(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 guardian, conservator, limited 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 their records expressly denies this access after being informed by the protection and advocacy agency of their right to authorize or deny access, the protection and advocacy agency shall 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 their mental or physical condition, is unable to authorize the protection and advocacy agency to have access to their records.
(B) The individual does not have a guardian, conservator, limited 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 is authorized pursuant to subdivision (a) of Section 4902 to exercise the authority specified in that section.
(3) Any person who is deceased. Probable cause to believe that the death of an individual with a disability resulted from abuse or neglect or any other specific cause is not required for the protection and advocacy agency to obtain access to the records. For the purposes of access pursuant to this paragraph, “person with a disability” includes a person who died in a situation in which services, supports, or other assistance is, or has, customarily been provided to people with disabilities.
(4) Any person who has a guardian, conservator, limited 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 or may be subjected to abuse or neglect, whenever all of the following conditions exist:
(A) The protection and advocacy agency made a good faith effort to contact the guardian, conservator, limited conservator, or other legal representative upon prompt receipt of the representative’s contact information, which shall include, but not be limited to, the representative’s name, address, telephone number, and email 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 consent on behalf of the person.
(5) Any other person with a disability under the circumstances described in subdivision (a) of Section 4902.
(b) Individual records that shall be available to the protection and advocacy agency under this division, whether written or in another medium, draft, preliminary, or final, including, but not limited to, handwritten notes, electronic files, photographs, videotapes, or audiotapes, shall include, but not be limited to, all of the following:
(1) Information and records prepared or received in the course of providing intake, assessment, evaluation, education, training, or other services, supports, or assistance, 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 provider. This includes records stored or maintained at sites other than that of the facility, program, or service provider and records that were not prepared by the facility, program, or service provider, but received by the facility, program, or service provider.
(2) Reports prepared by a federal, state, or local governmental agency or a private organization charged with investigating reports of incidents of abuse, neglect, injury, or death. The organizations whose reports are subject to this requirement include, but are not limited to, agencies in the foster care system, disabilities systems, prison and jail systems, facilities used to house or detain persons for purposes of civil immigration proceedings, public and private educational systems, emergency shelters, criminal and civil law enforcement agencies such as police departments, agencies overseeing juvenile justice facilities, juvenile detention facilities, all preadjudication and postadjudication juvenile facilities, state and federal licensing and certification agencies, and private accreditation organizations such as the Joint Commission on the Accreditation of Healthcare Organizations or by medical care evaluation or peer review committees, regardless of whether they are protected by state law. The reports subject to this requirement 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 provider 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 provider that must be available to the agency investigating instances of abuse or neglect pursuant to subdivision (a) of Section 4902, whether written or in another medium, draft, preliminary, 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 provider by its staff, contractors, or related entities, including peer review committees.
(2) Information in professional, performance, building, or other safety standards, or demographic and statistical information, relating to the facility, program, or service provider.
(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) An educational agency, including, but not limited to, public, private, and charter schools and public and private residential and nonresidential schools, shall provide the protection and advocacy agency with the name and contact information for the parent or guardian of a student for whom the protection and advocacy agency has authority to access, inspect, and copy records.
(f) (1) The protection and advocacy agency shall have access to records of individuals described in 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, including the right to inspect and copy the records, as described in subdivision (g), 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 that the health or safety of the individual is in serious and immediate jeopardy, or in a case of the death of an individual with a disability.
(3) If the protection and advocacy agency’s access to records is denied or delayed beyond the deadlines specified in paragraphs (1) and (2), the protection and advocacy agency shall, within two business days after the expiration of the deadline, be provided with a written statement of reasons for the denial or delay. In the case of a denial for alleged lack of authorization, the name, address, and telephone number of the guardian, conservator, limited conservator, or other legal representative of the individual with a disability shall be included in the statement.
(g) A protection and advocacy agency shall be permitted to inspect and copy information and records, subject to a reasonable charge to offset duplicating costs. If the facility, program, or service provider or its agents copy the records for the protection and advocacy agency, it shall not charge the protection and advocacy agency an amount that would exceed the amount authorized by the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) for reproducing documents. The protection and advocacy agency may make written notes when inspecting information and records, and may use its own photocopying equipment to obtain copies. For state-operated mental health facilities, the protection and advocacy agency may not use equipment or devices otherwise restricted in the facilities when copying records in a portion of the facility where the restriction applies. If a party other than the protection and advocacy agency performs the photocopying or other reproduction of records, it shall provide the photocopies or reproductions to the protection and advocacy agency within the timeframes specified in subdivision (f). In addition, if records are kept or maintained electronically, they shall be provided to the protection and advocacy agency electronically.
(h) (1) Confidential information kept or obtained by the protection and advocacy agency shall remain confidential and is not subject to disclosure.
(2) The protection and advocacy agency shall obtain written consent from the following individuals, as applicable, before releasing information concerning them to a person not otherwise authorized to receive it:
(A) An individual with a disability, a client, or the individual’s or client’s guardian, conservator, limited conservator, or other legal representative.
(B) An individual who has been provided general information or technical assistance on a particular matter.
(C) An individual who furnishes reports or information that form the basis for a determination of probable cause that an individual has been or may be subject to abuse or neglect, or is in serious and immediate jeopardy.
(3) This subdivision shall not, however, prevent the protection and advocacy agency from doing any of the following:
(A) Sharing the information with the individual client who is the subject of the record or report or other document, or with the client’s 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.
(B) Issuing a public report of the results of an investigation that maintains the confidentiality of individual service recipients.
(C) Reporting the results of an investigation to responsible investigative or enforcement agencies in a manner that maintains the confidentiality of the individuals should an investigation reveal information concerning the facility, program, or service provider, or their staff or employees warranting possible sanctions or corrective action. The information may be reported to agencies that are responsible for facility, program, or service provider licensing or accreditation, employee discipline, employee licensing or certification suspension or revocation, or criminal investigation or prosecution.
(D) Pursuing alternative remedies, including the initiation of legal action.
(E) 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).
(4) Notwithstanding the confidentiality requirements of this section, the protection and advocacy agency may make a report to investigative or enforcement agencies that reveals the identity of an individual with a disability, and information relating to their status or treatment in any of the following situations:
(A) When the agency has received a complaint that the individual has been or may be subject to abuse and neglect, or has probable cause to believe that the individual has been or may be subject to abuse or neglect.
(B) When the protection and advocacy agency determines that the health or safety of the individual is in serious and immediate jeopardy.
(C) In the case of the death of an individual whom the protection and advocacy agency believes may have had a disability.
(i) The protection and advocacy agency shall inform and train employees as appropriate regarding the confidentiality of client records.
(j) The authority provided pursuant to subdivision (b) shall include access to all 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 (h).
(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 as described in subdivision (a) of Section 5328.15. The information shall remain confidential and subject to the confidentiality requirements of subdivision (h).
(k) Notwithstanding any other state law governing patient privacy, the sharing of health information and records with a protection and advocacy agency is permitted to the extent that the sharing is required by law and complies with the requirements of that law. The Legislature finds and declares that the federal Health Insurance Portability and Accountability Act of 1996 privacy rule permits the disclosure of protected health information to a protection and advocacy agency, without the authorization of the individual who is the subject of the protected health information, to the extent that the disclosure is required by law and the disclosure complies with the requirements of that law.
(Amended by Stats. 2019, Ch. 548, Sec. 3. (SB 398) Effective January 1, 2020.)