Tuesday, June 23, 2009

CALIFORNIA CODES-WELFARE AND INSTITUTIONS CODE SECTION 4900-4906

CALIFORNIA CODES
WELFARE AND INSTITUTIONS CODE
SECTION 4900-4906


4900. (a) The definitions contained in this section shall govern
the construction of this division, unless the context requires
otherwise. These definitions shall not be construed to alter or
impact the definitions or other provisions of the Elder and Dependent
Adult Civil Protection Act (Chapter 11 (commencing with Section
15600), or Chapter 13 (commencing with Section 15750), of Part 3 of
Division 9.
(b) "Abuse" means an act, or failure to act, that would constitute
abuse as that term is defined in federal regulations pertaining to
the authority of protection and advocacy agencies, including Section
51.2 of Title 42 of the Code of Federal Regulations or Section
1386.19 of Title 45 of the Code of Federal Regulations. "Abuse" also
means an act, or failure to act, that would constitute abuse as that
term is defined in Section 15610.07 of the Welfare and Institutions
Code or Section 11165.6 of the Penal Code.
(c) "Complaint" has the same meaning as "complaint" as defined in
federal statutes and regulations pertaining to the authority of
protection and advocacy agencies, including Section 10802(1) of Title
42 of the United States Code, Section 51.2 of Title 42 of the Code
of Federal Regulations, or Section 1386.19 of Title 45 of the Code of
Federal Regulations.
(d) "Disability" means a developmental disability, as defined in
Section 15002(8) of Title 42 of the United States Code, a mental
illness, as defined in Section 10802(4) of Title 42 of the United
States Code, a disability within the meaning of the Americans with
Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), as defined
in Section 12102(2) of Title 42 of the United States Code, or a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(e) "Facility" or "program" means a public or private facility or
program providing services, support, care, or treatment to persons
with disabilities, even if only on an as-needed basis or under
contractual arrangement. "Facility" or "program" includes, but is
not limited to, a hospital, a long-term health care facility, a
community living arrangement for people with disabilities, including
a group home, a board and care home, an individual residence or
apartment of a person with a disability where services are provided,
a day program, a juvenile detention facility, a homeless shelter, a
jail, or a prison, including all general areas, as well as special,
mental health, or forensic units. The term includes any facility
licensed under Division 2 (commencing with Section 1200) of the
Health and Safety Code and any facility that is unlicensed but is not
exempt from licensure as provided in subdivision (a) of Section
1503.5 of the Health and Safety Code. The term also includes a
public or private school or other institution or program providing
education, training, habilitation, therapeutic, or residential
services to persons with disabilities.
(f) "Legal guardian," "conservator," or "legal representative,"
means a person appointed by a state court or agency empowered under
state law to appoint and review the legal guardian, conservator, or
legal representative, as appropriate. With respect to an individual
described under paragraph (2) of subdivision (i), this person is one
who has the legal authority to consent to health or mental health
care or treatment on behalf of the individual. With respect to an
individual described under paragraphs (1) or (3) of subdivision (i),
this person is one who has the legal authority to make all decisions
on behalf of the individual. These terms include the parent of a
minor who has legal custody of the minor. These terms do not include
a person acting solely as a representative payee, a person acting
solely to handle financial matters, an attorney or other person
acting on behalf of an individual with a disability solely in
individual legal matters, or an official or his or her designee who
is responsible for the provision of treatment or services to an
individual with a disability.
(g) "Neglect" means a negligent act, or omission to act, that
would constitute neglect as that term is defined in federal statutes
and regulations pertaining to the authority of protection and
advocacy agencies, including Section 10802(5) of Title 42 of the
United States Code, Section 51.2 of Title 42 of the Code of Federal
Regulations, or Section 1386.19 of Title 45 of the Code of Federal
Regulations. "Neglect" also means a negligent act, or omission to
act, that would constitute neglect as that term is defined in
subdivision (b) of Section 15610.07 of the Welfare and Institutions
Code or Section 11165.2 of the Penal Code.
(h) "Probable cause" to believe that an individual has been
subject to abuse or neglect, or is at significant risk of being
subjected to abuse or neglect, exists when the protection and
advocacy agency determines that it is objectively reasonable for a
person to entertain that belief. The individual making a probable
cause determination may base the decision on reasonable inferences
drawn from his or her experience or training regarding similar
incidents, conditions, or problems that are usually associated with
abuse or neglect. Information supporting a probable cause
determination may result from monitoring or other activities,
including, but not limited to, media reports and newspaper articles.
(i) "Protection and advocacy agency" means the private nonprofit
corporation designated by the Governor in this state pursuant to
federal law for the protection and advocacy of the rights of persons
with disabilities, including the following:
(1) People with developmental disabilities, as authorized under
the federal Developmental Disabilities Assistance and Bill of Rights
Act of 2000, contained in Chapter 144 (commencing with Section 15001)
of Title 42 of the United States Code.
(2) People with mental illness, as authorized under the federal
Protection and Advocacy for Mentally Ill Individuals Amendments Act
of 1991, contained in Chapter 114 (commencing with Section 10801) of
Title 42 of the United States Code.
(3) People with disabilities within the meaning of the Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) as
defined in Section 12102(2) of Title 42 of the United States Code,
who do not have a developmental disability as defined in Section
15002(8) of Title 42 of the United States Code, people with a mental
illness as defined in Section 10802(4) of Title 42 of the United
States Code, and who are receiving services under the federal
Protection and Advocacy of Individual Rights Act as defined in
Section 794e of Title 29 of the United States Code, or people with a
disability within the meaning of the California Fair Employment and
Housing Act (Part 2.8 (commencing with Section 12900) of Division 3
of Title 2 of the Government Code), as defined in subdivision (i) or
(k) of Section 12926 of the Government Code.
(j) "Reasonable unaccompanied access" means access that permits
the protection and advocacy agency, without undue interference, to
monitor, inspect, and observe conditions in facilities and programs,
to meet and communicate with residents and service recipients
privately and confidentially on a regular basis, formally or
informally, by telephone, mail, electronic mail, and in person, and
to review records privately and confidentially, in a manner that
minimizes interference with the activities of the program or service,
that respects residents' privacy interests and honors a resident's
request to terminate an interview, and that does not jeopardize the
physical health or safety of facility or program staff, residents,
service recipients, or protection and advocacy agency staff.

4901. (a) The protection and advocacy agency, for purposes of this
division, shall be a private nonprofit corporation and shall meet all
of the requirements of federal law applicable to protection and
advocacy systems, including, but not limited to, the requirement that
it establish a grievance procedure for clients or prospective
clients of the system to ensure that people with disabilities have
full access to services of the system.
(b) State officers and employees, in taking any action relating to
the protection and advocacy agency, shall meet the requirements of
federal law applicable to protection and advocacy systems.
(c) The authority of the protection and advocacy agency set forth
in this division shall not diminish the authority of the protection
and advocacy agency under federal statutes pertaining to the
authority of protection and advocacy systems, or under federal rules
and regulations adopted in implementation of those statutes.
(d) Nothing in this division shall be construed to supplant the
jurisdiction or the responsibilities of adult protective services
programs pursuant to Chapter 11 (commencing with Section 15600), or
Chapter 13 (commencing with Section 15750), of Part 3 of Division 9.
(e) (1) Nothing in this division shall be construed to supplant
the duties or authority of the State Long-Term Care Ombudsman Program
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The protection and advocacy agency shall cooperate with the
Office of the State Long-Term Care Ombudsman when appropriate, as
provided in Section 9717.
(f) (1) Nothing in this division shall be construed to alter or
impact the Elder and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600), or Chapter 13 (commencing with
Section 15750), of Part 3 of Division 9, including the
confidentiality requirements of Section 15633 and the legal
responsibility of the protection and advocacy agency to report elder
or dependent adult abuse or neglect as required by paragraph (1) of
subdivision (b) of Section 15630.
(2) The adult protective services agency shall retain the
responsibility to investigate any report of abuse or neglect in
accordance with Chapter 13 (commencing with Section 15750) of Part 3
of Division 9 when the reported abuse or neglect is within the
jurisdiction of the adult protective services agency.

4902. (a) The protection and advocacy agency, in protecting and
advocating for the rights of people with disabilities, pursuant to
the federal mandate, may do all of the following:
(1) Investigate any incident of abuse or neglect of any person
with a disability if the incident is reported to the protection and
advocacy agency or if the protection and advocacy agency determines
there is probable cause to believe the abuse or neglect occurred.
This 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.
(2) Pursue administrative, legal, and other appropriate remedies
or approaches to ensure the protection of the rights of people with
disabilities.
(3) Provide information and training on, and referral to, programs
and services addressing the needs of people with disabilities,
including information and training regarding individual rights and
the services available from the protection and advocacy agency.
(b) The protection and advocacy agency shall, in addition, have
reasonable access to facilities or programs in the state that provide
care and treatment to people with disabilities, and access to those
persons.
(1) The protection and advocacy agency shall have reasonable
unaccompanied access to public or private facilities, programs, and
services, and to recipients of services therein, at all times as are
necessary to investigate incidents of abuse and neglect in accord
with paragraph (1) of subdivision (a). Access shall be afforded,
upon request, to the agency when any of the following has occurred:
(A) An incident is reported or a complaint is made to the agency.
(B) The agency determines there is probable cause to believe that
an incident has or may have occurred.
(C) The agency determines that there is or may be imminent danger
of serious abuse or neglect of an individual with a disability.
(2) The protection and advocacy agency shall have reasonable
unaccompanied access to public and private facilities, programs, and
services, and recipients of services therein during normal working
hours and visiting hours for other advocacy services. In the case of
information and training services, access shall be at times mutually
agreeable to the protection and advocacy agency and facility
management. This access shall be for the purpose of any of the
following:
(A) Providing information and training on, and referral to
programs addressing the needs of, individuals with disabilities, and
information and training on individual rights and the protection and
advocacy services available from the agency, including, but not
limited to, the name, address, and telephone number of the protection
and advocacy agency.
(B) Monitoring compliance with respect to the rights and safety of
residents or service recipients.
(C) Inspecting, viewing, and photographing all areas of the
facility or program that are used by residents or service recipients,
or that are accessible to them.
(c) If the protection and advocacy agency's access to facilities,
programs, service recipients, residents, or records covered by this
division is delayed or denied by a facility, program, or service, the
facility, program, or service shall promptly provide the agency with
a written statement of reasons. In the case of denial of access for
alleged lack of authorization, the facility, program, or service
shall promptly provide to the agency the name, address, and telephone
number of the legal guardian, conservator, or other legal
representative of the individual with a disability for whom
authorization is required. Access to a facility, program, service
recipient, resident, or to records, shall not be delayed or denied
without the prompt provision of a written statement of the reasons
for the denial.
(d) The protection and advocacy agency may not enter an individual
residence or apartment of a client or his or her family without the
consent of an adult occupant. In the absence of this consent, the
protection and advocacy agency may enter only if it has obtained the
legal authority to enforce its access authority pursuant to legal
remedies available under this division or applicable federal law.
(e) A care provider, including, but not limited to, any
individual, state entity, or other organization that is required to
respond to these requests, may charge a reasonable fee to cover the
cost of copying records pursuant to this division that may take into
account the costs incurred by the care provider in locating,
identifying, and making the records available as required pursuant to
this division. Charges for copying records that would otherwise be
available to the protection and advocacy agency or the person with a
disability whose records are requested, under other statutes
providing for access to records, may not exceed any rates for
obtaining copies of the records specified in the applicable
provisions.

4903. (a) The protection and advocacy agency shall have access to
the records of any of the following people with disabilities:
(1) Any person who is a client of the agency, or any person who
has requested assistance from the agency, if that person or the agent
designated by that person, or the legal guardian, conservator, or
other legal representative of that person, has authorized the
protection and advocacy agency to have access to the records and
information. If a person with a disability who is able to authorize
the protection and advocacy agency to access his or her records
expressly denies this access after being informed by the protection
and advocacy agency of his or her right to authorize or deny access,
the protection and advocacy agency may not have access to that person'
s records.
(2) Any person, including any individual who cannot be located, to
whom all of the following conditions apply:
(A) The individual, due to his or her mental or physical
condition, is unable to authorize the protection and advocacy agency
to have access to his or her records.
(B) The individual does not have a legal guardian, conservator, or
other legal representative, or the individual's representative is a
public entity, including the state or one of its political
subdivisions.
(C) The protection and advocacy agency has received a complaint
that the individual has been subject to abuse or neglect, or has
determined that probable cause exists to believe that the individual
has been subject to abuse or neglect.
(3) Any person who is deceased, and for whom the protection and
advocacy agency has received a complaint that the individual had been
subjected to abuse or neglect, or for whom the agency has determined
that probable cause exists to believe that the individual had been
subjected to abuse or neglect.
(4) Any person who has a legal guardian, conservator, or other
legal representative with respect to whom a complaint has been
received by the protection and advocacy agency, or with respect to
whom the protection and advocacy agency has determined that probable
cause exists to believe that the person has been subjected to abuse
or neglect, whenever all of the following conditions exist:
(A) The representative has been contacted by the protection and
advocacy agency upon receipt of the representative's name and
address.
(B) The protection and advocacy agency has offered assistance to
the representatives to resolve the situation.
(C) The representative has failed or refused to act on behalf of
the person.
(b) Individual records that shall be available to the protection
and advocacy agency under this section shall include, but not be
limited to, all of the following information and records related to
the investigation, whether written or in another medium, draft or
final, including, but not limited to, handwritten notes, electronic
files, photographs, videotapes, or audiotapes:
(1) Information and records prepared or received in the course of
providing intake, assessment, evaluation, education, training, or
other supportive services, including, but not limited to, medical
records, financial records, monitoring reports, or other reports,
prepared or received by a member of the staff of a facility, program,
or service that is providing care, treatment, or services.
(2) Reports prepared by an agency charged with investigating
reports of incidents of abuse, neglect, injury, or death occurring at
the program, facility, or service while the individual with a
disability is under the care of a member of the staff of a program,
facility, or service, or by or for a program, facility, or service,
that describe any or all of the following:
(A) Abuse, neglect, injury, or death.
(B) The steps taken to investigate the incidents.
(C) Reports and records, including, but not limited to, personnel
records prepared or maintained by the facility, program, or service
in connection with reports of incidents, subject to the following:
(i) If a state statute specifies procedures with respect to
personnel records, the protection and advocacy agency shall follow
those procedures.
(ii) Personnel records shall be protected from disclosure in
compliance with the fundamental right of privacy established pursuant
to Section 1 of Article I of the California Constitution. The
custodian of personnel records shall have a right and a duty to
resist attempts to allow the unauthorized disclosure of personnel
records, and may not waive the privacy rights that are guaranteed
pursuant to Section 1 of Article I of the California Constitution.
(D) Supporting information that was relied upon in creating a
report, including, but not limited to, all information and records
that document interviews with persons who were interviewed, physical
and documentary evidence that was reviewed, or related investigative
findings.
(3) Discharge planning records.
(c) Information in the possession of a program, facility, or
service that must be available to the agency investigating instances
of abuse or neglect pursuant to paragraph (1) of subdivision (a) of
Section 4902, whether written or in another medium, draft or final,
including, but not limited to, handwritten notes, electronic files,
photographs, videotapes, audiotapes, or records, shall include, but
not be limited to, all of the following:
(1) Information in reports prepared by individuals and entities
performing certification or licensure reviews, or by professional
accreditation organizations, as well as related assessments prepared
for a program, facility, or service by its staff, contractors, or
related entities, subject to any other provision of state law
protecting records produced by medical care evaluation or peer review
committees.
(2) Information in professional, performance, building, or other
safety standards, or demographic and statistical information,
relating to the facility.
(d) The authority of the protection and advocacy agency to have
access to records does not supersede any prohibition on discovery
specified in Sections 1157 and 1157.6 of the Evidence Code, nor does
it supersede any prohibition on disclosure subject to the
physician-patient privilege or the psychotherapist-patient privilege.
(e) (1) The protection and advocacy agency shall have access to
records of individuals described in paragraph (1) of subdivision (a)
of Section 4902 and in subdivision (a), and other records that are
relevant to conducting an investigation, under the circumstances
described in those subdivisions, not later than three business days
after the agency makes a written request for the records involved.
(2) The protection and advocacy agency shall have immediate access
to the records, not later than 24 hours after the agency makes a
request, without consent from another party, in a situation in which
treatment, services, supports, or other assistance is provided to an
individual with a disability, 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.
(f) Confidential information kept or obtained by the protection
and advocacy agency shall remain confidential and may not be subject
to disclosure. This subdivision shall not, however, prevent the
protection and advocacy agency from doing any of the following:
(1) Sharing the information with the individual client who is the
subject of the record or report or other document, or with his or her
legally authorized representative, subject to any limitation on
disclosure to recipients of mental health services as provided in
subsection (b) of Section 10806 of Title 42 of the United States
Code.
(2) Issuing a public report of the results of an investigation
that maintains the confidentiality of individual service recipients.
(3) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies that are responsible for facility
licensing or accreditation, employee discipline, employee licensing
or certification suspension or revocation, or criminal prosecution.
(4) Pursuing alternative remedies, including the initiation of
legal action.
(5) Reporting suspected elder or dependent adult abuse pursuant to
the Elder Abuse and Dependent Adult Civil Protection Act (Chapter 11
(commencing with Section 15600) of Part 3 of Division 9).
(g) The protection and advocacy agency shall inform and train
employees as appropriate regarding the confidentiality of client
records.

4904. (a) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for an injury resulting from
an employee's or agent's act or omission where the act or omission
was the result of the exercise, in good faith, of the discretion
vested in him or her.
(b) The protection and advocacy agency, its employees, and
designated agents, shall not be liable for damages awarded under
Section 3294 of the Civil Code or other damages imposed primarily for
the sake of example and by way of punishing the defendant.
(c) The protection and advocacy agency, its employees, and
designated agents, when participating in filing a complaint or
providing information pursuant to this division or participating in a
judicial proceeding resulting therefrom shall be presumed to be
acting in good faith and unless the presumption is rebutted, shall be
immune from any liability, civil or criminal, and shall be immune
from any penalty, sanction, or restriction that might be incurred or
imposed.

4905. (a) No employee or agent of a facility, program, or service
shall subject a person with a disability to reprisal or harassment or
directly or indirectly take or threaten to take any action that
would prevent the person, his or her legally authorized
representative, or family member from reporting or otherwise bringing
to the attention of the protection and advocacy agency any facts or
information relative to suspected abuse, neglect, or other violations
of the person's rights.
(b) Any attempt to involuntarily remove from a facility, program,
or service, or to deny privileges or rights without good cause to a
person with a disability by whom or for whom a complaint has been
made to the protection and advocacy agency, within 60 days after the
date the complaint is made or within 60 days after the conclusion of
any proceeding resulting from the complaint, shall raise a
presumption that the action was taken in retaliation for the filing
of the complaint.

4906. (a) The protection and advocacy agency may not obtain access
through the use of physical force to facilities, programs, service
recipients, residents, or records required by the division if this
access is delayed or denied.
(b) Notwithstanding subdivision (a), nothing in this division is
intended to preclude the protection and advocacy agency from pursuing
appropriate legal remedies to enforce its access authority under
this division or applicable federal law.

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