(a) The protection and advocacy agency, in protecting and advocating for the rights of people with disabilities, pursuant to the federal mandate, may exercise any authority specified in this section when one or more of the following occurs:
(1) The agency receives a complaint or report of alleged abuse or neglect, or of an incident in which an individual is in serious and immediate jeopardy.
(2) The agency determines that probable cause exists that an individual has been or may be subject to abuse or neglect.
(3) The agency determines that the health or safety of an individual is in serious and immediate jeopardy.
(b) If subdivision (a) applies, the protections and advocacy agency may exercise the authority granted pursuant to subdivision (a) to do all of the following:
(1) Investigate any incident of alleged abuse or neglect of any person with a disability. This authority includes reasonable unaccompanied access to a facility, program, or service provider, and authority to examine all relevant records and interview any facility, program, or service provider recipient, employee, or other person who may 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.
(4) Monitor a facility’s, program’s, or service provider’s compliance with respect to the rights and safety of individuals with disabilities.
(c) The protection and advocacy agency and its authorized agents shall, in addition, have reasonable unaccompanied access to public or private facilities, programs, and service providers, including all areas of the facility, program, or service providers’ premises that are used by, or accessible to, individuals with disabilities and reasonable unaccompanied access to those persons.
(1) (A) The protection and advocacy agency shall have reasonable unaccompanied access to all public or private facilities, programs, or service providers, including to users of those facilities, programs, and services, at all times as are necessary, and without advance notice, to investigate incidents of alleged abuse and neglect in accord with paragraph (1) of subdivision (b).
(B) Access pursuant to this paragraph includes the opportunity to interview any individual with a disability, employee, or other person, including a person alleged to be the victim of abuse, who might be reasonably believed by the protection and advocacy agency to have knowledge of an incident under investigation. Except as otherwise required by law, the protection and advocacy agency shall not be required to provide the name or other identifying information regarding any individual with a disability or staff with whom it plans to meet or to justify or explain its interactions with those persons.
(C) Access to an individual pursuant to this paragraph shall be afforded immediately, except as otherwise provided in paragraph (3), upon request.
(2) The protection and advocacy agency shall have reasonable unaccompanied access during reasonable times, which, at a minimum, includes normal working hours and visiting hours, for other advocacy services. Protection and advocacy agency activities shall be conducted so as to minimize interference with service provider programs, respect individuals with disabilities’ privacy interests, and honor a recipient’s request to terminate an interview. This access includes, but is not limited to, all 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. The protection and advocacy agency shall be permitted to post, in an area in which individuals with disabilities receive services, a poster that identifies the services available from the protection and advocacy agency and 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, program, or service provider’s premises that are used by individuals with disabilities, or that are accessible to them, but does not include photographing or video recording individuals with disabilities without their consent.
(3) (A) If the protection and advocacy agency’s access to facilities, programs, service providers, service recipients, or individual with a disability is delayed or denied by a facility, program, or service provider, the facility, program, or service provider 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 provider shall promptly provide to the agency the name, address, and telephone number of the guardian, conservator, limited conservator, or other legal representative of the individual with a disability for whom authorization is required. Access to a facility, program, service provider, service recipient, or individual with a disability shall not be delayed or denied without the prompt provision of a written statement of the reasons for the denial.
(B) A facility, program, or service provider shall not be required to afford immediate access if complying with the request would interfere with treatment or therapy to be provided to an individual with a disability. If access to an individual must be delayed beyond 24 hours to allow for the provision of treatment or therapy, the protection and advocacy agency shall receive access as soon as possible thereafter.
(C) If a facility, program, or service provider denies the protection and advocacy agency’s access to an individual with a disability on the grounds specified in subparagraph (B), the facility, program, or service provider shall, within 24 hours of the request, provide the protection and advocacy agency with a written statement from a physician, or, in the case of a state-operated mental health facility, a member of the treatment team, stating that access to the individual will interfere with the individual’s treatment or therapy, and the time and circumstances under which the protection and advocacy agency can interview the individual. If the physician, or, in the case of a state-operated mental health facility, a member of the treatment team, states that the individual cannot be interviewed within 24 hours of the protection and advocacy agency being provided the written statement, the protection and advocacy agency and the facility, program, or service provider shall engage in a good faith interactive process to determine when, and under what circumstances, the individual may be interviewed. If the protection and advocacy agency and the facility, program, or service provider are unable to agree upon the time and circumstance, they shall select a mutually agreeable independent physician, or, in the case of a state-operated mental health facility, a mutually agreeable physician employed by a state-operated mental health facility who does not have a history of treating the patient, who will determine when, and under what circumstances, the individual may be interviewed. The expense of the independent physician’s services shall be paid for by the facility, program, or service provider. Individuals with disabilities subject to the requirements in this paragraph include adults and minors who have guardians, limited conservators, conservators, or other legal representatives.
(d) The protection and advocacy agency shall be permitted to attend treatment planning meetings concerning individuals with disabilities, with the consent of the individual or the individual’s guardian, conservator, limited conservator, or other legal representative, except that consent is not required if the individual, due to their mental or physical condition, is unable to authorize the protection and advocacy agency to have access to a treatment planning meeting and either the individual does not have a guardian, conservator, limited conservator, or other legal representative, or the individual’s guardian, conservator, limited conservator, or other legal representative is the state or one of its political subdivisions. The protection and advocacy agency shall not attend treatment planning meetings if the individual objects on the individual’s own behalf to the protection and advocacy agency’s attendance at the treatment planning meetings.
(e) The protection and advocacy agency shall not enter an individual residence or apartment of a client or the client’s 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.
(Amended by Stats. 2019, Ch. 548, Sec. 2. (SB 398) Effective January 1, 2020.)