Protection & Advocacy, Inc.

5031.01 January 2005

 SUMMARY OF PROTECTION & ADVOCACY INC.’S
AUTHORITY UNDER STATE AND FEDERAL LAW

WHAT IS PROTECTION & ADVOCACY, INC.?

Protection & Advocacy, Inc. (PAI) is an independent, private, nonprofit agency established in 1978 pursuant to the Developmental Disabilities Assistance and Bill of Rights Act.  42 U.S.C. § 15001 et seq.  [“DD Act”].  Congress mandated that each state receiving funds under the DD Act establish such an advocacy system to protect the rights and interests of persons with developmental disabilities.  PAI is the advocacy system for California.  Congress subsequently expanded the responsibilities of the existing protection and advocacy system to include advocacy for all persons with disabilities, including psychiatric and other disabilities.  42 U.S.C. § 10801 et seq. [“PAIMI Act”]; 29 U.S.C. § 794e et seq. [“PAIR Act”].

In 1991, the California legislature enacted legislation which acknowledged the authority of PAI under federal law and brought state law into compliance with federal requirements.  Welf. & Inst. Code § 4900 et seq.  In 2003, SB 577 was enacted (Kuehl) [Stats. 2003, ch. 878, eff. 1/1/04], bringing state law into compliance with the subsequent expansion of federal law and regulations.

WHAT ACTIVITIES DOES PAI ENGAGE IN?

In protecting and advocating for the rights of persons with disabilities, PAI may do the following:

·       Investigate incidents of abuse and neglect if the incident is reported to PAI or if PAI determines that there is probable cause to believe the incident occurred. 

·       Pursue administrative, legal, and other appropriate remedies or approaches to ensure the protection of rights of eligible persons with disabilities. 

·       Provide information, referral and training concerning programs and services addressing needs of eligible individuals, and training about individual rights and services available from PAI. 

WHAT ARE PAI’S ACCESS AUTHORITIES?

A.  FACILITIES AND PROGRAMS

PAI is granted reasonable access to facilities or programs providing care and treatment to persons with disabilities.  This access permits PAI to conduct abuse or neglect investigations[1], provide information and training about the rights of individuals with disabilities, and monitor the facility or program’s compliance with respect to the rights and safety of service recipients.  In the case of investigations into allegations of abuse or neglect, this access must be at all times necessary and includes the authority to examine all relevant records and interview program or facility service recipients, employees, or other persons who might have knowledge of the alleged abuse and neglect.[2]  In carrying out all other functions, PAI has access to facilities, programs, services and service recipients during normal working hours and visiting hours or other reasonable times.[3]  Formal information and training sessions must be scheduled at times mutually agreeable to PAI and program or facility management.[4]

A “facility” or “program” to which PAI is entitled to access includes a public or private facility providing services, support, care, or treatment to persons with disabilities.  This specifically includes, but is not limited to, a hospital, long-term health care facility, community living arrangement for people with disabilities (including a group home, board and care home, individual residence or apartment of a person with a disability where services are provided), day program, juvenile detention facility, homeless shelter, jail or prison, any facility that is unlicensed but is not exempt from licensure, and a public or private school or other institution or program providing education, training, habilitation, therapeutic, or residential services to persons with disabilities.[5]

B.  INFORMATION AND RECORDS

PAI has authority to access records of facilities serving people with disabilities and the confidential records of people with disabilities.[6]  The records available to PAI include, but are not limited to:

·       Information and records prepared or received in the course of providing intake, assessment, evaluation, education, training, or other supportive services, including medical records, financial records, monitoring reports, or other reports, prepared by facility, program or service staff.[7] 

·       Reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, injury, or death occurring at a facility, where the individual with a disability is receiving services for care.[8]  In an abuse or neglect investigation, this includes personnel records prepared by or maintained by the facility in connection with reports of incidents of abuse, neglect, injury or death.[9]  

·       Discharge planning records.[10]

·       Pursuant to an investigation into abuse or neglect allegations, information in possession of a facility including:

-     reports prepared by individuals and entities performing certification or licensure reviews, or by professional accreditation organizations, and related assessments prepared for a facility 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; [11] and

-     information in professional, performance, building, or other safety standards, demographic or statistical information relating to a facility. [12]

PAI has the authority to access the records listed above, whether written or in another medium, draft or final, including but not limited to handwritten notes, electronic files, photographs, videotapes, or audiotapes.

WHOSE RECORDS CAN PAI ACCESS?

PAI is entitled to access the confidential records of people with disabilities[13] under the following authority:

·       Any person who is a PAI client, if that person, or legal guardian, conservator, or other legal representative of that person, has authorized PAI to have access to information and records.[14]  A “legal guardian,” “conservator,” or “legal representative” is the person who has legal authority to consent to health or mental health care or treatment on behalf of the individual.[15]

·       Any person, including any person who cannot be located, to whom all of the following conditions apply:

-     The individual, due to his or her mental or physical condition, is unable to authorize PAI to have access to his or her records;

-     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; and

-     PAI 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. [16]

·       Any person who is deceased, and for whom PAI has received a complaint that the individual has been subject to abuse or neglect, or has determined that probable cause exists to believe that an individual has been subjected to abuse or neglect.[17]  PAI is entitled to access such records without consent from another party.[18] 

·       Any person who has a legal guardian, conservator, or other legal representative with respect to whom a complaint has been received by PAI, or with respect to whom PAI 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:

-     PAI has contacted the representative upon receipt of the representative’s name and address,

-     PAI has offered assistance to the representative to resolve the situation; and

-     The representative has failed or refused to act on behalf of the person. [19]

Under state and federal law, PAI is the final arbiter of determining if there is 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.  The probable cause determination is based upon reasonable inferences drawn from individual experience or training regarding similar incidents, conditions, or problems that are usually associated with abuse or neglect.  Information supporting a probable cause determination may arise from monitoring or other activities, including but not limited to, media reports and newspaper articles.[20] 

If PAI is denied access due to lack of authorization, the facility, program or service provider shall promptly provide PAI with 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.  Reasons for delay or denial of access must be provided in writing to PAI promptly.[21]

PAI’s authority to access records is not affected by the regulations implementing the Health Insurance Portability and Accountability Act [HIPAA].  The HIPAA regulations provide additional protections regarding the release of protected health information by health care providers and other entities.[22]  

WHAT ARE THE TIME FRAMES FOR PAI ACCESS TO RECORDS?

PAI shall have access to the records that are relevant to conducting an abuse or neglect investigation, not later than three business days after PAI makes a written request for the records.  PAI shall have immediate access to the records, not later than 24 hours after PAI makes a request, without consent from another party, if PAI determines that the individual is in serious and immediate jeopardy, or in the case of a death of an individual with a disability.[23] 

WHAT CAN PAI DO WITH THE INFORMATION AND RECORDS THAT IT OBTAINS?

Confidential information kept or obtained by PAI shall remain confidential and may not be subject to disclosure.[24]  However, PAI may do any of the following:

·       Share 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. 

·       Issue a public report of the results of an investigation that maintains the confidentiality of individual clients. 

·       Report the results of an investigation to responsible investigative or enforcement agencies including, but not limited to, agencies that are responsible for facility licensing or accreditation, employee discipline, employee licensing or certification suspension or revocation, or criminal prosecution. 

·       Pursue alternative remedies, including the initiation of legal action.

·       Report suspected elder or dependent adult abuse pursuant to the Elder Abuse and Dependent Adult Civil Protection Act, Welf. & Inst. Code § 15600 et seq. [25]