By Mark Fefer
A Sacramento Superior Court judge ruled in September that the California Department of Public Health must release uncensored copies of dozens of reports involving misconduct at facilities for the developmentally disabled.
About 1,700 severely developmentally disabled people in California live in long-term health facilities regulated by the state’s Public Health department and operated by the Department of Developmental Services. These patients have conditions such as cerebral palsy and severe autism.
In 2011, California Watch—an initiative of the nation’s oldest nonprofit investigative news organization, the Center for Investigative Reporting—published a series of stories detailing failures on the part of those charged with protecting the patients at these facilities. As part of that reporting project, and to find out more, California Watch filed a public records request, seeking a decade’s worth of records relating to citations issued by the state against a half-dozen facilities.
In June 2011, the state Department of Public Health released 169 pages of documents—but blacked out nearly every word.
Lawyers for the state contended that because medical services provided to the developmentally disabled are confidential under California law, the reports had to be “aggressively redacted” before being released.
In response, San Francisco partner Duffy Carolan filed a pro bono lawsuit on behalf of California Watch. She argued that the state’s Long-Term Care, Health, Safety and Security Act of 1973, under whose provisions the citations are issued, mandates that any citations issued to facilities found to be in violation of the law be posted or otherwise made accessible to the public.
She said that the Long-Term Care Act was a special exception to California’s general rule of confidentiality, and that while the names of patients affected by the alleged violations are not open to public inspection, the underlying facts giving rise to citations are required to be available to the public.
These arguments persuaded Judge Timothy Frawley. In September, he ordered the Department of Public Health to produce the 55 citations at issue “without redaction,” except as to the names of individuals other than investigating officers. And he granted declaratory relief in favor of California Watch so that the Department will be required to make the citations public going forward.
According to California Watch, 35 of the reports appear to involve abuse of patients, and the rest outline medical care and neglect violations from 2007 to mid-2011. They detail incidents in which the centers did not protect patients from harm, failed to provide competent medical care, or violated patients’ rights.
“Access to the citations is key to the public’s ability to monitor the Department’s oversight of these state-run facilities and the quality of care provided this vulnerable population,” Carolan said. “It will no longer be possible for the Department to keep secret the substance of citations like the one recently issued to the Sonoma Developmental Center, where 11 patients in a 27-patient unit were found to have burn wounds from being shot with a Taser gun by a caregiver.”