Bill Text: CA SB1190 | 2017-2018 | Regular Session | Amended
Bill Title: Eugenics Sterilization Compensation Program.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2018-08-16 - August 16 hearing: Held in committee and under submission. [SB1190 Detail]
Download: California-2017-SB1190-Amended.html
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Amended
IN
Assembly
August 06, 2018 |
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Amended
IN
Senate
May 25, 2018 |
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Amended
IN
Senate
April 03, 2018 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Senate Bill | No. 1190 |
| Introduced by Senator Skinner (Principal coauthor: Assembly Member Limón) (Coauthor: Senator Beall) |
February 15, 2018 |
An act to add Chapter 1.5 (commencing with Section 24200) to Division 20 of the Health and Safety Code, and to amend Sections 4514 and 5328 of the Welfare and Institutions Code, relating to victim compensation.
LEGISLATIVE COUNSEL'S DIGEST
SB 1190, as amended, Skinner.
Eugenics Sterilization Compensation Program.
Existing
(1) Existing law prohibits sterilization of a person with developmental disabilities without his or her consent, if he or she has the ability to consent to sterilization, as defined, unless a limited conservator authorized to consent to the sterilization of an adult with a developmental disability is appointed and obtains court authorization to consent to the sterilization, as specified. Existing law prohibits sterilization for the purpose of birth control in county jails and state prison facilities, as
specified.
Existing law provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board from the Restitution Fund, a continuously appropriated fund consisting of General Fund moneys, for specified losses suffered as a result of those crimes. Existing law sets forth eligibility requirements and specified limits on the amount of compensation the board may award, and requires applications for compensation to be verified under penalty of perjury. Under existing law, certain property is exempt from enforcement of money judgments, including benefits from a disability or health insurance policy or program.
This bill would establish the Eugenics Sterilization Compensation Program, to be implemented by the California Victim Compensation Board for the purpose of providing victim compensation to any survivor of state-sponsored sterilization
conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979. The bill would require the board, in consultation with community-based organizations, to conduct outreach to locate any qualified recipient, as defined, notify that person of the process to apply for victim compensation, and review and verify all applications for victim compensation, as specified. The bill would require the board to keep confidential and not disclose to the public any record pertaining to an individual’s application for victim compensation or the board’s verification of the application. The bill would exempt victim compensation payments from, among other things, being considered taxable income for state tax purposes or being subject to enforcement of a money judgment, as specified. The bill would provide that its provisions shall become operative only upon an appropriation to the board expressly identified for the purposes of these provisions.
board, the State Department of State Hospitals, and the State Department of Developmental Services for the purpose of implementing the program. The bill would also require the board and departments to post a notice on its Internet Web site once the appropriation described above is made to inform the public of the operative date of the program.
(2) Existing law provides that information and records obtained in the course of providing specified mental health and developmental services are confidential, but allows the disclosure of the information and records under specified circumstances.
This bill would additionally authorize the State Department of Developmental Services and the
State Department of State Hospitals to disclose the above-described information and records to authorized employees of the board for the purposes of verifying the identity and eligibility of individuals claiming compensation under the Eugenics Sterilization Compensation Program. The bill would require the board to maintain the confidentiality of the information and records received from the departments.
Existing
(3) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies
or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature hereby finds and declares all of the following:(a) In 1909, California passed the nation’s third sterilization law (Chapter 720 of the Statutes of 1909). Between 1909 and 1979, more than 20,000 Californians were sterilized, which made up more than one-third of the 60,000 men and women sterilized nationwide in 32 states during that era and more than the amount of people sterilized in the next top four states combined.
(b) California’s eugenics laws, which were revised in 1913 (Chapter 363 of the Statutes of 1913) and 1917 (Chapters 489 and 776 of the Statutes of 1917),
authorized medical superintendents in state homes and state hospitals to perform “asexualization” on patients (vasectomies for men and salpingectomies for women) identified as “afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeblemindedness, those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature.”
(c) California maintained 12 state homes and state hospitals that housed thousands of patients who were committed by the courts, family members, and medical authorities. Although many families, patients, and court officials signed consent forms for sterilization, that action would not meet today’s criteria for consent because in some institutions sterilization was a precondition for release, and true
voluntariness and autonomy was not possible in the context in which the consent forms were signed.
(d) There was little to no oversight of California’s sterilization program, which was implemented during a time in United States history when many reformers believed that sterilization was an important instrument of public health protection that would reduce the number of “defectives” in society, result in cost savings for welfare programs, and only allow “fit” people to become parents. The authority granted both to state agencies and medical experts during this era meant that sterilization proceeded with little contestation or pushback from the health establishment or legal system.
(e) While the law did not target specific racial or ethnic groups, in practice, labels of “mental
deficiency” and “feeblemindedness” were applied disproportionately to racial and ethnic minorities, people with actual and perceived disabilities, poor people, and women. During the height of the program, between 1919 and 1952, women and girls were 14 percent more likely to be sterilized than men and boys. Male Latino patients were 23 percent more likely to be sterilized than non-Latino male patients, and female Latina patients were 59 percent more likely to be sterilized than non-Latina female patients.
(f) On March 11, 2003, Governor Gray Davis apologized for California’s eugenic sterilization program. Attorney General Bill Lockyer issued an apology on the same day.
(g) On June 30, 2003, the Senate of the State of California passed a resolution expressing “profound regret over the
state’s past role in the eugenics movement and the injustice done to thousands of California men and women,” addressing “past bigotry and intolerance against the persons with disabilities and others who were viewed as ‘genetically unfit’ by the eugenics movement,” recognizing that “all individuals must honor human rights and treat others with respect regardless of race, ethnicity, religious belief, economic status, disability, or illness,” and urging “every citizen of the state to become familiar with the history of the eugenics movement, in the hope that a more educated and tolerant populace will reject any similar abhorrent pseudoscientific movement should it arise in the future.”
(h) While not eligible for victim compensation under the Eugenics Sterilization Compensation Program, the State of California recognizes that further
involuntary and systematic sterilization abuse occurred during the following periods:
(1) Between 1965 and 1975, at least 240 women who delivered babies at the LA County University of Southern California Medical Center were subjected to nonconsensual postpartum tubal ligations. These procedures were carried out overwhelmingly on Mexican-origin mothers who were not informed that they were being sterilized, were coerced into signing sterilization forms, or were misled into giving their signatures.
(2) Between 2006 and 2010, 144 female inmates in the California state prison were sterilized without proper authorization. A state audit found that the women had been sterilized without adherence to required protocol and that “deficiencies in the informed consent process” had occurred
in 39 of these cases. As a response to this, Senate Bill 1135 (Chapter 558 of the Statutes of 2014) was signed into law in 2014, prohibiting sterilizations in the California state prison.
SEC. 2.
Chapter 1.5 (commencing with Section 24200) is added to Division 20 of the Health and Safety Code, to read:CHAPTER 1.5. Eugenics Sterilization Compensation Program
24200.
(a) There is hereby established the Eugenics Sterilization Compensation Program, to be administered by the California Victim Compensation Board.(b) The purpose of the program is to provide victim compensation to any survivor of state-sponsored sterilization conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979.
(c) For purposes of this chapter, the following definitions apply:
(1) “Board” means the California Victim Compensation Board.
(2) “Program” means the Eugenics Sterilization Compensation Program.
(3) “Start date of the program” means the date the program becomes operative pursuant to Section 24202.
(3)
(4) “Qualified recipient” means an individual who is eligible for victim compensation pursuant to this chapter by meeting all of the following requirements:
(A) The individual was sterilized pursuant to
eugenics laws that existed in the State of California between 1909 and 1979.
(B) The individual was sterilized while he or she was a patient at any facility under the control of the State Department of State Hospitals or the State Department of Developmental Services, including any of the following institutions:
(i)Agnews State Hospital.
(i) Agnews Developmental
Center, formerly known as Agnews State Mental Hospital.
(ii) Atascadero State Hospital.
(iii) Camarillo State Hospital. Hospital and Developmental Center.
(iv) DeWitt State Hospital.
(v) Fairview Developmental Center, formerly known as Fairview State Hospital.
(v)
(vi) Mendocino State Hospital.
(vi)
(vii) Modesto State Hospital.
(vii)Napa State Hospital.
(viii)Norwalk State Hospital.
(ix)Pacific Colony.
(x)Patton State Hospital.
(xi)Sonoma State Home.
(xii)Stockton State Hospital.
(viii) Napa State Hospital, formerly known as Napa State Asylum for the Insane.
(ix) Metropolitan State Hospital, formerly known as Norwalk State Hospital.
(x) Frank D. Lanterman State Hospital and Developmental Center, formerly known as Pacific State Hospital or Pacific Colony.
(xi) Patton State Hospital, formerly known as Southern California State Asylum for the Insane and Inebriates.
(xii) Porterville Developmental Center, formerly known as Porterville State Hospital.
(xiii) Sonoma Developmental Center, formerly known as Sonoma State Hospital, Sonoma State Home, or California Home for the Care and Training of the Feeble
Minded.
(xiv) Stockton Developmental Center, formerly known as Stockton State Hospital.
(C) The individual is alive as of January 1, 2019. the start date of the program.
24201.
(a) The(1) Conduct In consultation with community-based organizations, conduct outreach to locate any qualified recipient and notify him or her of the process to apply for victim compensation. The board may use
various methods to conduct outreach, including, but not limited to, modalities such as radio announcements, social media posts, and flyers to libraries, social service agencies, long-term care facilities, group homes, supported living organizations, and regional centers.
(2) Review and verify all applications for victim compensation.
(A) The board shall consult the HIPAA-compliant eugenic sterilization database developed by the Sterilization and Social Justice Lab at the University of Michigan and may consult records of the State Archives to verify the identity of any individual claiming he or she was sterilized during the period of 1919 to 1952, inclusive.
(B) The board shall consult the records of the State Department of State Hospitals and the State Department of Developmental Services to verify the identity of any individual claiming he or she was sterilized during the period of 1953 to 1979, inclusive. The State Department of State Hospitals and the State Department of Developmental Services shall make every effort possible reasonable effort to locate and share with the board any data pertaining to individuals sterilized in state institutions from 1953 to 1979, inclusive.
records that will help the board verify claims of individuals sterilized in state institutions from 1953 to 1979, inclusive. This information shall be provided to the board pursuant to the authorizations described in subdivision (z) of Section 4514 of the Welfare and Institutions Code and paragraph (26) of subdivision (a) of Section 5328 of the Welfare and Institutions Code. The information may include, but is not limited to, documentation of the individual’s sterilization, sterilization recommendation, surgical consent forms, relevant court or institutional records, or a sworn statement by the survivor or another individual with personal knowledge of the sterilization. This data may be contained in documents such as institutional reports, annual reports, extant patient records, superintendents’ files, and administrative records. The board shall maintain the
confidentiality of any information received from the State Department of State Hospitals and the State Department of Developmental Services in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations and Sections 4514 and 5328 of the Welfare and Institutions Code.
(C) The board shall allow a claimant to submit evidence that proves that he or she was sterilized during the period of 1919 to 1979, inclusive. The board shall evaluate this evidence by a preponderance of the evidence standard to determine whether it is more likely than not that the claimant is a qualified recipient. The claimant’s submission of evidence does not relieve the board of its responsibility to verify an individual’s identity by consulting the resources described
in subparagraphs (A) and (B).
(D) The board shall include an area on the application for a claimant to voluntarily report demographic information about gender, race, ethnicity, disability, sexual orientation, and gender identity.
(E) The board does not have the discretion to deny compensation to any claimant who is a qualified recipient.
(3) Oversee the appeal process.
(b) (1) The board shall annually submit a report to the Legislature including the number of applications submitted, the number of applications approved, the number of applications denied, the number of claimants paid, the number of appeals
submitted, the result of those appeals, and the total amount paid in compensation.
(2) The report shall also include data on claimants’ demographic information, including gender, race, ethnicity, disability, sexual orientation, and gender identity, as voluntarily provided on a claimant’s application form. The report shall also include data about the age a claimant was sterilized and the hospital where sterilization occurred, as verified by the department. All demographic information shall be reported in aggregate and the names of individual claimants shall be kept confidential.
(3) The report shall also include data on outreach methods or processes used by the board to reach potential claimants.
(4) The
report shall be submitted in compliance with Section 9795 of the Government Code.
(c) (1) The board shall develop and implement procedures to receive and process applications for victim compensation under this program no later than June 30, 2019. six months after the start date of the program.
(2) The board shall implement the outreach plan described in paragraph (1) of subdivision (b) beginning on July 1, 2019. six months after the start date of the program.
24202.
(a)(2)
(b) The board shall hold any funds appropriated as described in paragraph (1)
to it for the purposes of this chapter in a separate account, and only those funds shall be used only for the program. the purpose of implementing the program.
(b)Any funds appropriated as described in paragraph
(1) of subdivision (a) shall be used as follows:
(1)At least 90 percent of the amount shall be used for the purpose of paying victim compensation to qualified recipients pursuant to Section 24203.
(2)Up to 10 percent of the amount may be used for the purpose of
administering and implementing the program.
24203.
(a) (1) An individual seeking victim compensation pursuant to the program shall submit an application to the board beginning(2) The board shall screen the application and accompanying documentation for completeness. If the board determines that an application is incomplete, it shall notify the claimant or his or her lawfully
authorized representative that the application is not complete in writing by certified mail no later than 30 calendar days following the screening of the application. The notification shall specify the additional documentation required to complete the application. If the application is incomplete, the claimant shall have 60 calendar days from the receipt of the notification to submit the required documentation. If the required documentation is not received within 60 calendar days, the application will be closed and the claimant shall submit a new application if he or she seeks victim compensation pursuant to the program.
(3) The board shall not consider an application or otherwise act on it until the board determines the application is complete with all required documentation.
(4) If a claimant receives an adverse claim decision, the claimant may file an appeal to the board within 30 days of the notice of decision. After receiving the appeal, the board shall again attempt to verify the claimant’s identity pursuant to paragraph (2) of subdivision (a) of Section 24201. If the claimant’s identity cannot be verified, then the claimant shall produce sufficient evidence to establish, by a preponderance of the evidence, that it is more likely than not that he or she is a qualified recipient. This evidence may include, but is not limited to, documentation of the individual’s
sterilization, sterilization recommendation, surgical consent forms, or relevant court or institutional records. records, or a sworn statement by the survivor or another individual with personal knowledge of the sterilization. The board shall make a determination on the appeal within 30 days of the date of the appeal and notify the claimant of the decision. A claimant who is successful in his or her appeal shall receive compensation in accordance with subdivision (b).
(b) The board shall award victim compensation to a qualified recipient pursuant to the following payment schedule:
(1) A claimant who is determined to be a qualified recipient by the board shall receive an initial payment within 60 days of the board’s determination. This initial payment shall be calculated by dividing the funds described in paragraph (1) of subdivision (b) of Section 24202 for victim compensation payments by the anticipated number of qualified recipients as determined by the board, and then dividing that dollar amount in half.
(2) After exhaustion of all appeals arising from the denial of an individual’s application, but by no later than October 1, 2021,
two years and nine months after the start date of the program, the board shall send a final payment to all qualified recipients. This final payment shall be calculated by dividing the remaining balance of funds described in paragraph (1) of subdivision (b) of Section 24202 for victim compensation payments by the total number of qualified recipients.
24204.
(a) A qualified recipient may assign his or her victim compensation to a trust established for his or her benefit.(b) (1) The board shall include a provision on the application for victim compensation under this program that a claimant is authorized to designate a beneficiary for his or her victim compensation.
(2) If the claimant dies during the pendency of his or her application, or after the board determines that he or she is a qualified recipient, the board shall award the victim compensation to the named beneficiary. If the claimant did not name a beneficiary, then the victim
compensation shall remain with the board for expenditure in accordance with subdivision (b) of Section 24203.
(c) An application may be made by an individual’s legally authorized representative if the individual satisfies the criteria for a qualified recipient, as specified in subdivision (c) of Section 24200.
24205.
The board shall keep confidential and not disclose to the public any record pertaining to either an individual’s application for victim compensation or the board’s verification of the application, including, but not limited to, claimant names and demographic information submitted on the application.24206.
(a) Notwithstanding any other law, the payment made to a qualified recipient pursuant to this program shall not be considered any of the following:(1) Taxable income for state tax purposes.
(2) Income or resources for purposes of determining the eligibility for, or amount of, any benefits or assistance under any state or local means-tested program.
(3) Income or resources in determining the eligibility for, or the amount of, any federal public benefits as provided by the Treatment of Certain Payments in Eugenics Compensation Act (42 U.S.C. Sec.
18501).
(4) Community property for the purpose of determining property rights under the Family Code and Probate Code.
(b) Notwithstanding any other law, the payment made to a qualified recipient pursuant to this program shall not be subject to either of the following:
(1) Enforcement of a money judgment under state law.
(2) A money judgment in favor of the State Department of Health Care Services for any period of time in which federal law or guidance has not been issued by the federal Centers for Medicare and Medicaid Services requiring the department to recover funds from the payments pursuant to this chapter for reimbursement of qualifying Medi-Cal
expenditures. Following the death of a qualified recipient, both of the following shall apply as long as the federal law or guidance has not been issued:
(A) The state shall not seek recovery pursuant to Section 14009.5 of the Welfare and Institutions Code of any amount of
the payment under the state’s Medicaid plan established under Title XIX of the Social Security Act.
(B) The state shall not file a claim for the payment under Section 529A(f) of the Internal Revenue Code.
SEC. 3.
Section 4514 of the Welfare and Institutions Code is amended to read:4514.
All information and records obtained in the course of providing intake, assessment, and services under Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100) to persons with developmental disabilities shall be confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients prior to 1969 shall also be confidential. Information and records shall be disclosed only in any of the following cases:(a) In communications between qualified professional persons, whether employed by a regional center or state developmental center, or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a developmental disability, or his or her guardian or conservator, shall be obtained before information or records may be disclosed by regional center or state developmental center personnel to a professional not employed by the regional center or state developmental center, or a program not vendored by a regional center or state developmental center.
(b) When the person with a developmental disability, who has the capacity to give informed consent, designates individuals to whom information or records may be released. This chapter does not compel a physician and surgeon, psychologist, social worker, marriage and family therapist, professional clinical counselor, nurse, attorney, or other professional to reveal information that has been given to him or her in confidence by a family member of the person unless a valid release has been executed by that family member.
(c) To the extent necessary for a claim, or for a claim or application to be made on behalf of a person with a developmental disability for aid, insurance, government benefit, or medical assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor, dependent ward, or conservatee, and his or her parent, guardian, conservator, limited conservator with access to confidential records, or authorized representative, designates, in writing, persons to whom records or information may be disclosed. This chapter does not compel a physician and surgeon, psychologist, social worker, marriage and family therapist, professional clinical counselor, nurse, attorney, or other professional to reveal information that has been given to him or her in confidence by a family member of the person unless a valid release has been executed by that family
member.
(e) For research, if the Director of Developmental Services designates, by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards. These rules shall include, but need not be limited to, the requirement that all researchers shall sign an oath of confidentiality as follows:
“ | |
Date |
As a condition of doing research concerning persons with developmental disabilities who have received services from ____ (fill in the facility, agency, or person), I, ____, agree to obtain the prior informed consent of persons who have received services to the maximum degree possible as determined by the appropriate institutional review board or boards for protection of human subjects reviewing my research, or the person’s parent, guardian, or conservator, and I further agree not to divulge any information obtained in the course of the research to unauthorized persons, and not to publish or otherwise make public any information regarding persons who have received services so those persons who received services are identifiable.
I recognize that the unauthorized release of
confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.
” | |
Signed |
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law
enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.
(h) To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.
(i) To the courts and designated parties as part of a regional center report or assessment in compliance with a statutory or regulatory requirement, including, but not limited to, Section 1827.5 of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code, and Section 6502 of this code.
(j) To the attorney for the person with a developmental disability in any and all proceedings upon presentation of a release of information signed by the person, except that when the person lacks the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or herself of the identity of the attorney, and of the fact that the attorney represents the person, shall release all information and records relating to the person. This article does not compel a physician and surgeon, psychologist, social worker, marriage and family therapist, professional clinical counselor, nurse, attorney, or other professional to reveal information that has been given to him or her in confidence by a family member of the person unless a valid release has been executed by that family member.
(k) Upon written consent by a person with a developmental disability previously or presently receiving services from a regional center or state developmental center, the director of the regional center or state developmental center, or his or her designee, may release any information, except information that has been given in confidence by members of the family of the
person with a developmental disability, requested by a probation officer charged with the evaluation of the person after his or her conviction of a crime if the regional center or state developmental center director or designee determines that the information is relevant to the evaluation. The consent shall only be operative until sentence is passed on the crime for which the person was convicted. The confidential information released pursuant to this subdivision shall be transmitted to the court separately from the probation report and shall not be placed in the probation report. The confidential information shall remain confidential except for purposes of sentencing. After sentencing, the confidential information shall be sealed.
(l) Between persons who are trained and qualified to serve on multidisciplinary personnel teams, as defined in subdivision (d) of Section 18951. The information and records sought to be disclosed shall be
relevant to the prevention, identification, management, or treatment of an abused child and his or her parents pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) When a person with a developmental disability dies from any cause, natural or otherwise, while hospitalized in a state developmental center, the State Department of Developmental Services, the physician and surgeon in charge of the client, or the professional in charge of the facility or his or her designee, shall release the patient’s medical record to a medical examiner, forensic pathologist, or coroner, upon request. Except for the purposes included in paragraph (8) of subdivision (b) of Section 56.10 of the Civil Code, a medical examiner, forensic pathologist, or coroner shall not disclose any information contained in the medical record obtained pursuant to this subdivision without a court order or authorization pursuant to paragraph (4) of
subdivision (c) of Section 56.11 of the Civil Code.
(n) To authorized licensing personnel who are employed by, or who are authorized representatives of, the State Department of Public Health, and who are licensed or registered health professionals, and to authorized legal staff or special investigators who are peace officers who are employed by, or who are authorized representatives of, the State Department of Social Services, as necessary to the performance of their duties to inspect, license, and investigate health facilities and community care facilities, and to ensure that the standards of care and services provided in these facilities are adequate and appropriate and to ascertain compliance with the rules and regulations to which the facility is subject. The confidential information shall remain confidential except for purposes of inspection, licensing, or investigation pursuant to Chapter 2 (commencing with Section 1250) and Chapter 3
(commencing with Section 1500) of Division 2 of the Health and Safety Code, or a criminal, civil, or administrative proceeding in relation thereto. The confidential information may be used by the State Department of Public Health or the State Department of Social Services in a criminal, civil, or administrative proceeding. The confidential information shall be available only to the judge or hearing officer and to the parties to the case. Names that are confidential shall be listed in attachments separate to the general pleadings. The confidential information shall be sealed after the conclusion of the criminal, civil, or administrative hearings, and shall not subsequently be released except in accordance with this subdivision. If the confidential information does not result in a criminal, civil, or administrative proceeding, it shall be sealed after the State Department of Public Health or the State Department of Social Services decides that no further action will be taken in the matter of suspected
licensing violations. Except as otherwise provided in this subdivision, confidential information in the possession of the State Department of Public Health or the State Department of Social Services shall not contain the name of the person with a developmental disability.
(o) To a board that licenses and certifies professionals in the fields of mental health and developmental disabilities pursuant to state law, when the Director of Developmental Services has reasonable cause to believe that there has occurred a violation of a law subject to the jurisdiction of a board and the records are relevant to the violation. The information shall be sealed after a decision is reached in the matter of the suspected violation, and shall not subsequently be released except in accordance with this subdivision. Confidential information in the possession of the board shall not contain the name of the person with a developmental disability.
(p) (1) To governmental law enforcement agencies by the director of a regional center or state developmental center, or his or her designee, when (1) the person with a developmental disability has been reported lost or missing or (2) there is probable cause to believe that a person with a developmental disability has committed, or has been the victim of, murder, manslaughter, mayhem, aggravated mayhem, kidnapping, robbery, carjacking, assault with the intent to commit a felony, arson, extortion, rape, forcible sodomy, forcible oral copulation, assault or battery, or unlawful possession of a weapon, as provided in any provision listed in Section 16590 of the Penal Code.
(2) This subdivision shall be limited solely to information directly relating to the factual circumstances of the commission of the enumerated offenses and shall not include information relating
to the mental state of the patient or the circumstances of his or her treatment unless relevant to the crime involved.
(3) This subdivision is not an exception to, and does not in any other way affect, the provisions of Article 7 (commencing with Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or Chapter 11 (commencing with Section 15600) and Chapter 13 (commencing with Section 15750) of Part 3 of Division 9.
(q) To the Division of Juvenile Facilities and Department of Corrections and Rehabilitation or any component thereof, as necessary to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed pursuant to either Section 11164 of the Penal Code or Section 15630 of this code for the purposes of either a mandated or voluntary report or when those agencies request
information in the course of conducting their investigation.
(s) When a person with a developmental disability, or the parent, guardian, or conservator of a person with a developmental disability who lacks capacity to consent, fails to grant or deny a request by a regional center or state developmental center to release information or records relating to the person with a developmental disability within a reasonable period of time, the director of the regional or developmental center, or his or her designee, may release information or records on behalf of that person if both of the following conditions are met:
(1) Release of the information or records is deemed necessary to protect the person’s health, safety, or welfare.
(2) The person, or the person’s parent, guardian, or conservator, has been advised annually in
writing of the policy of the regional center or state developmental center for release of confidential client information or records when the person with developmental disabilities, or the person’s parent, guardian, or conservator, fails to respond to a request for release of the information or records within a reasonable period of time. A statement of policy contained in the client’s individual program plan shall be deemed to comply with the notice requirement of this paragraph.
(t) (1) When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, the following information and records may be released:
(A) All information and records that the appointing authority relied upon in issuing the notice of adverse action.
(B) All other information and
records that are relevant to the adverse action, or that would constitute relevant evidence as defined in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the consumer and the consumer’s legal representative or, if the consumer has no legal representative or if the legal representative is a state agency, to the clients’ rights advocate, and the consumer, the consumer’s legal representative, or the clients’ rights advocate has not objected in writing to the appointing authority within five business days of receipt of the notice, or the appointing authority, upon review of the objection has determined that the circumstances on which the adverse action is based are egregious or threaten the health, safety, or life of
the consumer or other consumers and without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse action has been taken, and the person’s representative, if any, have entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information or records for any purpose other than the proceedings for which the information or records were requested or provided.
(II) Requires the employee and the employee’s legal representative to return to the appointing authority all records provided to them under this subdivision, including, but not limited to, all records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representative because they were from
a source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents submitted to the administrative tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the administrative tribunal with jurisdiction over the adverse action at the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel Board may, prior to an appeal from adverse action being filed with it, issue a protective order, upon application by the appointing authority, for the limited purpose of prohibiting the parties from disclosing or using information or records for any purpose other than the proceeding for which the information or records were requested or
provided, and to require the employee or the employee’s legal representative to return to the appointing authority all records provided to them under this subdivision, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents that are no longer in the possession of the employee or the employee’s legal representatives because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(3) Individual identifiers, including, but not limited to, names, social security numbers, and hospital numbers, that are not necessary for the prosecution or defense of the adverse action, shall not be disclosed.
(4) All
records, documents, or other materials containing confidential information protected by this section that have been submitted or otherwise disclosed to the administrative agency or other person as a component of an appeal from an adverse action shall, upon proper motion by the appointing authority to the administrative tribunal, be placed under administrative seal and shall not, thereafter, be subject to disclosure to any person or entity except upon the issuance of an order of a court of competent jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes final when the employee fails to answer within the time specified in Section 19575 of the Government Code, or, after filing an answer, withdraws the appeal, or, upon exhaustion of the administrative appeal or of the judicial review remedies as otherwise provided by law.
(u) To the person appointed as the
developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or 726.
(v) To a protection and advocacy agency established pursuant to Section 4901, to the extent that the information is incorporated within any of the following:
(1) An unredacted facility evaluation report form or an unredacted complaint investigation report form of the State Department of Social Services. This information shall remain confidential and subject to the confidentiality requirements of subdivision (f) of Section 4903.
(2) An unredacted citation report, unredacted licensing report, unredacted survey report, unredacted plan of correction, or unredacted statement of deficiency of the State Department of Public Health, 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.
(w) To the regional center clients’ rights advocate who provides service pursuant to Section 4433, unless the consumer objects on his or her own behalf, for the purpose of providing authorized clients’ rights advocacy services pursuant to Section 4418.25 or 4418.7, subparagraph (B) or (C) of paragraph (9) of subdivision (a) of Section 4648, Sections 4684.80 to 4684.87, inclusive, or Section 4698 or 7502.5 of this code, or Section 1267.75 or 1531.15 of the Health and Safety Code.
(x) For purposes of this section, a reference to a “medical examiner, forensic pathologist, or coroner” means a coroner or deputy coroner, as described in subdivision (c) of Section 830.35 of the Penal Code, or a licensed physician who currently performs official
autopsies on behalf of a county coroner’s office or a medical examiner’s office, whether as a government employee or under contract to that office.
(y) To authorized personnel who are employed by the Employment Development Department as necessary to enable the Employment Development Department to provide the information required to be disclosed to the State Department of Developmental Services pursuant to subdivision (ak) of Section 1095 of the Unemployment Insurance Code. The Employment Development Department shall maintain the confidentiality of information provided to it by the Department of Developmental Services to the same extent as if the Employment Development Department had acquired the information directly.
(z) To authorized personnel who are employed by the California Victim Compensation
Board for the purposes of verifying the identity and eligibility of individuals claiming compensation pursuant to the Eugenics Sterilization Compensation Program described in Chapter 1.5 (commencing with Section 24200) of Division 20 of the Health and Safety Code. The board shall maintain the confidentiality of any information or records received from the department in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations and this section.
SEC. 4.
Section 5328 of the Welfare and Institutions Code is amended to read:5328.
(a) All information and records obtained in the course of providing services under Division 4 (commencing with Section 4000), Division 4.1 (commencing with Section 4400), Division 4.5 (commencing with Section 4500), Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7100), to either voluntary or involuntary recipients of services shall be confidential. Information and records obtained in the course of providing similar services to either voluntary or involuntary recipients prior to 1969 shall also be confidential. Information and records shall be disclosed only in any of the following cases:(1) In communications between qualified professional persons in the provision of services or
appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his or her guardian or conservator, shall be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical or psychological responsibility for the patient’s care.
(2) When the patient, with the approval of the physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, or licensed professional clinical counselor, who is in charge of the patient, designates persons to whom information or records may be released, except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse,
attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family. This paragraph does not authorize a licensed marriage and family therapist or licensed professional clinical counselor to provide services or to be in charge of a patient’s care beyond his or her lawful scope of practice.
(3) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he or she may be entitled.
(4) If the recipient of services is a minor, ward, dependent, or conservatee, and his or her parent, guardian, guardian ad litem, conservator, or authorized representative designates, in writing, persons to whom records or information may be disclosed, except that this article does not compel a physician and surgeon, licensed
psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
(5) For research, provided that the Director of Health Care Services, the Director of State Hospitals, the Director of Social Services, or the Director of Developmental Services designates by regulation, rules for the conduct of research and requires the research to be first reviewed by the appropriate institutional review board or boards. The rules shall include, but need not be limited to, the requirement that all researchers shall sign an oath of confidentiality as follows:
Date |
As a condition of doing research concerning persons who have received services from ____ (fill in the facility, agency or person), I, ____, agree to obtain the prior informed consent of such persons who have received services to the maximum degree possible as determined by the appropriate institutional review board or boards for protection of human subjects reviewing my research, and I further agree not to divulge any information obtained in the course of such research to unauthorized persons, and not to publish or otherwise make public any information
regarding persons who have received services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential information may make me subject to a civil action under provisions of the Welfare and Institutions Code.
(6) To the courts, as necessary to the administration of justice.
(7) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.
(8) To the Senate Committee on Rules or the Assembly Committee on Rules for the purposes of legislative investigation authorized by the committee.
(9) If the recipient of services who applies for
life or disability insurance designates in writing the insurer to which records or information may be disclosed.
(10) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign the release, the staff of the facility, upon satisfying itself of the identity of the attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that this article does not compel a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, attorney, or other professional person to reveal information that has been given to him or her in confidence by members of a patient’s family.
(11) Upon written agreement by a person previously confined in or otherwise treated by a facility, the professional person in charge of the facility or his or her designee may release any information, except information that has been given in confidence by members of the person’s family, requested by a probation officer charged with the evaluation of the person after his or her conviction of a crime if the professional person in charge of the facility determines that the information is relevant to the evaluation. The agreement shall only be operative until sentence is passed on the crime of which the person was convicted. The confidential information released pursuant to this paragraph shall be transmitted to the court separately from the probation report and shall not be placed in the probation report. The confidential information shall remain confidential except for purposes of sentencing. After sentencing, the confidential information shall be sealed.
(12) (A) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to subdivision (d) of Section 18951. The information and records sought to be disclosed shall be relevant to the provision of child welfare services or the investigation, prevention, identification, management, or treatment of child abuse or neglect pursuant to Chapter 11 (commencing with Section 18950) of Part 6 of Division 9. Information obtained pursuant to this paragraph shall not be used in any criminal or delinquency proceeding. This paragraph does not prohibit evidence identical to that contained within the records from being admissible in a criminal or delinquency proceeding, if the evidence is derived solely from means other than this paragraph, as permitted by law.
(B) As used in this paragraph, “child welfare services” means those services that
are directed at preventing child abuse or neglect.
(13) To county patients’ rights advocates who have been given knowing voluntary authorization by a client or a guardian ad litem. The client or guardian ad litem, whoever entered into the agreement, may revoke the authorization at any time, either in writing or by oral declaration to an approved advocate.
(14) To a committee established in compliance with Section 14725.
(15) In providing information as described in Section 7325.5. This paragraph does not permit the release of any information other than that described in Section 7325.5.
(16) To the county behavioral health director or the director’s designee, or to a law enforcement officer, or to the person designated by a law enforcement agency,
pursuant to Sections 5152.1 and 5250.1.
(17) If the patient gives his or her consent, information specifically pertaining to the existence of genetically handicapping conditions, as defined in Section 125135 of the Health and Safety Code, may be released to qualified professional persons for purposes of genetic counseling for blood relatives upon request of the blood relative. For purposes of this paragraph, “qualified professional persons” means those persons with the qualifications necessary to carry out the genetic counseling duties under this paragraph as determined by the genetic disease unit established in the State Department of Health Care Services under Section 125000 of the Health and Safety Code. If the patient does not respond or cannot respond to a request for permission to release information pursuant to this paragraph after reasonable attempts have been made over a two-week period to get a response, the information may be
released upon request of the blood relative.
(18) When the patient, in the opinion of his or her psychotherapist, presents a serious danger of violence to a reasonably foreseeable victim or victims, then any of the information or records specified in this section may be released to that person or persons and to law enforcement agencies and county child welfare agencies as the psychotherapist determines is needed for the protection of that person or persons. For purposes of this paragraph, “psychotherapist” has the same meaning as provided in Section 1010 of the Evidence Code.
(19) (A) To the designated officer of an emergency response employee, and from that designated officer to an emergency response employee regarding possible exposure to HIV or AIDS, but only to the extent necessary to comply with the federal Ryan White Comprehensive AIDS Resources
Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(B) For purposes of this paragraph, “designated officer” and “emergency response employee” have the same meaning as these terms are used in the federal Ryan White Comprehensive AIDS Resources Emergency Act of 1990 (Public Law 101-381; 42 U.S.C. Sec. 201).
(C) The designated officer shall be subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV results. Further, the designated officer shall inform the exposed emergency response employee that the employee is also subject to the confidentiality requirements specified in Section 120980, and may be personally liable for unauthorized release of any identifying information about the HIV test results.
(20) (A) To a law enforcement officer who personally lodges with a facility, as defined in subparagraph (B), a warrant of arrest or an abstract of a warrant showing that the person sought is wanted for a serious felony, as defined in Section 1192.7 of the Penal Code, or a violent felony, as defined in Section 667.5 of the Penal Code. The information sought and released shall be limited to whether or not the person named in the arrest warrant is presently confined in the facility. This subparagraph shall be implemented with minimum disruption to health facility operations and patients, in accordance with Section 5212. If the law enforcement officer is informed that the person named in the warrant is confined in the facility, the officer may not enter the facility to arrest the person without obtaining a valid search warrant or the permission of staff of the facility.
(B) For purposes of subparagraph (A), a
facility means all of the following:
(i) A state hospital, as defined in Section 4001.
(ii) A general acute care hospital, as defined in subdivision (a) of Section 1250 of the Health and Safety Code, solely with regard to information pertaining to a person with mental illness subject to this section.
(iii) An acute psychiatric hospital, as defined in subdivision (b) of Section 1250 of the Health and Safety Code.
(iv) A psychiatric health facility, as described in Section 1250.2 of the Health and Safety Code.
(v) A mental health rehabilitation center, as described in Section 5675.
(vi) A skilled nursing facility with a special
treatment program for individuals with mental illness, as described in Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the California Code of Regulations.
(21) Between persons who are trained and qualified to serve on multidisciplinary personnel teams pursuant to Section 15610.55, 15753.5, or 15761. The information and records sought to be disclosed shall be relevant to the prevention, identification, management, or treatment of an abused elder or dependent adult pursuant to Chapter 13 (commencing with Section 15750) of Part 3 of Division 9.
(22) (A) When an employee is served with a notice of adverse action, as defined in Section 19570 of the Government Code, all of the following information and records may be released:
(i) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(ii) All other information and records that are relevant to the adverse action, or that would constitute relevant evidence as defined in Section 210 of the Evidence Code.
(iii) The information described in clauses (i) and (ii) may be released only if both of the following conditions are met:
(I) The appointing authority has provided written notice to the consumer and the consumer’s legal representative or, if the consumer has no legal representative or if the legal representative is a state agency, to the clients’ rights advocate, and the consumer, the consumer’s legal representative, or the clients’ rights advocate has not objected in writing to the appointing authority within five business days of receipt of the notice, or the appointing authority, upon review of
the objection has determined that the circumstances on which the adverse action is based are egregious or threaten the health, safety, or life of the consumer or other consumers and without the information the adverse action could not be taken.
(II) The appointing authority, the person against whom the adverse action has been taken, and the person’s representative, if any, have entered into a stipulation that does all of the following:
(ia) Prohibits the parties from disclosing or using the information or records for any purpose other than the proceedings for which the information or records were requested or provided.
(ib) Requires the employee and the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records
and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representative because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(ic) Requires the parties to submit the stipulation to the administrative tribunal with jurisdiction over the adverse action at the earliest possible opportunity.
(B) For the purposes of this paragraph, the State Personnel Board may, prior to any appeal from adverse action being filed with it, issue a protective order, upon application by the appointing authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than the proceeding for which the information or records were requested or provided, and to require the employee or the employee’s legal representative to return to the appointing authority all records provided to them under this paragraph, including, but not limited to, all records and documents from any source containing confidential information protected by this section, and all copies of those records and documents, within 10 days of the date that the adverse action becomes final, except for the actual records and documents or copies thereof that are no longer in the possession of the employee or the employee’s legal representatives because they were submitted to the administrative tribunal as a component of an appeal from the adverse action.
(C) Individual identifiers, including, but not limited to, names, social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be disclosed.
(D) All records, documents, or other materials containing confidential information protected by this section that have been submitted or otherwise disclosed to the administrative agency or other person as a component of an appeal from an adverse action shall, upon proper motion by the appointing authority to the administrative tribunal, be placed under administrative seal and shall not, thereafter, be subject to disclosure to any person or entity except upon the issuance of an order of a court of competent jurisdiction.
(E) For purposes of this paragraph, an adverse action becomes final when the employee fails to answer within the time specified in Section 19575 of the Government Code, or, after filing an answer, withdraws the appeal, or, upon exhaustion of the administrative appeal or of the judicial
review remedies as otherwise provided by law.
(23) To the person appointed as the developmental services decisionmaker for a minor, dependent, or ward pursuant to Section 319, 361, or 726.
(24) During the provision of emergency services and care, as defined in Section 1317.1 of the Health and Safety Code, the communication of patient information between a physician and surgeon, licensed psychologist, social worker with a master’s degree in social work, licensed marriage and family therapist, licensed professional clinical counselor, nurse, emergency medical personnel at the scene of an emergency or in an emergency medical transport vehicle, or other professional person or emergency medical personnel at a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.
(25) To a business associate or for health care operations purposes, in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations.
(26) To authorized personnel who are employed by the California Victim Compensation Board for the purposes of verifying the identity and eligibility of individuals claiming compensation pursuant to the Eugenics Sterilization Compensation Program described in Chapter 1.5 (commencing with Section 24200) of Division 20 of the Health and Safety Code. The board shall maintain the confidentiality of any information or records received from the department in accordance with Part 160 (commencing with Section 160.101) and Part 164 (commencing with Section 164.102) of Subchapter C of Subtitle A of Title 45 of
the Code of Federal Regulations and this section.
(b) The amendment of paragraph (4) of subdivision (a) enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.
(c) This section is not limited by Section 5150.05 or 5332.
SEC. 3.SEC. 5.
The Legislature finds and declares that Section 2 of this act, which adds Section 24205 to the Health and Safety Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:This act strikes an appropriate balance between the public’s right to access information and the need to protect personal information of survivors of state-sponsored sterilization conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979.
