(a) The definitions contained in this section govern the construction of this division, unless the context requires otherwise. These definitions do not alter or impact the definitions or other provisions of the Elder Abuse 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 any of the following:

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(1) 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 1326.19 of Title 45 of the Code of Federal Regulations.

(2) An act, or failure to act, that would constitute abuse as that term is defined in Section 15610.07 of this code or § 11165.6 of the Penal Code.

(3) An act, or failure to act, that was performed, or not performed, knowingly, recklessly, or intentionally, and that caused, or may have caused, injury or death to an individual with disabilities, which includes, but is not limited to, verbal, nonverbal, mental, and emotional harassment; rape or sexual assault; striking; the use of excessive force when placing the individual in bodily restraints; the use of bodily or chemical restraints that is not in compliance with federal and state laws and regulations, or any other practice that is likely to cause immediate physical or psychological harm or result in long-term harm if the practice continues.

(4) Any other violation of an individual’s legal rights determined, in its discretion, by the protection and advocacy agency to be abuse, including, but not limited to, subjecting an individual to significant financial exploitation.

(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. A “complaint” includes, but is not limited to, any report or communication, whether formal or informal, or written or oral, received by the protection and advocacy agency, including, but not limited to, media accounts, newspaper articles, electronic communications, and telephone calls, including anonymous telephone calls, from any source alleging abuse or neglect of an individual with a disability.

(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 federal Americans with Disabilities Act of 1990 (42 U.S.C. § 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 (j) or (l) of § 12926 of the Government Code.

(e) “Facility” or “program” means a public or private facility, program, or service provider providing services, support, care, or treatment to persons with disabilities, even if only on an as-needed basis or under contractual arrangement. “Facility,” “program,” or “service provider” 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 facility used to house or detain persons for the purpose of civil immigration proceedings, 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 § 1503.5 of the Health and Safety Code. The term also includes, but is not limited to, a public or private school or other institution or program providing education, training, habilitation, recreation, therapeutic, or residential services to persons with disabilities.

(f) (1) (A) “Guardian,” “conservator,” “limited conservator,” or “legal representative” means a person, including the parent of a disabled minor who has legal custody of the minor, appointed by a state court or an authorized agency, as appropriate, or otherwise authorized by law, and regularly reviewed by the appointing court or agency, if required by law, to represent and advocate for the legal rights and interests of a person with a disability.

(B) These terms do not include a person acting solely as a representative payee, a person acting solely to handle financial matters, an executor or administrator of an estate, an attorney or other person acting on behalf of an individual with a disability solely in individual legal matters, or an official or the official’s designee who is responsible for the provision of treatment, services, supports, or other assistance to an individual with a disability.

(2) With respect to an individual described under paragraph (2) of subdivision (i), the guardian, conservator, limited conservator, or legal representative is the person with the legal authority to consent to health or mental health care or treatment on behalf of the individual.

(3) With respect to an individual described under paragraph (1) or (3) of subdivision (i), the guardian, conservator, limited conservator, or legal representative is the person with the legal authority to make all decisions on behalf of the individual.

(g) “Neglect” means any of the following:

(1) 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 1326.19 of Title 45 of the Code of Federal Regulations.

(2) A negligent act, or omission to act, that would constitute neglect as that term is defined in subdivision (b) of Section 15610.07 of this code or § 11165.2 of the Penal Code.

(3) A negligent act, or omission to act, by an individual responsible for providing services, supports, or other assistance that caused, or may have caused, injury or death to an individual with a disability or that placed an individual with a disability at risk of injury or death, and includes, but is not limited to, the failure to establish or carry out an appropriate individual program plan or treatment plan, which includes a discharge plan; provide adequate nutrition, clothing, or health care to an individual with a disability; or provide a safe environment, which may include failing to maintain an adequate number of trained staff or failing to take appropriate steps to prevent self-abuse, harassment, or assault by a peer.

(h) “Probable cause” to believe that an individual has been or may be subject to abuse or neglect or that the health or safety of the individual is in serious and immediate jeopardy, 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 their 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 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 federal Americans with Disabilities Act of 1990 (42 U.S.C. § 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 (j) or (l) of § 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, including, but not limited to, 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 facility, program, or service provider that respects privacy interests and honors requests to terminate an interview, and that does not jeopardize the physical health or safety of facility, program, or service provider staff, individuals with disabilities, service recipients, or protection and advocacy agency staff. Except as otherwise required by law, the protection and advocacy agency shall not be required to provide the name or other identifying information regarding the individual with a disability or staff with whom it plans to meet or justify or explain its interactions with those persons. Upon request of facility staff, the protection and advocacy agency shall provide the specific location or locations at a facility where it intends to monitor, inspect, or observe conditions and meet and communicate with residents or staff.

(Amended by Stats. 2019, Ch. 548, Sec. 1. (SB 398) Effective January 1, 2020.)