CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 333

Author:(Eggman)

As Amended Ver:August 30, 2019

Majority vote

SUMMARY:

Extends whistleblower protections to county patients' rights advocates appointed or under contract to provide services relating to mental health advocacy.

The Senate Amendments:

Delete the prior version of the bill and instead:

1. Insert whistleblower and anti-retaliation protections for county patient rights' advocates into the Welfare and Institutions Code.
2. Provide that these protections are enforceable through a private right of action but shall not result in an administrative investigation or proceedings by the Department of Industrial Relations.
3. Clarify that the bill's provisions apply to a county patients' rights advocate who performs this role as an independent contractor or employee of a contracted organization.

COMMENTS:

While current law protects employee whistleblowers from retaliation, it does not protect contracted employees working for state and local government, and more specifically, patients' rights advocates (PRAs).

According to the Author:

The author describes the work of PRAs as providing "oversight of county mental health facilities and receiving and investigating complaints at those facilities. Occasionally, PRAs may need to contact licensing or other state regulatory officials over egregious and intractable patients' rights violations at county facilities."

The author further states that there have been many reports of retaliation against PRAs "who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since a PRA's job exists to govern the wellbeing of patients, and not the hospitals in which they reside, this bill seeks to protect those individuals and the populations whom they serve."

Arguments in Support:

The California Association of Mental Health Patients' Rights Advocates, a sponsor of the bill, argues the need for the bill, stating that "AB 333 will support the work of PRAs and ultimately protect the patients for whom they advocate."

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee, the Department of Industrial Relations indicates that it would incur first-year costs of $717,000, and ongoing costs of $682,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

VOTES:

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Kalra, Flora, Carrillo, Diep, Gonzalez, Bonta, Luz Rivas

ASM APPROPRIATIONS: 13-0-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bigelow, Brough, Diep, Fong, Obernolte

ASSEMBLY FLOOR: 78-0-2

YES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie‑Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Cooley, Eduardo Garcia

SENATE FLOOR: 31-8-1

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Borgeas, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ABS, ABST OR NV: Dahle

UPDATED:

VERSION: August 30, 2019

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0001958

 THIRD READING  

Bill No: AB 333

Author: Eggman (D), et al.

Amended: 8/30/19 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 5-0, 6/26/19

AYES: Hill, Morrell, Jackson, Mitchell, Pan

SENATE JUDICIARY COMMITTEE: 7-1, 7/9/19

AYES: Jackson, Durazo, Lena Gonzalez, Monning, Stern, Umberg, Wieckowski

NOES: Jones

NO VOTE RECORDED: Borgeas

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/30/19

AYES: Portantino, Bradford, Durazo, Hill, Wieckowski

NOES: Bates, Jones

ASSEMBLY FLOOR: 78-0, 5/23/19 - See last page for vote

SUBJECT: Whistleblower protection: county patients’ rights advocates

SOURCE: Author

DIGEST:

This bill extends existing whistleblower protections to county mental health patients’ rights advocates.

ANALYSIS:

Existing law:

1. Prohibits an employer, or any person acting on behalf of the employer, from preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law. In addition to other penalties, an employer who violates this provision is liable for a civil penalty of up to $10,000 per violation. (Labor Code §1102.5)
2. Provides aggrieved workers with the ability to seek relief through civil action, including injunctive relief. When weighing injunctive relief, the court must consider the chilling effect of the alleged violation on the ability of other workers to assert their rights. (Labor Code §§ 1102.6, 1102.61, & 1102.62)
3. Requires local mental health director to appoint, or contract for the services of, one or more county patients’ rights advocates. The duties of these advocates includes:
4. Receiving and investigating complaints from or concerning recipients of mental health services residing in licensed health or community care facilities regarding abuse, unreasonable denial or punitive withholding of rights.
5. Monitoring mental health facilities, services and programs for compliance with statutory and regulatory patients’ rights provisions.
6. Providing training and education about mental health law and patients’ rights to mental health providers.
7. Ensuring that recipients of mental health services in all licensed health and community care facilities are notified of their rights.
8. Exchanging information and cooperate with the patients’ rights program. (Welfare and Institutions Code §5520)

This bill:

1. Establishes anti-retaliation, whistleblower protections for county patients’ rights advocates who perform this role as independent contractors or employees of a contracted organization.
2. Provides county patients’ rights advocates with a private right of action, which does not require an administrative investigation.
3. Makes minor and technical conforming changes.

Comments

1. Need for this bill? The author states the following:

“Labor Code (§1102.5) currently protects employees from retaliation; if an employee needs to speak out against an employer for a policy violation, Labor Code states that their employer cannot prevent them, nor can they retaliate against them. However, this section does not apply to contracted employees, who would thereby be risking the security of their contracts if they were to disclose that an employer is breaking the law.

There have been many reports of retaliation against contracted Patients’ Rights Advocates (PRAs) who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since a PRA’s job exists to govern the wellbeing of patients, and not the hospitals in which they reside, this bill seeks to protect those individuals and the populations whom they serve. This bill serves to protect Patients’ Rights Advocates (PRA) who work as independent contractors with state and local government from retaliation, in the event that they must disclose that their contracted employer violated a policy.”

“… AB 333 will provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection afforded by Labor Code §1102.5.”

Related/Prior Legislation

AB 2317 (Eggman, 2018) was nearly identical to this bill. AB 2317 was vetoed by Governor Brown.

AB 403 (Melendez, Chapter 2, Statutes of 2018), known as the “Legislative Employee Whistleblower Protection Act,” prohibited a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee’s exercise of the right to make a protected disclosure.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

According to the Senate Appropriations Committee, the Department of Industrial Relations indicates that it would incur first-year costs of $717,000, and ongoing costs of $682,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

SUPPORT: (Verified 8/28/19)

California Association of Professional Scientists

California Behavioral Health Planning Council

California Employment Lawyers Association

Consumer Attorneys of California

Disability Rights California

Mental Health Association in California

National Association of Social Workers, California Chapter

Oakland Privacy

OPPOSITION: (Verified 8/28/19)

None received

ARGUMENTS IN SUPPORT: Mental Health America of California, writing in support of the bill, argues the following:

“Patients’ Rights Advocates (PRAs) conduct some of the most challenging and vital work in California’s mental health system by protecting the rights of those with mental illness, who are some of our most vulnerable community members. PRAs have a wide range of responsibilities, from educating patients about their legal rights and representing those patients in legal hearings, to local and state-level advocacy.

In order to effectively advocate for patients, PRAs must be able to respond to patient complaints of abuse or neglect, and reach out to state regulatory officials, when necessary, to report a violation. Sometimes this means they must file complaints against county facilities, yet they are directly hired by the county. In such cases, while county employees benefit from whistleblower protections under the law, PRAs who are hired as independent contractors are not protected from retaliation from their employer. A survey conducted in 2017 by the California Behavioral Health Planning Council (CBHPC) and the California Association of Mental Health Patients’ Rights Advocates (CAMHPRA) found that a concerning number of PRAs reported that fear about their employment effects how strongly they advocate against practices and policies they believe violate their clients’ rights. Furthermore, written comments from several PRAs expressed serious concerns about retaliation.

MHAC believes that AB 333 will support the work of PRAs and ultimately protect the patients for whom they advocate. While PRAs are one critical example of a position commonly held by independent contractors, this bill will protect others in similar positions as well by extending whistleblower protections to all independent contractors working in watchdog roles within state and local government facilities.”

ASSEMBLY FLOOR: 78-0, 5/23/19

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chen, Chiu, Choi, Chu, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Cooley, Eduardo Garcia

Prepared by: Gideon L. Baum / L., P.E. & R. / (916) 651-1556

9/3/19 9:01:06

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 333 (Eggman) - Whistleblower protection: county patients’ rights advocates

Bill Summary:

AB 333 would extend whistleblower protections to individuals and entities that have contracts with the state or local government to oversee compliance with patients’ rights in county mental health treatment facilities. The bill also would provide a private right of action for the enforcement of those protections if necessary.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 30, 2019

Fiscal Impact:

The Department of Industrial Relations (DIR) indicates that it would incur first-year costs of $717,000, and ongoing costs of $682,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

Author Amendments:

Place the whistleblower protections in the Welfare and Institutions Code instead of the Labor Code.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 333 (Eggman) - Whistleblower protection: county patients’ rights advocates

Bill Summary:

AB 333 would extend whistleblower protections to individuals and entities that have contracts with the state or local government to oversee compliance with patients’ rights in county mental health treatment facilities. The bill also would provide a private right of action for the enforcement of those protections if necessary

Fiscal Impact:

The Department of Industrial Relations (DIR) indicates that it would incur first-year costs of $717,000, and ongoing costs of $682,000 annually thereafter to implement the provisions of the bill (Labor Enforcement and Compliance Fund).

Background:

The Lanterman-Petris-Short Act sets forth a de facto bill of rights for mental health patients who reside in licensed facilities. For example, among other things, such patients have the right to (1) challenge involuntary holds, (2) refuse medical treatment or medication except under limited circumstances, (3) have social interaction, (4) participate in certain activities, (5) engage in physical exercise and recreational opportunities, and (6) be free from abuse.

To help ensure enforcement of these rights, each county mental health director is required to have one or more county patients’ rights advocates. The role is akin to being an ombudsperson for mental health patients, and entails monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Executing these duties will naturally produce some tension between the county patients’ rights advocates and the facilities that they are overseeing. Some patients’ rights advocates reportedly receive pushback from the facilities and sometimes from the county itself.

When a county patients’ rights advocate is an employee of the county, the advocate enjoys legal protections through existing laws that shield whistleblowers. Those laws prohibit employers from trying to prevent their employees from “blowing the whistle” on unlawful conduct. Specifically, employers cannot try to stop their employees from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. The same laws also prohibit employers from retaliating against employees after those employees have blown the whistle.

However, not all county patients’ rights advocates are considered employees. Many operate as independent contractors or are organizational entities that contract with the local health director to carry out the county patients’ rights advocate role. In these cases, because these county patients’ rights advocates are not employees, they do not benefit from the aforementioned whistleblower protections.

Proposed Law:

This bill would do the following:

• Provide that, regardless of whether an advocate is an employee or a contracted entity, the contracting agency shall not, among other things, prevent an advocate from, or retaliate against an advocate for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the advocate has reasonable cause to believe that the information discloses a violation of a law, whether or not disclosing the information is part of the advocates’ job duties.
• Make the anti-retaliation rights and protections for advocates enforceable through a private right of action for which no previous administrative investigation is required.

Related Legislation:

• AB 2316 (Eggman, Chapter 237, Statutes of 2018) established training requirements for Patients’ Rights Advocates to ensure they are educated on the full spectrum of laws that the job entails.
• AB 2317 (Eggman, 2018), similar to this bill, would have provided whistleblower protections for county Patients’ Rights Advocates. The bill was vetoed by the Governor.
• AB 595 (Bates, Chapter 841, Statutes of 1981) required each county health director to appoint a Patients’ Rights Advocate to oversee compliance and enforcement of patients’ rights in county mental health facilities.
• SB 677 (Short, Chapter 1667, Statutes of 1967) established the Lanterman-Petris-Short Act, which sets forth a bill of rights for patients residing in mental health treatment facilities.

Staff Comments:

In order to ensure that county patients’ rights advocates can carry out their duties and to blow the whistle on anything they reasonably believe to be unlawful activity, this bill would extend the existing whistleblower protections for employees to all county patients’ rights advocates, even if they are operating under a contractual arrangement rather than as an employee.

DIR’s fiscal estimate is based on an assumption that there are approximately 200 Patients’ Rights Advocates in the State that would be covered by the protections of the bill. The number of claims that this bill this could generate is unknown. Additionally, DIR notes that the bill’s proposing to extend retaliation protections to independent contractors and contract entities would raise unique legal concerns, and thus require additional staff resources. Consequently, DIR estimates that the additional staffing cost of implementing the requirements of this bill would be $717,000 in the initial year and $682,000 in subsequent years.

Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: AB 333 (Author:Eggman)

Version: June 26, 2019

Hearing Date: July 9, 2019

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Whistleblower protection: county patients’ rights advocates

DIGEST

This bill extends whistleblower protections to individuals and entities that have contracts with the state or local government to oversee compliance with patients’ rights in county mental health treatment facilities. The bill also provides a private right of action for the enforcement of those protections if necessary.

EXECUTIVE SUMMARY

A county Patients’ Rights Advocate is something like an ombudsperson for mental health patients. The Advocate’s responsibilities include monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Carrying out these duties properly will naturally produce some tension between the Advocate, the facilities that the Advocate is overseeing, and sometimes the county as well. If the Advocate is an employee of the county, existing Labor Code provisions protect the Advocate from retaliation. If the Advocate is not an employee of the county, however, no such Labor Code protections apply. To ensure that Advocates of all types feel safe conducting their oversight duties without fear of retaliation, this bill would extend to all Advocates the protections currently available only to Advocates who are employees of the county. So that these protections are enforceable, the bill also provides all Advocates with the option of seeking redress in court.

The bill is sponsored by the California Association of Mental Health Patients’ Rights Advocates and the California Behavioral Health Planning Council. Support is from worker and disability rights advocates. There is no known opposition at this time. The bill passed out of the Senate Labor, Public Employment and Retirement Committee by a vote of 5-0.

PROPOSED CHANGES TO THE LAW

Existing state law:

1. Sets forth, under the Lanterman-Petris-Short Act, a series of rights that mental health patients have when residing in a licensed health or community care facility. (Welf. & Inst. Code § 5000 et seq.)
2. Requires local mental health directors to appoint one or more “county patients’ rights advocates” to: receive and investigate complaints of violations of the rights of patients residing in licensed health or community care facilities; to monitor facilities for compliance; to provide training on patients’ rights; and to ensure that patients are notified about their rights. (Welf. & Inst. Code § 5520.)
3. Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to or testifying before any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code § 1102.5.)

This bill:

1. Provides that, regardless of whether an Advocate is an employee or a contracted entity, the contracting agency shall not, among other things, prevent an Advocate from, or retaliate against an Advocate for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the Advocate has reasonable cause to believe that the information discloses a violation of a law, whether or not disclosing the information is part of the Advocates’ job duties.
2. Makes the anti-retaliation rights and protections for Advocates enforceable through a private right of action for which no previous administrative investigation is required.

COMMENTS

1. Background

The Lanterman-Petris-Short Act sets forth what is, in effect, a bill of rights for mental health patients who reside in licensed facilities. (Welf. & Inst. Code § 5000 et seq.) For example, such patients have the right to challenge involuntary holds; the right to refuse medical treatment or medication except under limited circumstances; the right to social interaction, the right to participate in certain activities, the right to physical exercise and recreational opportunities; and the right to be free from abuse, among other things.

To help ensure enforcement of these rights, each county mental health director is required to have one or more county Patients’ Rights Advocate. (Welf. & Inst. Code § 5520.) The role is something like an ombudsperson for mental health patients. It includes monitoring facilities for compliance, ensuring that patients are aware of their rights, conducting trainings, and investigating complaints of violations. Carrying out these duties properly will naturally produce some tension between the county patients’ rights advocates and the facilities that they are overseeing. Not surprisingly, the author of this bill reports that some patients’ rights advocates receive pushback from those facilities and sometimes from the county itself.

When a county patients’ rights advocate is an employee of the county, the advocate enjoys legal protections through existing laws that shield whistleblowers. Those laws prohibit employers from trying to prevent their employees from “blowing the whistle” on unlawful conduct. Specifically, employers cannot try to stop their employees from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. (Lab. Code § 1102.5(a).) The same laws also prohibit employers from retaliating against employees after those employees have blown the whistle. (Lab. Code § 1102.5(b).)

The problem is that not all county patients’ rights advocates are employees. Many operate as independent contractors or are organizational entities that contract with the local health director to carry out the county patients’ rights advocate role. Either way, because these county patients’ rights advocates are not employees, they do not benefit from the same whistleblower protections that employees have.

In order to ensure that county patients’ rights advocates feel free to carry out their duties and to blow the whistle on anything they reasonably believe to be unlawful activity, this bill would extend the existing whistleblower protections for employees to all county patients’ rights advocates, even if they are operating under a contractual arrangement other than that of an employee.

1. Prevalence of the issue addressed by this bill

In early 2017, the sponsors of this bill conducted an online survey of Advocates. Seventy-four Advocates completed the survey. Just over 50 percent of the respondents reported that they are employees, meaning that they are protected against retaliation by existing law. The remainder, who are not protected against retaliation to the same degree, were independent contractors (14 percent), employees of a non-county entity contracted to perform the Advocate role (33 percent), or volunteers (1 percent).^[1]

In the same survey, the sponsors of this bill inquired about whether fear of retaliation affected how strongly the Advocates would advocate against practices and policies that violate clients’ rights. Between 13 and 22 percent of Advocates admitted that retaliation concerns did impact their work. Perhaps as tellingly, many Advocates who are not employees indicated that they did not wish to say. In any event, it is clear that at least in some instances, concern over retaliation does have an impact on how forcefully Advocates speak up on behalf of the patients’ whose rights they represent. For example, the survey report includes the following comments from Advocates:

• “It is clear that our position as County Advocates is not a completely autonomous position from the flow of business in our county. Our [Behavioral Health] Department needs the few facilities we have; therefore, it is very important that we stay cognizant of our role to advocate, but tread lightly. When push comes to shove, we know it is easier to replace an advocate than to lose a business partner.”
• “Allowing the County [Mental Health] Director to set the course for advocacy services allows for conflict of interest, as business relationships will trump patients’ rights in the real world. There is no autonomy or protection from administrators that may see you as an adversary or thorn in their side… The [Behavioral Health] Director can choose to divert or silence the efforts of an advocate at any time. Whether we are contract providers or county employees, all of us are subject to unchecked repercussions if we ruffle the wrong feathers.”^[2]

1. The mismatch between this bill’s protections for contractors and the traditional jurisdiction of the California Labor Commissioner

Then-Governor Jerry Brown vetoed a very similar version of this bill last year. While he expressed support for the policy goal behind that bill, AB 2317 (Eggman, 2018), the former Governor pointed out that it would have had the unprecedented effect of giving the California Labor Commissioner jurisdiction over a dispute between an independent contractor and a local government. Traditionally, the Labor Commissioner oversees enforcement of California labor laws, which apply exclusively to employees. In other words, the Labor Commissioner only hears disputes between employers and employees. A dispute between a local government and a person or entity with whom the local government has contracted to perform some task would ordinarily get hashed out in court.

This bill, in contrast to the bill vetoed by Governor Brown, establishes a private right of action for enforcement which both employees and independent contractors may utilize in the event that the county retaliates against them. The bill thus avoids the unprecedented expansion of Labor Commission jurisdiction that formed the basis for the veto of the prior bill.

4. Arguments in support of the bill

According to the author:

This bill serves to protect Patient’s Rights Advocates [PRAs] from retaliation, in the event that they must disclose that their contracted employer violated a policy. AB 2317 will provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection. It is especially relevant in this sensitive time during which we are seeing a growing number of allegations of sexual harassment and assault. This bill could serve as a bridge for victims of sexual harassment or abuse who are in these facilities to come forward, and to hold their accusers accountable without fear of retaliation.

As sponsor of the bill, the California Behavioral Health Planning Council writes:

In order to effectively advocate for patients, PRAs must be able to respond to patient complaints of abuse or neglect, and reach out to state regulatory officials, when necessary, to report a violation. Sometimes this means they must file complaints against county facilities, yet they are hired by the county. In such cases, while county employees benefit from whistleblower protections under the law, PRAs who are hired as independent contractors are not protected from retaliation from their employer. We stand with our fellow colleagues and advocates who are calling upon the state to extend whistleblower protections to patients’ rights advocates.

As sponsor of the bill, the California Association of Mental Health Patients’ Rights Advocates (CAMHPRA) writes:

the passage of AB 333 would have a tremendous impact on the entirety of California’s mental health system. Based on past incidents of retaliation against PRAs, CAMHPRA estimates extending whistleblower protections to contracted PRAs would generate one potential case every 3-4 years. This legislation places a minimal burden on state agencies investigating these claims, while having a significant impact deterring a rouge county from firing their PRAs for forwarding patient complaints to state regulatory officials.

SUPPORT

California Association of Mental Health Patients’ Rights Advocates (sponsor)
California Behavioral Health Planning Council (sponsor)
California Association of Professional Scientists

California Employment Lawyers Association
Consumer Attorneys of California

Law Foundation of Silicon Valley
Mental Health American of California

National Association of Social Workers, California Chapter

Oakland Privacy

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: AB 1352 (Waldron, 2019), among other things, gives county mental health boards discretion to request assistance local patients’ rights advocates when reviewing and advising on mental health evaluations or services provided in facilities with limited access, such as county jails. AB 1352 is currently pending consideration on the Senate Floor.

Prior Legislation:

AB 2316 (Eggman, Ch. 237, Stats. 2018) established training requirements for Patients’ Rights Advocates to ensure they are educated on the full spectrum of laws that the job entails.

AB 2317 (Eggman, 2018), similar to this bill, would have provided whistleblower protections for county Patients’ Rights Advocates. In his message vetoing AB 2371, Governor Brown wrote: “[w]hile I am supportive of the larger policy goal of this bill, to protect the work of patient rights advocates, this is not the appropriate framework. The bill would expand the Labor Commissioner's jurisdiction beyond the typical employer-employee relationship into larger contract disputes between independent contractors and local governments. I do not believe such a broad change in law is warranted when there is limited evidence of a problem.”

AB 595 (Bates, Ch. 841, Stats. 1981) required each county health director to appoint a Patients’ Rights Advocate to oversee compliance and enforcement of patients’ rights in county mental health facilities.

SB 677 (Short, Ch. 1667, Stats. 1967) established the Lanterman-Petris-Short Act, which sets forth a bill of rights for patients residing in mental health treatment facilities.

PRIOR VOTES:

Senate Labor, Public Employment and Retirement Committee (Ayes 5, Noes 0)

Assembly Floor (Ayes 78, Noes 0)

Assembly Appropriations Committee (Ayes 13, Noes 0)

Assembly Labor and Employment Committee (Ayes 7, Noes 0)

**************

1. Title 9 County Patients’ Rights Advocates (Oct. 2017) California Mental Health Planning Council and California Association of Mental Health Patients’ Rights Advocates https://www.dhcs.ca.gov/services/MH/Documents/Patients%27-Rights-Committee/PRA-Survey-White-Paper-FINAL.pdf (as of Jun. 26, 2019), at pg. 21. ↑

2. Id. at pg. 22. ↑

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 333 Hearing Date: June 26, 2019

SUBJECT: Whistleblower protection: county patients’ rights advocates

KEY ISSUE

Should the Legislature extend existing whistleblower protections to county mental health patients’ rights advocates?

ANALYSIS

Existing law:

1. Prohibits an employer, or any person acting on behalf of the employer, from preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law. In addition to other penalties, an employer who violates this provision is liable for a civil penalty of up to $10,000 per violation. (Labor Code §1102.5)
2. Provides aggrieved workers with the ability to seek relief through civil action, including injunctive relief. When weighing injunctive relief, the court must consider the chilling effect of the alleged violation on the ability of other workers to assert their rights.
   (Labor Code §§ 1102.6, 1102.61, & 1102.62)
3. Requires local mental health director to appoint, or contract for the services of, one or more county patients’ rights advocates. The duties of these advocates includes:
4. Receiving and investigating complaints from or concerning recipients of mental health services residing in licensed health or community care facilities regarding abuse, unreasonable denial or punitive withholding of rights.
5. Monitoring mental health facilities, services and programs for compliance with statutory and regulatory patients’ rights provisions.
6. Providing training and education about mental health law and patients’ rights to mental health providers.
7. Ensuring that recipients of mental health services in all licensed health and community care facilities are notified of their rights.
8. Exchanging information and cooperate with the patients’ rights program.

(Welfare and Institutions Code §5520)

This bill:

1. Extends the anti-retaliation, whistleblower protections described above to county patients’ rights advocates.
2. Makes minor and technical conforming changes.

COMMENTS

1. Need for this bill?

The author states the following:

“Labor Code (§1102.5) currently protects employees from retaliation; if an employee needs to speak out against an employer for a policy violation, Labor Code states that their employer cannot prevent them, nor can they retaliate against them. However, this section does not apply to contracted employees, who would thereby be risking the security of their contracts if they were to disclose that an employer is breaking the law.

There have been many reports of retaliation against contracted Patients’ Rights Advocates (PRAs) who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since a PRA’s job exists to govern the wellbeing of patients, and not the hospitals in which they reside, this bill seeks to protect those individuals and the populations whom they serve. This bill serves to protect Patients’ Rights Advocates (PRA) who work as independent contractors with state and local government from retaliation, in the event that they must disclose that their contracted employer violated a policy.

… AB 333 will provide a layer of whistleblower protection not currently seen by employees in contracted positions, by extending to them the invaluable retaliation protection afforded by Labor Code §1102.5.”

2. Proponent Arguments:

Mental Health America of California, writing in support of the bill, argues the following:

“Patients’ Rights Advocates (PRAs) conduct some of the most challenging and vital work in California’s mental health system by protecting the rights of those with mental illness, who are some of our most vulnerable community members. PRAs have a wide range of responsibilities, from educating patients about their legal rights and representing those patients in legal hearings, to local and state-level advocacy.

In order to effectively advocate for patients, PRAs must be able to respond to patient complaints of abuse or neglect, and reach out to state regulatory officials, when necessary, to report a violation. Sometimes this means they must file complaints against county facilities, yet they are directly hired by the county. In such cases, while county employees benefit from whistleblower protections under the law, PRAs who are hired as independent contractors are not protected from retaliation from their employer. A survey conducted in 2017 by the California Behavioral Health Planning Council (CBHPC) and the California Association of Mental Health Patients’ Rights Advocates (CAMHPRA) found that a concerning number of PRAs reported that fear about their employment effects how strongly they advocate against practices and policies they believe violate their clients’ rights. Furthermore, written comments from several PRAs expressed serious concerns about retaliation.

MHAC believes that AB 333 will support the work of PRAs and ultimately protect the patients for whom they advocate. While PRAs are one critical example of a position commonly held by independent contractors, this bill will protect others in similar positions as well by extending whistleblower protections to all independent contractors working in watchdog roles within state and local government facilities.”

3. Double Referral to Senate Judiciary Committee:

Should the Committee approve this bill, AB 333 will be referred to the Senate Judiciary Committee.

4. Opponent Arguments:

None on file.

5. Prior Legislation:

AB 2317 (Eggman) was nearly identical to this bill. AB 2317 was vetoed by Governor Brown.

AB 403 (Melendez) Chapter 2, Statutes of 2018 known as the “Legislative Employee Whistleblower Protection Act,” prohibits a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee’s exercise of the right to make a protected disclosure.

SUPPORT

California Association of Professional Scientists

California Behavioral Health Planning Council

California Employment Lawyers Association

Consumer Attorneys of California

Disability Rights California

Mental Health Association in California

National Association of Social Workers, California Chapter

Oakland Privacy

OPPOSITION

None received.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 333

Author:(Eggman)

As Amended Ver:May 17, 2019

Majority vote

SUMMARY:

Extends whistleblower protections afforded to employees to county patients' rights advocates appointed or under contract to provide services relating to mental health advocacy.

Major Provisions

See summary.

COMMENTS:

While the Labor Code protects employee whistleblowers from retaliation, it does not protect contracted employees working for state and local government, and more specifically, patients' rights advocates (PRAs).

According to the Author:

The author describes the work of PRAs as providing "oversight of county mental health facilities and receiving and investigating complaints at those facilities. Occasionally, PRAs may need to contact licensing or other state regulatory officials over egregious and intractable patients' rights violations at county facilities."

The author further states that there have been many reports of retaliation against PRAs "who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since a PRA's job exists to govern the wellbeing of patients, and not the hospitals in which they reside, this bill seeks to protect those individuals and the populations whom they serve."

Arguments in Support:

The California Association of Mental Health Patients' Rights Advocates, a sponsor of the bill, argues the need for the bill, stating that "AB 333 will support the work of PRAs and ultimately protect the patients for whom they advocate."

Arguments in Opposition:

No known opposition on file.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee: Ongoing annual special fund costs in excess of $500,000 for the Division of Labor Standards Enforcement (DLSE) to respond to, and investigate, additional retaliation claims.

VOTES:

ASM LABOR AND EMPLOYMENT: 7-0-0

YES: Kalra, Flora, Carrillo, Diep, Gonzalez, Bonta, Luz Rivas

ASM APPROPRIATIONS: 13-0-5

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bigelow, Brough, Diep, Fong, Obernolte

UPDATED:

VERSION: May 17, 2019

CONSULTANT: Megan Lane / L. & E. / (916) 319-2091 FN: 0000541

Date of Hearing: March 20, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 333

Author:(Eggman) – As Introduced Ver:January 31, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill extends existing whistleblower protections to state and local independent contractors tasked with receiving and investigating complaint from facilities, services and programs operated by state and local governments.

FISCAL EFFECT:

Ongoing annual special fund costs in excess of $900,000 for the Division of Labor Standards Enforcement (DLSE) to respond to, and investigate, additional retaliation claims.

COMMENTS:

1. Current whistleblower protections. The Labor Code provides certain retaliation protections to employees and job applicants who provide information about a violation of a law to a public body. Specifically, employers may not prevent a whistleblower from exercising their labor rights or retaliate against them for doing so, and a whistleblower who believes they have been retaliated against can file a complaint with the Labor Commissioner. The Retaliation Investigation Unit will review the complaint and determine if further investigation is merited. Upon completion of the investigation, an employer may be required to reinstate the whistleblower’s employment and work benefits, pay lost wages and take other step necessary to comply with the law.

Importantly, these protections apply only to employees and not to individuals contracting with a private or public employer.

1. Purpose. California law requires each county to assign a Patients’ Rights Advocate (PRA) to represent clients’ rights and interests through direct assistance and training. PRAs typically contract with the government employer and thus do not have whistleblower protections. According to the author, AB 333 will help PRAs effectively advocate for patients. The author notes that PRAs who face retaliation do so because of the advocacy work for which they were hired.
2. Scope of this bill and recent legislation. AB 333 is intended to provide whistleblower protections to PRAs. However, as currently drafted, this bill could apply to other types of state and local contractors.

AB 333 is similar to the introduced version of AB 2317 (Eggman), of the 2017-18 Legislative Session. AB 2317 aimed to extend anti-retaliation protections to PRAs but the bill was initially drafted to apply a larger group of state and local government contractors. As a result, AB 2317 was amended in this committee to more narrowly apply to PRAs. AB 2317 was vetoed by the governor, whose veto message stated:

The bill would expand the Labor Commissioner's jurisdiction beyond the typical employer-employee relationship into larger contract disputes between independent contractors and local governments.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: March 6, 2019

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

ABPCA Bill Id:AB 333 (

Author:Eggman) – As Introduced Ver:January 31, 2019

SUBJECT: Whistleblower protection: state and local independent contractors

SUMMARY: Extends whistleblower protections afforded to employees to independent contractors and contracted entities working for state and local government who are tasked with receiving and investigating complaints from facilities, services, and programs operated by state and local government.

EXISTING LAW:

1. Prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties.
2. Provides that a violation of the anti-retaliation provision is a crime.

FISCAL EFFECT: Unknown

COMMENTS: According to the author, while the Labor Code protects employee whistleblowers from retaliation, it does not protect contracted employees working for state and local government, and more specifically, patient rights advocates (PRAs). The author describes the work of PRAs as providing “oversight of county mental health facilities and receiving and investigating complaints at those facilities. Occasionally, PRAs may need to contact licensing or other state regulatory officials over egregious and intractable patients’ rights violations at county facilities.”

The author further states that there have been many reports of retaliation against PRAs “who were only guilty of conducting the advocacy work for which they were hired. That retaliation could come in the form of a contract not being renewed, and there are no whistleblower protections in place for them. Since a PRA’s job exists to govern the wellbeing of patients, and not the hospitals in which they reside, this bill seeks to protect those individuals and the populations whom they serve.”

The California Association of Mental Health Patients’ Rights Advocates, a sponsor of the bill, argues the need for the bill, stating that “AB 333 will support the work of PRAs and ultimately protect the patients for whom they advocate. While PRAs are one critical example of a position held by independent contractors and contracted entities, this bill will protect others in similar positions by extending whistleblower protections to all independent contractors working in watchdog roles over state and local government programs, services, and facilities.”

Scope of the Bill

Last year, a similar version of this bill, AB 2317 (Eggman) was vetoed by Governor Brown. In his veto message, Governor Brown expressed concern stating, “The bill would expand the Labor Commissioner's jurisdiction beyond the typical employer-employee relationship into larger contract disputes between independent contractors and local governments.” As currently drafted, this measure applies to all independent contractors and contracted entities working for state and local government who are tasked with receiving and investigating complaints from, facilities, services, and programs. The author’s arguments in support of the bill, however, focus on the frequency and impact of retaliation on patient rights advocates. The author may want to consider clarifying the type of contracted employee encompassed by this bill.

Prior Legislation

AB 403 (Melendez) Chapter 2, Statutes of 2018 known as the “Legislative Employee Whistleblower Protection Act,” prohibits a Member of the Legislature or legislative employee, from interfering with or retaliating against a legislative employee’s exercise of the right to make a protected disclosure.

AB 2317 (Eggman) of 2018 was virtually identical to this bill. The measure was vetoed by Governor Brown.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Mental Health Patients' Rights Advocates (CoSponsor)
California Behavioral Health Planning Council (CoSponsor)
California Employment Lawyers Association
Consumer Attorneys of California

Law Foundation Of Silicon Valley
Oakland Privacy

Opposition

None on file.

Analysis Prepared by: Megan Lane / L. & E. /