BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 1192 A
Assemblymember Evans B
As Amended July 3, 2007
Hearing Date: July 10, 2007 1
Welfare & Institutions Code 1
GMO:rm 9
2
SUBJECT
Developmental Services: Consumer Abuse Registry
DESCRIPTION
The bill would create a registry of providers or other
persons who have a substantiated history of abuse of
persons with developmental disabilities, and make the
registry available to regional centers, consumers and their
families, guardians, and conservators.
The bill would direct the department (to be designated by
the Secretary of Human Services) to adopt a "substantiation
protocol" for adding a provider or person to the registry
and a "release protocol" for making the registry
information available to regional centers, consumers and
their families, guardians, and conservators. It would
require the department to consult with program stakeholders
on a specified list, including service providers, district
attorneys, civil rights advocates, licensing agencies,
advocates, and families of persons with disabilities.
The bill would immunize from liability any person or entity
who participates in the development of the registry or who
uses and relies on the information contained in the
registry.
Finally, the bill has a delayed effective date of July 1,
2009.
(more)
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(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
In California, over 220,000 individuals with developmental
disabilities receive care in residential and day programs,
independent and supported living, and at-home, private
care. (Department of Social Services statistics, found at
www.dds.ca.gov/factsstats/cmf.cfm .) Many studies have shown
that these individuals are two to five times more likely to
experience severe, long-lasting, and repeated abuse than
the non-disabled, while living in supposedly safe
environments. Further, these studies show that 44% of
abusers make contact with their victims as unlicensed,
direct care workers. (Cf. Sobsey, D. (1994) Violence and
abuse in the lives of people with disabilities: The end of
silent acceptance? Baltimore: Paul H. Brookes Publishing
Co.)
Under the Elder and Dependent Adult Civil Protection Act
(EADACPA), abuse of a developmentally disabled person can
include not only physical, verbal, and financial abuse, but
also neglect, abandonment, abduction, isolation, and
deprivation of needed goods and services. In 2003, several
groups issued a report on the abuse and neglect of persons
with disabilities and concluded that persons with
developmental disabilities are victimized at higher rates
than other citizens, are at higher risk for
re-victimization, are abused for longer periods of time,
are victimized in their residences by persons they know and
who are responsible for their services and support, and are
inadequately educated to recognize and resist abusive
situations. The group, composed of Protection and Advocacy
Inc., the State Council for Developmental Disabilities at
UCLA, and the University of Southern California's
University Affiliated Program, stated that the situation is
a serious public policy issue warranting the highest level
of attention.
Those who support this bill point to the high incidence of
abuse in the developmentally disabled population and to the
sad but true fact that many abusive caregivers are able to
move from agency to agency, or county to county, and
continue to perpetuate their abusive behavior. The lack of
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a central clearinghouse or registry where information about
substantiated abusers may be shared and/or made available
to persons about to hire them, whether they are the
developmentally disabled person, the family, the guardian,
conservator, or the local agency that is providing
services, is a problem that needs to be addressed now,
states the sponsor of AB 1192, Registry to End Abusive
Caregiver Hiring (REACH) Project.
This bill would establish a registry and the procedure for
a state agency to add persons with substantiated history of
abuse to the registry, and make the registry available to
specified parties.
CHANGES TO EXISTING LAW
1. Existing law provides for regional centers, which are
private not-for-profit corporations, to manage the
community placement of developmentally disabled persons
in the state under the State Department of Developmental
Services (DDS), and the operation of five developmental
centers, which are state hospitals, to care for those
developmentally disabled individuals whose care requires
more than can be provided within the community.
Existing law establishes the protection and advocacy
agency, which is authorized to investigate any incident
of abuse or neglect of any person with a disability that
is reported to the agency, or if the agency determines
that there is probable cause to believe abuse or neglect
occurred.
Existing law establishes the procedure for the reporting
of abuse and/or neglect of elders and dependent adults,
and of children, by mandatory and non-mandatory
reporters.
This bill would require every regional center and every
provider of services to consumers with developmental
disabilities to report any evidence of abusive treatment
of a consumer, to a department designated by the
Secretary of the California Health and Human Services
Agency.
This bill would require the designated department to
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establish a process for investigating and substantiating
reports of abusive treatment of developmentally disabled
persons.
2. Existing law establishes in the Department of Justice
the Child Abuse Central Index, where incidents of child
abuse are reported by mandated and non-mandated reporters
and indexed if the child abuse reports are subsequently
"substantiated" or deemed "inconclusive" after
investigation.
This bill would establish a mechanism for the department
designated by the Secretary of Health and Human Services
to receive reports of abusive treatment of
developmentally disabled persons and to investigate and
substantiate the report of abusive treatment.
This bill would establish in the designated department a
registry of providers or other persons who have a
substantiated history of abuse of persons with
developmental disabilities, and would require the
department to adopt a "substantiation protocol" for
adding a person or provider to the registry and a
"release protocol" for making the information in the
registry available to consumers and their families,
guardians, conservators, and to regional centers.
This bill would require the department to consult with
program stakeholders, including representatives from
specified groups and agencies, in the development of the
protocols required.
This bill would provide immunity from liability to any
person or entity who participates in the development of
the registry or who uses or relies on the registry.
This bill would require the designated department to
adopt implementing regulations by July 1, 2009.
COMMENT
1. Stated need for the bill
According to the author:
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There is no state registry to protect the
developmentally disabled by tracking the
individuals who use caregiver positions to abuse
their clients. A state registry is needed because
abusive caregivers can move from one community to
the next and continue their crimes.
?Developmentally disabled persons face a higher
risk of abuse because they are often segregated
from the mainstream population and are heavily
dependent on others for their basic needs.
According to a report prepared by REACH [the
sponsor of AB 1192], arrests for the abuse of
developmentally disabled individuals is rare,
convictions are tracked through law enforcement
systems, most instances of abuse are not formally
reported to law enforcement, and most instances of
abuse are handled administratively as employment
issues.
2. Author's amendments to be offered in committee
The author has proposed amendments to AB 1192 to ensure
that the registry created by the bill would not suffer
from the same infirmities as the current Child Abuse
Central Index, which is a registry of persons and
providers with substantiated reports of child abuse. (See
Comment 3.) These amendments would:
A. require the designated department to adopt
additional protocols to:
1) substantiate incidents of reported abuse in
order to add the reported person to the registry;
2) provide an opportunity for appeal prior to
adding a person to the registry;
3) enable a person listed in the registry to
petition for immediate removal from the registry;
and
4) make timely and regular updates to the registry
content;
A. include representatives of county child protective
services and adult protective services agencies in the
list of stakeholders with whom the designated
department would consult in developing the required
protocols;
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C. include child protective services and adult
protective services agencies that are investigating
allegations of abuse or neglect of a child or an elder
or dependent adult in the list of entities to whom the
registry would be available;
D. require the designated department to coordinate and
share information in the registry with the Department
of Public Health, in accordance with adopted
protocols;
E. define "abuse" as used in the bill; and
F. expressly state that the bill would not alter or
amend any existing reporting obligations of any person
or entity.
3. Registry simulates the Child Abuse Central Index
but hopefully cures its defects
The Child Abuse Central Index (CACI) is housed and
administered in the Department of Justice (DOJ).
Generally, reports of child abuse are made by mandated
reporters (doctors, hospitals, schools, law enforcement,
for example), non-mandated reporters, and some reports
are even furnished to the DOJ by the licensing agencies
with jurisdiction over children's services. After DOJ
review, these reports are entered into the CACI if they
are found to be "substantiated" or "inconclusive."
"Unfounded" reports are not entered into the index but
the records are retained by DOJ.
While the CACI has been in place for over ten years and
has helped keep track of child abusers with substantiated
history of child abuse, it has also been a beacon for
criticism and even lawsuits challenging the procedure for
adding and removing persons from the index. The index is
criticized as being incomplete, with many substantiated
incidents never making their way into the index. And,
because it is only an index of an investigative result,
there is no appeal process available to contest the
result, and once entered in the CACI, an entry is almost
impossible to remove. The far-reaching and sometimes
devastating effects of being registered in the CACI on
persons who were subsequently cleared of any wrongdoing
has been the subject of litigation in recent years.
Also, many have argued that innocent persons are listed
on the CACI because the DOJ calls virtually all unproven
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accusations "inconclusive," thus retaining them in the
index rather than calling them "unfounded" and keeping
them off the index.
In 1999 this committee held a hearing on AB 1447
(Granlund) that would have revised the Child Abuse and
Neglect Reporting Act (CANRA) to allow for purging of
specified records, to limit dissemination of information
in the index, to require local agencies submitting
reports to respond to the DOJ in a timely manner, and to
establish a CANRA Task Force to assess the value of the
index and what changes were necessary. The bill was
withdrawn at the request of the sponsor (the Attorney
General) because of the ongoing litigation involving the
CACI law
AB 1192 would establish a registry in the mold of the
CACI but with some improvements, although the process is
still not clear enough.
a. Providers to report evidence of abusive treatment;
department to register abusers with substantiated
history
Under this bill, every regional center, and every
provider of services including health facilities and
community care facilities, would be required to report
any evidence of abusive treatment of a consumer to the
department designated by the Secretary of Health and
Human Services to create and administer the registry.
The department would have to establish a "mechanism"
to investigate and substantiate the report of abusive
treatment.
The department would then be charged with establishing
a registry of "providers or other persons who have a
substantiated history of abuse of persons with
developmental disabilities."
The amendments offered in committee would define
"abuse" for purposes of this registry by importing the
definition in the Welfare and Institutions Code used
for mandated reporting of neglect or abuse. However,
the bill does not contain any provision defining what
a "substantiated history" of abuse would mean and how
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that would be determined. While this is arguably left
to the department-designee to define, it should be
noted that even the CACI law makes reference to the
Penal Code provisions defining "substantiated,"
"inconclusive," and "unfounded" reports for purposes
of determining whether a reported person needs to be
entered into the index.
SHOULD THE TERM "SUBSTANTIATED HISTORY OF ABUSE" BE
DEFINED?
This is especially important because even while
"substantiated" is a clearly defined word in the Penal
Code, "substantiated history" is not. Is the
determination to be whether or not one report of
abusive treatment of a consumer was substantiated, and
therefore the person must be registered? Or is the
substantiation doubly required for a "history" of
abuse, meaning there was more than one incident
reported (creating the history) and if one was
substantiated that is enough to get into the registry?
Should the language be "a person or provider with a
history of substantiated reports of abuse" or "a
person or provider against whom one or more reports of
abuse have been substantiated"?
SHOULD THIS BE CLARIFIED?
b. Due process: appeal prior to being added to
registry, petition for removal from registry
Unlike the CACI, this bill would provide two important
elements of due process to ensure that innocent
persons are given an opportunity to convince the
department that either (1) the report of abusive
treatment is not substantiated by evidence, or (2)
once in the registry, there exists substantial
evidence that could justify being removed from the
registry.
As stated above, the DOJ's administration of the CACI
was severely criticized for its lack of process for
appeal of inclusion in the index, and a lack of
process for removing one's name from the index, even
if one were to be absolved by court judgment. This
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last scenario was the subject of years of litigation
challenging the CACI. Staff does not know whether the
litigation has been resolved.
This bill would direct the department-designee to
adopt rules and regulations that would allow a person
against whom a report of abusive treatment of a
developmentally disabled person was made to appeal a
finding of "substantiated" as to the complaint, prior
to entering the person's name into the registry.
The idea of providing an appeal process seems
incomplete however, because without a timeline for
appealing a finding, or a cap on how long an appeal
process could delay entry into the registery, an
abusive caregiver may be endangering more persons.
One alternative is to provide a "pending appeal"
category of persons in the registry, and require that
the entry be removed from this category within a
specified period after the department makes its ruling
on the appeal.
SHOULD THERE BE MORE GUIDANCE PROVIDED TO THE
DEPARTMENT ON THE APPEAL PROCESS?
SHOULD THERE BE A "PENDING APPEAL" CATEGORY OF ENTRIES
TO THE REGISTRY?
In addition, the bill would, as proposed to be
amended, also provide for a petition process for the
removal of a person or provider from the registry.
The department-designee would establish rules for
removal (such as a time period for purging the
records, death of the registered person, etc.).
c. Department to consult "program stakeholders"
This bill would require the Secretary of Health and
Human Services to file, within 30 days of designating
the department pursuant to this bill, a written notice
with the Chief Clerk of the Assembly and the Secretary
of the Senate specifying which department would be in
charge of implementing the provisions of this bill.
This bill would require the department-designee to
consult a host of "program stakeholders" to develop
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the protocols required by the bill. These
stakeholders would include, but not be limited to,
representatives from regional centers, providers of
services to persons with developmental disabilities,
state and local law enforcement agencies, district
attorneys, the Office of the Attorney General, the
state long-term care Ombudsperson, Protection and
Advocacy, Inc., the REACH Coalition and other
advocates for persons with disabilities, families of
persons with developmental disabilities, the State
Department of Social Services, the Department of
Aging, the Department of Mental Health, the Department
of Developmental Services, civil rights organizations,
and, as added by author's amendments, child and adult
protective service agencies investigating allegations
of abuse or neglect.
Support: REScoalition; Protection and Advocacy, Inc.;
Developmental Disabilities Area Board 10; California
Association of Psychiatric Technicians; California
Association of Health Facilities; Crime Victims
United of California
Opposition: None Known
HISTORY
Source: Registry to End Abusive Caregiver Hiring (REACH)
Project
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Assembly Human Services Committee (Ayes 6, Noes
0)
Assembly Appropriations Committee (Ayes 12, Noes
5)
Assembly Floor (Ayes 74, Noes 1)
Senate Human Services Committee (Ayes 5, Noes 0)
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