BILL ANALYSIS �
SB 1377
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1377 (Corbett) - As Amended: April 19, 2012
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : PROTECTION AND ADVOCACY AGENCIES
KEY ISSUE : SHOULD THE RIGHTS OF A PROTECTION AND ADVOCACY
AGENCY TO REVIEW REPORTS OF ABUSE AND NEGLECT OF INDIVIDUALS
WITH DEVELOPMENT AND MENTAL HEALTH DISABILITIES BE CLARIFIED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
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, and 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 non-controversial 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.
SUMMARY : Clarifies the role and information available to the
state-designated protection and advocacy agency. Specifically,
this bill :
1)Provides that the authority of the P&A agency 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,
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or service serving an individual with a disability, and
provides that the information obtained in those records is
subject to the confidentiality requirements of Section 4903(f)
of the Welfare and Institutions Code.
2)Adds to the enumerated exceptions of existing law that the
information and records otherwise subject to certain
confidentiality requirements 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.
3)Deletes obsolete and inapplicable references.
EXISTING LAW :
1)Pursuant to 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. Sec. 15041 et seq.; PAIMI Act, 42 U.S.C. Sec. 10801
et seq.; and PAIR Act, 29 U.S.C. Sec. 794e.)
2)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. (Welf. & Inst. Code Sec. 4901.)
3)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).)
4)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
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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).)
5)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).)
6)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).)
7)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).)
8)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. (Welf. & Inst. Code Sec.
4903(e).)
9)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
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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).)
10)Requires the P&A agency to inform and train employees as
appropriate regarding the confidentiality of client records.
(Welf. & Inst. Code Sec. 4903(g).)
11)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).)
12)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. (Welf. & Inst. Code Sec.
4514(a)-(u).)
COMMENTS : 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.
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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
receive reports from DPH in the usual unredacted for.
This extra step is unnecessary and unwarranted, supporters
state. 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.
Background Regarding Role of Protection and Advocacy
Organizations. 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 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 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
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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.
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
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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. 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. The last 10 records requested
took an average of 24 days, and five of these took 45 days.
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.
Existing law arguably gives 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 add useful clarity and expedite
the process in the interest of these persons with disabilities
who are affected by delays in access to 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. 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform
California Association of Public Authorities for IHSS
Disability Rights Education and Defense Fund, Inc.
SB 1377
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The Arc and United Cerebral Palsy in California
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334