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SB-1190 Eugenics Sterilization Compensation Program.(2017-2018)

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Date Published: 04/03/2018 09:00 PM
SB1190:v98#DOCUMENT

Amended  IN  Senate  April 03, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1190


Introduced by Senator Skinner
(Principal coauthor: Assembly Member Limón)
(Coauthor: Senator Beall)

February 15, 2018


An act to add Chapter 1.5 (commencing with Section 24200) to Division 20 of the Health and Safety Code, relating to victim compensation, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


SB 1190, as amended, Skinner. Eugenics Sterilization Compensation Program.
Existing law prohibits sterilization of a person with developmental disabilities without his or her consent, if he or she has the ability to consent to sterilization, as defined, unless a limited conservator authorized to consent to the sterilization of an adult with a developmental disability is appointed and obtains court authorization to consent to the sterilization, as specified. Existing law prohibits sterilization for the purpose of birth control in county jails and state prison facilities, as specified.
Existing law provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board from the Restitution Fund, a continuously appropriated fund consisting of General Fund moneys, for specified losses suffered as a result of those crimes. Existing law sets forth eligibility requirements and specified limits on the amount of compensation the board may award, and requires applications for compensation to be verified under penalty of perjury. Under existing law, certain property is exempt from enforcement of money judgments, including benefits from a disability or health insurance policy or program.
This bill would establish the Eugenics Sterilization Compensation Program, to be implemented by an unspecified state department, for the California Victim Compensation Board for the purpose of providing victim compensation to any survivor of state-sponsored sterilization conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979. The bill would require the department, board, in consultation with community-based organizations, to conduct outreach to locate any qualified recipient, as defined, notify him or her that person of the process to apply for victim compensation, and review and verify all applications for victim compensation, as specified. The bill would require the department board to keep confidential and not disclose to the public any record pertaining to an individual’s application for victim compensation and any record pertaining to the department’s or the board’s verification of the application. The bill would appropriate an unspecified amount from the General Fund to the department board for the purposes of paying victim compensation to qualified recipients and administering and implementing the program, as specified. The bill would exempt victim compensation payments from, among other things, being considered taxable income for state tax purposes or being subject to enforcement of a money judgment, as specified.
The bill would require the State Department of State Hospitals and the State Department of Developmental Services, in consultation with stakeholders, to establish markers or plaques at designated sites that acknowledge the compulsory sterilization of thousands of people. The bill would also require the unspecified state department, board, in consultation with stakeholders, to develop a traveling historical exhibit and other educational opportunities about eugenics laws that existed in the State of California between 1909 and 1979 and the far-reaching impact they had on California residents.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature hereby finds and declares all of the following:
(a) In 1909, California passed the nation’s third sterilization law (Chapter 720 of the Statutes of 1909). Between 1909 and 1979, more than 20,000 Californians were sterilized, which made up more than one-third of the 60,000 men and women sterilized nationwide in 32 states during that era and more than the amount of people sterilized in the next top four states combined.
(b) California’s eugenics laws, which were revised in 1913 (Chapter 363 of the Statutes of 1913) and 1917 (Chapters 489 and 776 of the Statutes of 1917), authorized medical superintendents in state homes and state hospitals to perform “asexualization” on patients (vasectomies for men and salpingectomies for women) identified as “afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature.”
(c) California maintained 12 state homes and state hospitals that housed thousands of patients who were committed by the courts, family members, and medical authorities. Although many families, patients, and court officials signed consent forms for sterilization, that action would not meet today’s criteria for consent because in some institutions sterilization was a precondition for release, and true voluntariness and autonomy was not possible in the context in which the consent forms were signed.
(d) There was little to no oversight of California’s sterilization program, which was implemented during a time in United States history when many reformers believed that sterilization was an important instrument of public health protection that would reduce the number of “defectives” in society, result in cost savings for welfare programs, and only allow “fit” people to become parents. The authority granted both to state agencies and medical experts during this era meant that sterilization proceeded with little contestation or pushback from the health establishment or legal system.
(e) While the law did not target specific racial or ethnic groups, in practice, labels of “mental deficiency” and “feeblemindedness” were applied disproportionately to racial and ethnic minorities, people with actual and perceived disabilities, poor people, and women. During the height of the program, between 1919 and 1952, women and girls were 14 percent more likely to be sterilized than their male counterparts, male men and boys. Male Latino patients were sterilized at 2.2 times the rate of non-Latino male institutional patients, 23 percent more likely to be sterilized than non-Latino male patients, and female Latino Latina patients were sterilized at 4.2 times the rate of non-Latino female patients. 59 percent more likely to be sterilized than non-Latina female patients.
(f) On March 11, 2003, Governor Gray Davis apologized for California’s eugenic sterilization program. Attorney General Bill Lockyer issued an apology on the same day.
(g) On June 30, 2003, the Senate of the State of California passed a resolution expressing “profound regret over the state’s past role in the eugenics movement and the injustice done to thousands of California men and women,” addressing “past bigotry and intolerance against the persons with disabilities and others who were viewed as ‘genetically unfit’ by the eugenics movement,” recognizing that “all individuals must honor human rights and treat others with respect regardless of race, ethnicity, religious belief, economic status, disability, or illness,” and urging “every citizen of the state to become familiar with the history of the eugenics movement, in the hope that a more educated and tolerant populace will reject any similar abhorrent pseudoscientific movement should it arise in the future.”
(h) While not eligible for victim compensation under the Eugenics Sterilization Compensation Program, the State of California recognizes that further involuntary and systematic sterilization abuse occurred during the following periods:
(1) Between 1965 and 1975, at least 240 women who delivered babies at the LA County University of Southern California Medical Center were subjected to nonconsensual postpartum tubal ligations. These procedures were carried out overwhelmingly on Mexican-origin mothers who were not informed that they were being sterilized, were coerced into signing sterilization forms, or were misled into giving their signatures.
(2) Between 2006 and 2010, 144 female inmates in the California state prison were sterilized without proper authorization. A state audit found that the women had been sterilized without adherence to required protocol and that “deficiencies in the informed consent process” had occurred in 39 of these cases. As a response to this, Senate Bill 1135 (Chapter 558 of the Statutes of 2014) was signed into law in 2014, prohibiting sterilizations in the California state prison.

SEC. 2.

 Chapter 1.5 (commencing with Section 24200) is added to Division 20 of the Health and Safety Code, to read:
CHAPTER  1.5. Eugenics Sterilization Compensation Program

24200.
 (a) There is hereby established the Eugenics Sterilization Compensation Program. Program, to be administered by the California Victim Compensation Board.
(b) The purpose of the program is to provide victim compensation to any survivor of state-sponsored sterilization conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979.
(c) For purposes of this chapter, an individual is a “qualified recipient” for victim compensation if all of the following the following definitions apply:
(1) “Board” means the California Victim Compensation Board.
(2) “Program” means the Eugenics Sterilization Compensation Program.
(3) “Qualified recipient” means an individual who is eligible for victim compensation pursuant to this chapter by meeting all of the following requirements.

(1)

(A) The individual was sterilized pursuant to eugenics laws that existed in the State of California between 1909 and 1979.

(2)

(B) The individual was sterilized while he or she was a patient at any of the following institutions:

(A)

(i) Agnews State Hospital.

(B)

(ii) Atascadero State Hospital.

(C)

(iii) Camarillo State Hospital.

(D)

(iv) DeWitt State Hospital.

(E)

(v) Mendocino State Hospital.

(F)

(vi) Modesto State Hospital.

(G)

(vii) Napa State Hospital.

(H)

(viii) Norwalk State Hospital.

(I)

(ix) Pacific Colony.

(J)

(x) Patton State Hospital.

(K)

(xi) Sonoma State Home.

(L)

(xii) Stockton State Hospital.

(3)

(C) The individual is alive as of January 1, 2019.

24201.

(a)An unspecified state department shall implement the program.

(b)The department,

24201.
 (a) The board, in consultation with community-based organizations, shall do all of the following to implement the program:
(1) Conduct outreach to locate any qualified recipient and notify him or her of the process to apply for victim compensation. The department board may use various methods to conduct outreach, including, but not limited to, radio announcements, social media posts, and flyers to libraries, social service agencies, long-term care facilities, group homes, supported living organizations, and regional centers.
(2) Review and verify all applications for victim compensation.
(A) The department board shall consult the records of the State Archives to verify the identity of any individual claiming he or she was sterilized during the period of 1919 to 1952.
(B) The department board shall consult the records of the State Department of State Hospitals and the State Department of Developmental Services to verify the identity of any individual claiming he or she was sterilized during the period of 1953 to 1979.
(C) The department board shall include an area on the application for a claimant to voluntarily report demographic information about gender, race, ethnicity, disability, sexual orientation, and gender identity.
(3) Oversee the appeal process.

(c)

(b) (1) The department board shall annually submit a report to the Legislature including the number of applications submitted, the number of applications approved, the number of applications denied, and the number of claimants paid, the number of appeals submitted and the result of those appeals, and the total amount paid in compensation.
(2) The report shall also include data on claimants’ demographic information, including gender, race, ethnicity, disability, sexual orientation, and gender identity, as voluntarily provided on a claimant’s application form. The report shall also include data about the age a claimant was sterilized and the hospital where sterilization occurred, as verified by the department. All demographic information shall be reported in aggregate and the names of individual claimants shall be kept confidential.
(3) The report shall also include data on outreach methods or processes used by the department board to reach potential claimants.
(4) The report shall be submitted in compliance with Section 9795 of the Government Code.

(d)

(c) (1) The department board shall develop and implement procedures to receive and process applications for victim compensation under this program no later than June 30, 2019.
(2) The department board shall implement the outreach plan described in paragraph (1) of subdivision (b) beginning on July 1, 2019.

24202.
 The sum of ____ dollars ($____) is hereby appropriated from the General Fund to the department, board and shall be made available for expenditure by the department, board without regard to fiscal year, as follows:
(a) At least 90 percent of the amount shall be used for the purpose of paying victim compensation to qualified recipients pursuant to Section 24203.
(b) Up to 10 percent of the amount may be used for the purpose of administering and implementing the program.

24203.
 (a) (1) An individual seeking victim compensation pursuant to the program shall submit an application to the department board beginning on July 1, 2019, and no later than July 1, 2021.
(2) The department board shall screen the application and accompanying documentation for completeness. If the department board determines that an application is incomplete, it shall notify the claimant or his or her lawfully authorized representative that the application is not complete in writing by certified mail no later than seven calendar days following the screening of the application. The notification shall specify the additional documentation required to complete the application. If the application is incomplete, the claimant shall have 60 calendar days from the receipt of the notification to submit the required documentation. If the required documentation is not received within 60 calendar days, the application will be closed and the claimant shall submit a new application if he or she seeks victim compensation pursuant to the program.
(3) The department board shall not consider an application or otherwise act on it until the department board determines the application is complete with all required documentation.
(4) If a claimant receives an adverse claim decision, the claimant may file an appeal to the department board within 30 days of the notice of decision. The department board shall make a determination on the appeal within 30 days of the date of the appeal and notify the claimant of the decision. A claimant who is successful in his or her appeal shall receive compensation in accordance with subdivision (b).
(b) The department board shall award victim compensation to a qualified recipient pursuant to the following payment schedule:
(1) A claimant who is determined to be a qualified recipient by the department board shall receive an initial payment within 60 days of the department’s board’s determination. This initial payment shall be calculated by dividing the funds appropriated in subdivision (a) of Section 24202 by the anticipated number of qualified recipients as determined by the department, board, and then dividing that dollar amount in half.
(2) After exhaustion of all appeals arising from the denial of an individual’s application, but by no later than October 1, 2021, the department board shall send a final payment to all qualified recipients. This final payment shall be calculated by dividing the remaining balance of funds appropriated in subdivision (a) of Section 24202 by the total number of qualified recipients.

(c)The department and the Controller shall collaborate to ensure the victim compensation is provided to qualified recipients as soon as practicable.

24204.
 (a) A qualified recipient may assign his or her victim compensation to a trust established for his or her benefit.
(b) (1) The department board shall include a provision on the application for victim compensation under this program that a claimant is authorized to designate a beneficiary for his or her victim compensation.
(2) If the claimant dies during the pendency of his or her application, or after the department board determines that he or she is a qualified recipient, the department board shall award the victim compensation to the named beneficiary.
(3) If the claimant did not name a beneficiary, the victim compensation shall remain with the department board for expenditure in accordance with subdivision (b) of Section 24203.
(c) An application may be made by an individual’s legally authorized representative if the individual satisfies the criteria for a qualified recipient as specified in subdivision (c) of Section 24200.

24205.
 The State Department of State Hospitals and the State Department of Developmental Services, in consultation with stakeholders, shall establish markers or plaques at designated sites that acknowledge the compulsory sterilization of thousands of people.

24206.
 The department board shall develop, in consultation with stakeholders, a traveling historical exhibit and other educational opportunities about eugenics laws that existed in the State of California between 1909 and 1979 and the far-reaching impact they had on California residents.

24207.
 The department board shall keep confidential and not disclose to the public any record pertaining to either an individual’s application for victim compensation and any record pertaining to the department’s or the board’s verification of the application, including, but not limited to, claimant names and demographic information submitted on the application.

24208.
 (a) Notwithstanding any other law, the payment made to a qualified recipient pursuant to this program shall not be considered any of the following:
(1) Taxable income for state tax purposes.
(2) Income or resources for purposes of determining the eligibility for, or amount of, any benefits or assistance under any state or local means-tested program.
(3) Income or resources in determining the eligibility for, or the amount of, any federal public benefits as provided by the Treatment of Certain Payments in Eugenics Compensation Act (42 U.S.C. Sec. 18501).
(4) Community property for the purpose of determining property rights under the Family Code and Probate Code.
(b) Notwithstanding any other law, the payment made to a qualified recipient pursuant to this program shall not be subject to either of the following:
(1) Enforcement of a money judgment under state law.
(2) A money judgment in favor of the State Department of Health Care Services for any period of time in which federal law or guidance has not been issued by the federal Centers for Medicare and Medicaid Services requiring the department to recover funds from the payments pursuant to this chapter for reimbursement of qualifying Medi-Cal expenditures. Following the death of a qualified recipient, both of the following shall apply as long as the federal law or guidance has not been issued:
(A) The state shall not seek recovery pursuant to Section 14009.5 of the Welfare and Institutions Code of any amount of the payment under the state’s Medicaid plan established under Title XIX of the Social Security Act.
(B) The state shall not file a claim for the payment under Section 529A(f) of the Internal Revenue Code.

SEC. 3.

 The Legislature finds and declares that Section 2 of this act, which adds Section 24207 to the Health and Safety Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
This act strikes an appropriate balance between the public’s right to access information and the need to protect personal information of survivors of state-sponsored sterilization conducted pursuant to eugenics laws that existed in the State of California between 1909 and 1979.