Division 4.7 PROTECTION AND ADVOCACY
AGENCY
Chapter 1 DEFINITIONS
WELFARE AND INSTITUTIONS CODE
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§ 4900. Definitions
(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 WELFARE AND INSTITUTIONS CODE
§ 4902 Page 269 * * * 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.
