BILL ANALYSIS �
SB 1377
Page 1
SENATE THIRD READING
SB 1377 (Corbett)
As Amended August 20, 2012
Majority vote.
SENATE VOTE :37-0
JUDICIARY 10-0 HUMAN SERVICES 6-0
-----------------------------------------------------------------
|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Beall, Jones, Ammiano, |
| |Dickinson, Gorell, Huber, | |Grove, Hall, Portantino |
| |Jones, Monning, | | |
| |Wieckowski, Chesbro | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
APPROPRIATIONS 17-0
-----------------------------------------------------------------
|Ayes:|Fuentes, Harkey, | | |
| |Blumenfield, Bradford, | | |
| |Charles Calderon, Campos, | | |
| |Davis, Donnelly, Gatto, | | |
| |Hall, Hill, Lara, | | |
| |Mitchell, Nielsen, Norby, | | |
| |Solorio, Wagner | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
-----------------------------------------------------------------
SUMMARY : Clarifies the role of and information available to the
state-designated protection and advocacy (P&A) 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, or service serving an individual with a disability,
and provides that the information obtained in those records is
subject to the confidentiality requirements of the Welfare and
Institutions (W&I) Code Section 4903(f).
2)Adds to the enumerated exceptions of existing law that the
SB 1377
Page 2
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: an unredacted
facility evaluation report form, an unredacted Department of
Social Services (DSS) complaint report form, 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, costs associated with this legislation should be
minor and absorbable within existing resources.
COMMENTS :
Background regarding role of P&A agencies : The Protection and
Advocacy System comprises the nationwide network of
congressionally mandated, legally based disability rights
agencies. A P&A agency exists in every U.S. state and
territory. In 1978, Protection & Advocacy, Inc. (since renamed
Disability Rights California (DRC)) was designated as
California's P&A agency. Initially, the P&As served people with
developmental disabilities, pursuant to the federal
Developmental Disabilities Assistance and Bill of Rights Act
(PADD Act). Since then, the P&As' federal mandates have
expanded to include other people with disabilities, including
psychiatric, physical, sensory, and learning disabilities.
The required authority of P&A agencies is set forth in various
federal statutes and regulations pertaining to the respective
disability populations served by the P&As and the various
programs under which they operate. In 1991, the California
Legislature enacted SB 1088 (McCorquodale), Chapter 534,
Statutes of 1991, which added Division 4.7 to the W&I Code, and
amended other, related provisions, setting out the authority of
the state's P&A agency in accord with federal law. These
statutes were amended in 2003 to conform to changes to federal
laws and regulations governing P&A agencies, including
amendments that expanded the availability of P&A services to
persons with all disabilities as defined in the federal
Americans with Disabilities Act and the state Fair Employment
SB 1377
Page 3
and Housing Act. (SB 577 (Kuehl), Chapter 878, Statutes of
2003.)
Under federal law, the P&A agencies must have authority to
investigate incidents of abuse or neglect of people with
disabilities; pursue administrative, legal, and other remedies
and approaches on behalf of people with disabilities; provide
information and training on the legal and service rights of
people with disabilities; have access to facilities, programs,
services, and the individuals with disabilities receiving such
services in those facilities and programs; and, have access to
records pertaining to people with disabilities under specified
conditions. All P&As maintain a presence in facilities that
care for people with disabilities, where they monitor,
investigate and attempt to remedy adverse conditions. These
agencies also devote considerable resources to ensuring full
access to inclusive educational programs, financial
entitlements, healthcare, accessible housing and productive
employment opportunities. State law likewise specifies that, in
order to fulfill its investigatory authority, the P&A agency
shall have access to relevant records, as specified. See, e.g.,
W&I Code Sections 4902(a)(1), 4903(b).
Need for this 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
�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] 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 Section
SB 1377
Page 4
4514) and mental health disabilities (W&I Code Section 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 form.
This extra step is unnecessary and unwarranted, supporters
state. California law (W&I Code Section 4903) already requires
the P&A agencies to maintain the confidentiality of this
information and the right to P&As 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.
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. This 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 W&I Code
Section 4903. This bill would require that the P&A agency have
SB 1377
Page 5
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, DRC: "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, DRC and the author of this bill comment that in recent
years a DPH 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 DPH
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 (W&I Code Sections 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.
SB 1377
Page 6
Federal case law also cautions against the imposition of
restrictions on P&A access that would impair the P&A agency's
ability to conduct timely investigations. In Iowa Protection
and Advocacy Services, Inc. v. Rasmussen, 206 F.R.D. 630, 2001
WL 1809404 (S.D. Iowa 2002), for example, the court held that
Congress, in enacting the Protection and Advocacy for
Individuals with Mental Illness (PAIMI) and PADD Acts, "occupied
the field" with respect to rules concerning disclosure of
investigatory information. "Protection and advocacy systems are
established as independent checks on state care and regulation
of care of dependent adults. That independent check would
become meaningless if a state was allowed to simply legislate
away a protection and advocacy system's power to investigate by
enacting restrictions." Id. at 639.
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 provide that the confidentiality of
any information obtained in those reports must be maintained by
the P&A agency as specified under existing law.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
FN: 0005081