements of
Section 4903(f) of the WIC.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
CONTINUED
SB 1377
Page
6
SUPPORT : (Verified 5/8/12)
Disability Rights California (source)
California Advocates for Nursing Home Reform
California Association of Public Authorities
California Association of State Hospital Parent Councils
for the Retarded
Consumer Attorneys of California
Disability Rights Education and Defense Fund
Epilepsy California
The Arc
United Cerebral Palsy
ARGUMENTS IN SUPPORT : 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
CONTINUED
SB 1377
Page
7
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 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.
RJG:kc 5/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED