BILL NUMBER: AB 2038 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 8, 2008
AMENDED IN ASSEMBLY MARCH 24, 2008
INTRODUCED BY Assembly Member Lieber
(Principal coauthor: Senator Alquist)
(Coauthors: Assembly Members Beall, Eng, Evans, Galgiani, Hancock,
Karnette, Ma, Portantino, Ruskin, and Swanson)
(Coauthor: Senator Steinberg)
FEBRUARY 15, 2008
An act to amend Section 6175.3 of the Business and Professions
Code, to amend Section 52.7 of the Civil Code, to amend Sections
2017.310 and 2017.320 of the Code of Civil Procedure, to amend
Sections 767 and 1380 of the Evidence Code, to amend Sections 6250
and 6251 of the Family Code, to amend Section 4056 of the Financial
Code, to amend Sections 997.2, 6103.2, 12528, 12528.1, 19996.19, and
70617 of the Government Code, to amend Sections 1337.9, 1418.91,
1569.885, 1569.889, and 1736.5 of the Health and Safety Code, to
amend Sections 148.5, 237, 243.25, 273.6, 288, 422.56, 422.77,
422.85, 422.86, 653c, 801.6, 803, 830.38,
836, 939.21, 1048, 1170.11, 1336, 1337, 1341, 1347.5, 1377,
11160, 11160.1, 11161.2, 11163.6, 11165.7, 11165.9, 11165.14,, 11166,
11166.05, 11174.32, 11174.33, 11174.34, 11174.35, 11174.5, 11174.6,
11174.7, 11174.8, 11174.9, 13515, 13515.25, 13516, 13517, 13519.64,
13823.4, 13823.5, 13823.7, 13823.9, 13823.13, 13823.15, 13823.16,
13823.93, 13835.2, 13835.4, 13835.10, 13836, 13836.1, 13837,
14200, 14201, 14203, 14208, 14209, and 14213 of, to amend the
heading of Article 2.7 (commencing with Section 11174.4) of Chapter 2
of Title 1 of Part 4 of, to add Sections 13514.7 and 13516.5 to, to
add Chapter 13 (commencing with Section 368) to Title 9 of Part 1 of,
and to repeal Section 368 of, the Penal Code, to amend Sections 259,
4128, and 21350 of the Probate Code, to amend Sections 779.1,
10010.1, 12823.1, and 16482.1 of the Public Utilities Code, to amend
Sections 4427, 4427.5, 4433, 4514, 4689.2, 4900, 4901, 4903, 5328,
5328.5, 10850, 11325.9, 12305.81, 14100.2, 15600, 15601, 15610.05,
15610.06, 15610.07, 15610.10, 15610.13, 15610.17, 15610.19, 15610.23,
15610.30, 15610.37, 15610.39, 15610.40, 15610.43, 15610.45,
15610.53, 15610.55, 15610.57, 15610.63, 15630, 15630.1, 15631, 15633,
15633.5, 15634, 15636, 15640, 15650, 15653, 15654, 15655, 15655.5,
15656, 15657.03, 15657.1, 15657.3, 15658, 15659, 15670, 15700, 15701,
15701.05, 15750, 15751, 15755, 15762, 15763, 15766,
16501, 17001.9, 17401 of, to amend and renumber Sections 15800,
15801, 15802, 15803, and 15804 of, to amend and renumber the headings
of Chapter 11 (commencing with Section 15600) of, Chapter 12
(commencing with Section 15700) of, Chapter 13 (commencing with
Section 15750), and Chapter 14 (commencing with Section 15800) of,
Part 3 of Division 9 of, and to add Section
15767 to, to add Part 3 (commencing with Section 4499.5)
to Division 4.1 of, and to add Part 3.2 (commencing with
Section 15590) to Division 9 of, and to repeal Sections 4493 and
9726 of, the Welfare and Institutions Code, relating to
persons with disabilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 2038, as amended, Lieber. Persons with disabilities: victims of
crime.
(1) Existing law uses the phrase "dependent adult" to refer to a
person who is between the ages of 18 and 64 years, and who has a
physical or mental limitation which restricts his or her ability, or
substantially restricts his or her ability, to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished, or
significantly diminished, because of age.
This bill would replace the phrase "dependent adult" with the
phrase "adult with a disability" to refer to a person who is
described in this way, except that the term "adult with a substantial
disability" would be used to refer to a person whose disabilities
pose a substantial restriction or whose abilities have significantly
diminished because of age. This bill would also make conforming
technical changes in related provisions of law.
(2) Existing law makes it either a misdemeanor or a felony for
persons to commit specified crimes against elders and dependent
adults.
This bill would reorganize and renumber those provisions of law
and make conforming technical changes in related provisions.
(3) Existing law defines a "hate crime" as a criminal act
committed, in whole or in part, because the victim has one or more
specified characteristics, including a disability. Existing law
requires the sentencing court to issue a protective order for a
victim of a hate crime and authorizes a court to impose specified
conditions of probation, if granted.
This bill would specify that the sentencing court could
order a person convicted of a hate crime to complete community
service as part of his or her probation and would require the
sentencing court to order the defendant to pay the victim for damages
caused, as specified. This bill would include any crime against a
victim with a disability within the provisions for sentencing hate
crimes, including the requirement to issue a restraining order
protecting the victim provisions for sentencing a
person convicted of a crime against a person with a disability, as
specified, including provisions for ordering community service,
counseling, and monetary compensation to the victim .
(4) Existing law authorizes a peace officer to make a warrantless
arrest in an assault or battery case involving domestic violence if
the officer has probable cause to believe the person to be arrested
committed the assault or battery and arrests the person as soon as
that probable cause arises.
This bill would, in addition, authorize a peace officer to make a
warrantless arrest in an assault or battery case involving a victim
with a substantial disability and a suspect who is the caregiver of
that person, if the officer has probable cause to believe the suspect
committed the assault or battery and arrests the suspect as soon as
that probable cause arises.
(5) Existing law imposes duties on specified persons to report
known or suspected crimes against certain types of victims, including
children and elders. Existing law also makes it a crime for a
mandated reporter to fail to report a known or reasonably suspected
instance of abuse and a continuing criminal offense to intentionally
conceal his or her failure to report, as specified.
This bill would clarify that any reporting or investigation duty
for crimes against children includes crimes against children with
disabilities. This bill would also reorganize the reporting
requirements for certain mandated reporters. Because this bill
would expand the definition of an existing crime, it would impose a
state-mandated local program.
(6) Existing law authorizes the establishment of interagency elder
death review teams, as specified.
This bill would expand that authorization to include elder and
adults with disabilities death review teams, as specified.
(7) Existing law establishes the Commission on Peace Officer
Standards and Training (POST) and requires the commission to create
courses of training that must be completed by persons before those
persons can become peace officers. The commission is also required to
create advanced training courses for peace officers on specified law
enforcement topics, including the investigation of crimes against
elders, dependent adults, and mentally disabled persons.
This bill would require the commission, by July 1, 2010, to
include within the basic training, for persons to become peace
officers, courses on the laws relating to and the investigation and
prosecution of crimes against elders and individuals with
disabilities. This bill would also require the commission to develop
advanced training on the same issues and would require certain state
peace officers to attend that training. The bill would also state
that it is the intent of the Legislature to encourage local law
enforcement peace officers to attend the same advanced training. This
bill would require the commission to develop a model policy related
to the prevention of, response to, and investigation of crimes
against victims with disabilities by July 1, 2010. All state law
enforcement agencies would be required to adopt the policy and the
bill would express the intent of the Legislature to encourage all
local law enforcement agencies to also adopt the policy. The
commission would also be required to develop a model policy on how to
deal effectively and humanely with homeless persons, including
homeless persons with disabilities.
(8) Existing law creates a Family Violence Prevention Program.
This bill would require that program to include information on
family violence against victims with disabilities.
Existing law establishes a protocol for the examination and
treatment of victims of sexual assault, attempted sexual assault, and
child molestation.
This bill would include sexual assault of victims with
disabilities in that protocol.
Existing law requires development of a course of training for
qualified health care professionals relating to the examination and
treatment of victims of sexual assault.
This bill would require that training to include examination and
treatment of child victims and victims with disabilities.
Existing law requires the Office of Emergency Services to conduct
statewide training workshops on domestic violence for local centers,
law enforcement, and other service providers. Existing law requires
that office to develop and disseminate statewide information
materials concerning domestic violence, as specified.
This bill would require those workshops to include a component on
domestic violence against victims with disabilities. The bill would
include in the definition of "domestic violence" for those purposes,
victims with disabilities. The bill also would include victims with
disabilities among those who are given priority for financial and
technical assistance through the Comprehensive Statewide Domestic
Violence Program.
Existing law states the intent of the Legislature that membership
on the Office of Emergency Services Domestic Violence Advisory
Council reflect the ethnic, racial, cultural, and geographic
diversity of this state.
This bill would include people with disabilities in that statement
of intent.
(9) Under existing law, when the State Department of Developmental
Services has reason to believe that a developmentally disabled
person in its custody is wrongfully deprived of his or her liberty,
is cruelly or negligently treated, or is otherwise provided
inadequate medical care or supervision, as specified, the department
may ascertain the facts through a formal investigation using the
powers otherwise conferred upon a superior court referee. The
department must also annually provide written information to every
developmental center employee regarding mandated reporting of abuse,
as specified.
This bill would authorize the department to use those powers when
it has reason to believe the person is the victim of any crime and
would give the department the option of either ascertaining the facts
of the crime through the formal investigation procedure or reporting
the case to the appropriate law enforcement agency. However, if the
department undertakes its own investigation and determines a crime
has been committed against the developmentally disabled person, the
department would be required to report the crime to the appropriate
law enforcement agency. This bill would also require the department
to annually provide written information to every developmental center
employee regarding mandatory reporting of other crimes against
individuals with disabilities, as specified.
(10) Under existing law, elders and dependent adults are provided
certain aid and medical assistance as part of state and local public
social services.
This bill would renumber and reorganize those provisions and would
create a Think Tank on Victims of Crime and Abuse with Disabilities
program in the Office of Emergency Services to, subject to available
funding, study, make recommendations concerning, and raise public
awareness about the problems of crimes against people with
disabilities, as specified.
(11) Existing law gives the State Department of Developmental
Services jurisdiction over certain state hospitals and charges the
department with the care of the persons within the hospitals, as
specified.
This bill would create within the department the Office of
Protective Services which would have statewide law enforcement
jurisdiction over departmental facilities, as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known and may be cited as the Crime
Victims with Disabilities Act.
SEC. 1.1. The Legislature finds and declares as follows:
(a) A large body of research indicates that people with mental and
physical disabilities in California and throughout the United States
are victimized by violent crime and major property crime at much
higher rates than the general population.
(b) At least 13,500 American adults with disabilities are victims
of criminal violence every day--562 every hour. At least 410 children
with disabilities are victimized every day--17 every hour.
(c) People with disabilities who are abused experience both more
prolonged and more severe abuse on the average than other crime
victims. Evidence suggests that the harmful effects may be more
serious and chronic for victims with disabilities.
(d) California and national research has found particularly
disturbing indications, including:
(1) Californians with developmental disabilities are victimized 4
to 10 times more frequently than the general population, and they are
at a higher risk of revictimization.
(2) The rate of victimization of Californians with severe and
persistent mental illness is 1,970 percent that of the general
population. The rate of victimization for those diagnosed with both
mental illness and substance abuse is 6,300 percent of that of the
general population.
(3) Of Californians with development disabilities, about 8 in 10
women and 4 in 10 men have been sexually abused. About 4 in 10 women
and 2 in 10 men have been sexually abused at least 10 times.
(4) More than 8,000 California children with disabilities were
reported by Child Protective Services to be victims of maltreatment
in 2005--about one per hour.
(5) Mentally ill prison and jail inmates are a significantly
higher risk of violence, particularly sexual abuse, than other
inmates.
(6) People often become homeless because of disabilities, and
those who were able when they were housed typically become disabled
due to their homelessness. Homeless Californians are much more likely
than the housed population to become crime victims -- more than 6
out of 10 are victimized every year, 2 out of 10 at least five times
in the year. Their disabilities increase the likelihood of
victimization still further. The lifetime risk of victimization for
seriously mentally ill, episodically homeless women is 97 percent.
(7) People with disabilities, both those who live at home and
those who live in institutions, are often victims of domestic and
family violence and other crimes by caregivers.
(8) Elders and children with disabilities are particularly at risk
of becoming victims of abuse, neglect, and other major crimes.
(e) Research indicates that criminals select people with
disabilities as their victims because of two major categories of
motivations, as follows:
(1) Hostility toward those who arouse guilt, fear of those whose
visible traits are perceived as disturbing to others, a perception
that people with disabilities are inferior and therefore "deserving
victims," and resentment of those who require and increasingly demand
alternative physical and social accommodations.
(2) Belief that people with disabilities are especially
vulnerable, a belief that is often well founded.
(f) California has made serious and continuing efforts to protect
people with disabilities from crime and to punish those who commit
these crimes.
(1) The Legislature has required training of peace officers
concerning various types of disability, and it has made other,
related training optional.
(2) The Commission on Peace Officer Standards and Training and the
Department of Justice have carried out legislative mandates to
develop the training materials and have gone beyond the mandates to
offer law enforcement agencies additional training opportunities.
(3) The California District Attorneys Association and the
Department of Justice have produced training materials for
prosecutors.
(4) The Legislature has made disability a protected characteristic
under the hate crime laws.
(5) The Legislature created the Crime Victims with Disabilities
Initiative specifically to address the problem of unequal protection
and services for these victims. The initiative funded specialists in
six counties, trained law enforcement and social services staff
throughout the state, and conducted a public education campaign.
(6) The Department of Justice conducted the "It's a Crime"
advertising campaign focusing on abuse and neglect of elders and
people with disabilities.
(7) The Legislature and the State Department of Development
Services have focused efforts on crimes against residents of the
department's facilities that serve Californians with the most acute
developmental disabilities.
(8) The Office of Emergency Services, through the Child and
Victims Justice Branch, funds the Think Tank on Victims of Crime and
Abuse with Disabilities program through a contract with the State
Council on Developmental Disabilities.
(9) The Legislature has taken steps to make the court system more
accessible to victims with disabilities.
(10) Regional centers and private groups have worked diligently to
protect people with disabilities from crimes.
(g) Despite these efforts, the state has fallen shamefully short
of meeting its responsibility to provide Californians with
disabilities with equal protection from crime and its effects.
(h) Research indicates that the current system is generally
unsuccessful in prosecuting perpetrators or even reporting most
crimes against victims with disabilities. Evaluations have identified
failings, including:
(1) The criminal justice system often fails to pursue cases
because its personnel think the victims' disabilities make them
noncredible.
(2) The system fails to investigate cases because of
jurisdictional issues.
(3) The system drops cases because of mistakes during the
investigation process.
(4) There are often limited supports for victims with
disabilities.
(5) The law does not require agencies providing Supportive Living
Services in clients' homes to do even minimal background checks on
caregivers or other employees.
(6) Law enforcement agencies almost universally fail to recognize
and report disability-bias hate crimes.
(i) Use of inaccurate and disempowering terms such as "dependent
adults" and "dependent persons" is partly responsible for these
failings.
(j) The result of the many failings is an unintentional but
systematic denial of basic human rights to Californians with
disabilities.
(k) It is the intent of the Legislature to systemically refocus
every part of the criminal justice and human services systems to
clarify and enforce existing laws and make California the national
leader in humane treatment of people with disabilities.
SEC. 1.2. The Legislature respectfully requests that the
California District Attorneys Association does each of the following:
(a) Assist the Commission on Peace Office Standards and Training
in developing the model policy and training materials for law
enforcement agencies and officers that this act requires.
(b) Develop a model policy that district attorneys may adopt on
crimes against victims with disabilities, and any other training
materials for prosecutors, consistent with the model policy and
training materials for law enforcement agencies and officers that the
commission adopts.
SEC. 2. Section 6175.3 of the Business and Professions Code is
amended to read:
6175.3. A lawyer, while acting as a fiduciary, may sell financial
products to a client who is an elder or an adult with a disability
with whom the lawyer has or has had, within the preceding three
years, an attorney-client relationship, if the transaction or
acquisition and its terms are fair and reasonable to the client, and
if the lawyer provides that client with a disclosure that satisfies
all of the following conditions:
(a) The disclosure is in writing and is clear and conspicuous. The
disclosure shall be a separate document, appropriately entitled, in
12-point print with one inch of space on all borders.
(b) The disclosure, in a manner that should reasonably have been
understood by that client, is signed by the client, or the client's
conservator, guardian, or agent under a valid durable power of
attorney.
(c) The disclosure states that the lawyer shall receive a
commission and sets forth the amount of the commission and the actual
percentage rate of the commission, if any. If the actual amount of
the commission cannot be ascertained at the outset of the
transaction, the disclosure shall include the actual percentage rate
of the commission or the alternate basis upon which the commission
will be computed, including an example of how the commission would be
calculated.
(d) The disclosure identifies the source of the commission and the
relationship between the source of the commission and the person
receiving the commission.
(e) The disclosure is presented to the client at or prior to the
time the recommendation of the financial product is made.
(f) The disclosure advises the client that he or she may obtain
independent advice regarding the purchase of the financial product
and will be given a reasonable opportunity to seek that advice.
(g) The disclosure contains a statement that the financial product
may be returned to the issuing company within 30 days of receipt by
the client for a refund as set forth in Section 10127.10 of the
Insurance Code.
(h) The disclosure contains a statement that if the purchase of
the financial product is for the purposes of Medi-Cal planning, the
client has been advised of other appropriate alternatives, including
spend-down strategies, and of the possibility of obtaining a fair
hearing or obtaining a court order.
SEC. 3. Section 52.7 of the Civil Code is amended to read:
52.7. (a) Except as provided in subdivision (g), a person shall
not require, coerce, or compel any other individual to undergo the
subcutaneous implanting of an identification device.
(b) (1) Any person who violates subdivision (a) may be assessed an
initial civil penalty of no more than ten thousand dollars
($10,000), and no more than one thousand dollars ($1,000) for each
day the violation continues until the deficiency is corrected. That
civil penalty may be assessed and recovered in a civil action brought
in any court of competent jurisdiction. The court may also grant a
prevailing plaintiff reasonable attorney's fees and litigation costs,
including, but not limited to, expert witness fees and expenses as
part of the costs.
(2) A person who is implanted with a subcutaneous identification
device in violation of subdivision (a) may bring a civil action for
actual damages, compensatory damages, punitive damages, injunctive
relief, any combination of those, or any other appropriate relief.
(3) Additionally, punitive damages may also be awarded upon proof
of the defendant's malice, oppression, fraud, or duress in requiring,
coercing, or compelling the plaintiff to undergo the subcutaneous
implanting of an identification device.
(c) (1) An action brought pursuant to this section shall be
commenced within three years of the date upon which the
identification device was implanted.
(2) If the victim was an adult with a disability or minor when the
implantation occurred, actions brought pursuant to this section
shall be commenced within three years after the date the plaintiff,
or his or her guardian or parent, discovered or reasonably should
have discovered the implant, or within eight years after the
plaintiff attains the age of majority, whichever date occurs later.
(3) The statute of limitations shall not run against an adult with
a disability or minor plaintiff simply because a guardian ad litem
has been appointed. A guardian ad litem's failure to bring a
plaintiff's action within the applicable limitation period will not
prejudice the plaintiff's right to do so.
(4) A defendant is estopped to assert a defense of the statute of
limitations when the expiration of the statute is due to conduct by
the defendant inducing the plaintiff to delay the filing of the
action, or due to threats made by the defendant causing duress upon
the plaintiff.
(d) Any restitution paid by the defendant to the victim shall be
credited against any judgment, award, or settlement obtained pursuant
to this section. Any judgment, award, or settlement obtained
pursuant to an action under this section shall be subject to the
provisions of Section 13963 of the Government Code.
(e) The provisions of this section shall be liberally construed so
as to protect privacy and bodily integrity.
(f) Actions brought pursuant to this section are independent of
any other actions, remedies, or procedures that may be available to
an aggrieved party pursuant to any other law.
(g) This section shall not in any way modify existing statutory or
case law regarding the rights of parents or guardians, the rights of
children or minors, or the rights of adults with disabilities.
(h) For purposes of this section:
(1) "Identification device" means any item, application, or
product that is passively or actively capable of transmitting
personal information, including, but not limited to, devices using
radio frequency technology.
(2) "Person" means an individual, business association,
partnership, limited partnership, corporation, limited liability
company, trust, estate, cooperative association, or other entity.
(3) "Personal information" includes any of the following data
elements to the extent they are used alone or in conjunction with any
other information used to identify an individual:
(A) First or last name.
(B) Address.
(C) Telephone number.
(D) E-mail, Internet Protocol, or Web site address.
(E) Date of birth.
(F) Driver's license number or California identification card
number.
(G) Any unique personal identifier number contained or encoded on
a driver's license or identification card issued pursuant to Section
13000 of the Vehicle Code.
(H) Bank, credit card, or other financial institution account
number.
(I) Any unique personal identifier contained or encoded on a
health insurance, health benefit, or benefit card or record issued in
conjunction with any government-supported aid program.
(J) Religion.
(K) Ethnicity or nationality.
(L) Photograph.
(M) Fingerprint or other biometric identifier.
(N) Social security number.
(O) Any unique personal identifier.
(4) "Require, coerce, or compel" includes physical violence,
threat, intimidation, retaliation, the conditioning of any private or
public benefit or care on consent to implantation, including
employment, promotion, or other employment benefit, or by any means
that causes a reasonable person of ordinary susceptibilities to
acquiesce to implantation when he or she otherwise would not.
(5) "Subcutaneous" means existing, performed, or introduced under
or on the skin.
SEC. 4. Section 2017.310 of the Code of Civil Procedure is amended
to read:
2017.310. (a) Notwithstanding any other provision of law, it is
the policy of the State of California that confidential settlement
agreements are disfavored in any civil action the factual foundation
for which establishes a cause of action for a violation of the Elders
and Adults with Disabilities Civil Protection Act
(Chapter 11 (commencing with Section 15600) of Part 3 of Division 9
of the Welfare and Institutions Code).
(b) Provisions of a confidential settlement agreement described in
subdivision (a) may not be recognized or enforced by the court
absent a showing of any of the following:
(1) The information is privileged under existing law.
(2) The information is not evidence of abuse of an elder or an
adult with a disability, as described in Sections 15610.30, 15610.57,
and 15610.63 of the Welfare and Institutions Code.
(3) The party seeking to uphold the confidentiality of the
information has demonstrated that there is a substantial probability
that prejudice will result from the disclosure and that the party's
interest in the information cannot be adequately protected through
redaction.
(c) Nothing in paragraph (1), (2), or (3) of subdivision (b)
permits the sealing or redacting of a defendant's name in any
information made available to the public.
(d) Except as expressly provided in this section, nothing in this
section is intended to alter, modify, or amend existing law.
(e) Nothing in this section may be deemed to prohibit the entry or
enforcement of that part of a confidentiality agreement, settlement
agreement, or stipulated agreement between the parties that requires
the nondisclosure of the amount of any money paid in a settlement of
a claim.
(f) Nothing in this section applies to or affects an action for
professional negligence against a health care provider.
SEC. 5. Section 2017.320 of the Code of Civil Procedure is amended
to read:
2017.320. (a) In any civil action the factual foundation for
which establishes a cause of action for a violation of the Elders and
Adults with Disabilities Civil Protection Act
(Chapter 2 (commencing with Section 15600) of Part 3.2 of Division 9
of the Welfare and Institutions Code), any information that is
acquired through discovery and is protected from disclosure by a
stipulated protective order shall remain subject to the protective
order, except for information that is evidence of abuse of an elder
or an adult with a disability as described in Sections 15610.30,
15610.57, and 15610.63 of the Welfare and Institutions Code.
(b) In that instance, after redacting information in the document
that is not evidence of abuse of an elder or an adult with a
disability as described in Sections 15610.30, 15610.57, and 15610.63
of the Welfare and Institutions Code, a party may file that
particularized information with the court. The party proposing to
file the information shall offer to meet and confer with the party
from whom the information was obtained at least one week prior to
filing that information with the court.
(c) The filing party shall give concurrent notice of the filing
with the court and its basis to the party from whom the information
was obtained.
(d) Any filed information submitted to the court shall remain
confidential under any protective order for 30 days after the filing
and shall be part of the public court record thereafter, unless an
affected party petitions the court and shows good cause for a court
protective order.
(e) The burden of showing good cause shall be on the party seeking
the court protective order.
(f) A stipulated protective order may not be recognized or
enforced by the court to prevent disclosure of information filed with
the court pursuant to subdivision (b), absent a showing of any of
the following:
(1) The information is privileged under existing law.
(2) The information is not evidence of abuse of an elder or an
adult with a disability as described in Sections 15610.30, 15610.57,
and 15610.63 of the Welfare and Institutions Code.
(3) The party seeking to uphold the confidentiality of the
information has demonstrated that there is a substantial probability
that prejudice will result from the disclosure and that the party's
interest in the information cannot be adequately protected through
redaction.
(g) If the court denies the petition for a court protective order,
it shall redact any part of the filed information it finds is not
evidence of abuse of an elder or an adult with a disability, as
described in Sections 15610.30, 15610.57, and 15610.63 of the Welfare
and Institutions Code. Nothing in this subdivision or in paragraph
(1), (2), or (3) of subdivision (f) permits the sealing or redacting
of a defendant's name in any information made available to the
public.
(h) Nothing in this section applies to or affects an action for
professional negligence against a health care provider.
SEC. 6. Section 767 of the Evidence Code is amended to read:
767. (a) Except under special circumstances where the interests
of justice otherwise require:
(1) A leading question may not be asked of a witness on direct or
redirect examination.
(2) A leading question may be asked of a witness on
cross-examination or recross-examination.
(b) The court may, in the interests of justice permit a leading
question to be asked of a child under 10 years of age or a person
with a substantial cognitive impairment in a case involving a
prosecution under Section 273a, 273d, 288.5, 368.2, 368.3, 368.4,
368.5, or 368.6, or any of the acts described in Section 11165.1 or
11165.2 of the Penal Code.
SEC. 7. Section 1380 of the Evidence Code is amended to read:
1380. (a) In a criminal proceeding charging a violation, or
attempted violation, of Section 368.2, 368.3, 368.4, 368.5, or 368.6
of the Penal Code, evidence of a statement made by a declarant is not
made inadmissible by the hearsay rule if the declarant is
unavailable as a witness, as defined in subdivisions (a) and (b) of
Section 240, and all of the following are true:
(1) The party offering the statement has made a showing of
particularized guarantees of trustworthiness regarding the statement,
the statement was made under circumstances which indicate its
trustworthiness, and the statement was not the result of promise,
inducement, threat, or coercion. In making its determination, the
court may consider only the circumstances that surround the making of
the statement and that render the declarant particularly worthy of
belief.
(2) There is no evidence that the unavailability of the declarant
was caused by, aided by, solicited by, or procured on behalf of, the
party who is offering the statement.
(3) The entire statement has been memorialized in a videotape
recording made by a law enforcement official, prior to the death or
disabling of the declarant.
(4) The statement was made by the victim of the alleged violation.
(5) The statement is supported by corroborative evidence.
(6) The victim of the alleged violation is an individual who meets
both of the following requirements:
(A) Was 65 years of age or older or was an adult with a disability
when the alleged violation or attempted violation occurred.
(B) At the time of any criminal proceeding, including, but not
limited to, a preliminary hearing or trial, regarding the alleged
violation or attempted violation, is either deceased or suffers from
the infirmities of aging as manifested by advanced age or organic
brain damage, or other physical, mental, or emotional dysfunction, to
the extent that the ability of the person to provide adequately for
the person's own care or protection is impaired.
(b) If the prosecution intends to offer a statement pursuant to
this section, the prosecution shall serve a written notice upon the
defendant at least 10 days prior to the hearing or trial at which the
prosecution intends to offer the statement, unless the prosecution
shows good cause for the failure to provide that notice. In the event
that good cause is shown, the defendant shall be entitled to a
reasonable continuance of the hearing or trial.
(c) If the statement is offered during trial, the court's
determination as to the availability of the victim as a witness shall
be made out of the presence of the jury. If the defendant elects to
testify at the hearing on a motion brought pursuant to this section,
the court shall exclude from the examination every person except the
clerk, the court reporter, the bailiff, the prosecutor, the
investigating officer, the defendant and his or her counsel, an
investigator for the defendant, and the officer having custody of the
defendant. Notwithstanding any other provision of law, the defendant'
s testimony at the hearing shall not be admissible in any other
proceeding except the hearing brought on the motion pursuant to this
section. If a transcript is made of the defendant's testimony, it
shall be sealed and transmitted to the clerk of the court in which
the action is pending.
SEC. 8. Section 6250 of the Family Code is amended to read:
6250. A judicial officer may issue an ex parte emergency
protective order where a law enforcement officer asserts reasonable
grounds to believe any of the following:
(a) That a person is in immediate and present danger of domestic
violence, based on the person's allegation of a recent incident of
abuse or threat of abuse by the person against whom the order is
sought.
(b) That a child is in immediate and present danger of abuse by a
family or household member, based on an allegation of a recent
incident of abuse or threat of abuse by the family or household
member.
(c) That a child is in immediate and present danger of being
abducted by a parent or relative, based on a reasonable belief that a
person has an intent to abduct the child or flee with the child from
the jurisdiction or based on an allegation of a recent threat to
abduct the child or flee with the child from the jurisdiction.
(d) That an elder or an adult with a disability is in immediate
and present danger of abuse as defined in Section 15610.07 of the
Welfare and Institutions Code, based on an allegation of a recent
incident of abuse or threat of abuse by the person against whom the
order is sought, except that no emergency protective order shall be
issued based solely on an allegation of financial abuse.
SEC. 9. Section 6251 of the Family Code is amended to read:
6251. An emergency protective order may be issued only if the
judicial officer finds both of the following:
(a) That reasonable grounds have been asserted to believe that an
immediate and present danger of domestic violence exists, that a
child is in immediate and present danger of abuse or abduction, or
that an elder or an adult with a disability is in immediate and
present danger of abuse as defined in Section 15610.07 of the Welfare
and Institutions Code.
(b) That an emergency protective order is necessary to prevent the
occurrence or recurrence of domestic violence, child abuse, child
abduction, or abuse of an elder or an adult with a disability.
SEC. 10. Section 4056 of the Financial Code is amended to read:
4056. (a) This division shall not apply to information that is
not personally identifiable to a particular person.
(b) Notwithstanding Sections 4052.5, 4053, 4054, and 4054.6, a
financial institution may release nonpublic personal information
under the following circumstances:
(1) The nonpublic personal information is necessary to effect,
administer, or enforce a transaction requested or authorized by the
consumer, or in
connection with servicing or processing a financial product or
service requested or authorized by the consumer, or in connection
with maintaining or servicing the consumer's account with the
financial institution, or with another entity as part of a private
label credit card program or other extension of credit on behalf of
that entity, or in connection with a proposed or actual
securitization or secondary market sale, including sales of servicing
rights, or similar transactions related to a transaction of the
consumer.
(2) The nonpublic personal information is released with the
consent of or at the direction of the consumer.
(3) The nonpublic personal information is:
(A) Released to protect the confidentiality or security of the
financial institution's records pertaining to the consumer, the
service or product, or the transaction therein.
(B) Released to protect against or prevent actual or potential
fraud, identity theft, unauthorized transactions, claims, or other
liability.
(C) Released for required institutional risk control, or for
resolving customer disputes or inquiries.
(D) Released to persons holding a legal or beneficial interest
relating to the consumer, including for purposes of debt collection.
(E) Released to persons acting in a fiduciary or representative
capacity on behalf of the consumer.
(4) The nonpublic personal information is released to provide
information to insurance rate advisory organizations, guaranty funds
or agencies, applicable rating agencies of the financial institution,
persons assessing the institution's compliance with industry
standards, and the institution's attorneys, accountants, and
auditors.
(5) The nonpublic personal information is released to the extent
specifically required or specifically permitted under other
provisions of law and in accordance with the Right to Financial
Privacy Act of 1978 (12 U.S.C. Sec. 3401 et seq.), to law enforcement
agencies, including a federal functional regulator, the Secretary of
the Treasury with respect to subchapter II of Chapter 53 of Title
31, and Chapter 2 of Title I of Public Law 91-508 (12 U.S.C. Secs.
1951-1959), the California Department of Insurance or other state
insurance regulators, or the Federal Trade Commission, and
self-regulatory organizations, or for an investigation on a matter
related to public safety.
(6) The nonpublic personal information is released in connection
with a proposed or actual sale, merger, transfer, or exchange of all
or a portion of a business or operating unit if the disclosure of
nonpublic personal information concerns solely consumers of the
business or unit.
(7) The nonpublic personal information is released to comply with
federal, state, or local laws, rules, and other applicable legal
requirements; to comply with a properly authorized civil, criminal,
administrative, or regulatory investigation or subpoena or summons by
federal, state, or local authorities; or to respond to judicial
process or government regulatory authorities having jurisdiction over
the financial institution for examination, compliance, or other
purposes as authorized by law.
(8) When a financial institution is reporting a known or suspected
instance of elder or adult with a disability financial abuse or is
cooperating with a local adult protective services agency
investigation of known or suspected elder or adult with a disability
financial abuse pursuant to Article 3 (commencing with Section 15630)
of Chapter 11 of Part 3 of Division 9 of the Welfare and
Institutions Code.
(9) The nonpublic personal information is released to an affiliate
or a nonaffiliated third party in order for the affiliate or
nonaffiliated third party to perform business or professional
services, such as printing, mailing services, data processing or
analysis, or customer surveys, on behalf of the financial
institution, provided that all of the following requirements are met:
(A) The services to be performed by the affiliate or nonaffiliated
third party could lawfully be performed by the financial
institution.
(B) There is a written contract between the affiliate or
nonaffiliated third party and the financial institution that
prohibits the affiliate or nonaffiliated third party, as the case may
be, from disclosing or using the nonpublic personal information
other than to carry out the purpose for which the financial
institution disclosed the information, as set forth in the written
contract.
(C) The nonpublic personal information provided to the affiliate
or nonaffiliated third party is limited to that which is necessary
for the affiliate or nonaffiliated third party to perform the
services contracted for on behalf of the financial institution.
(D) The financial institution does not receive any payment from or
through the affiliate or nonaffiliated third party in connection
with, or as a result of, the release of the nonpublic personal
information.
(10) The nonpublic personal information is released to identify or
locate missing and abducted children, witnesses, criminals and
fugitives, parties to lawsuits, parents delinquent in child support
payments, organ and bone marrow donors, pension fund beneficiaries,
and missing heirs.
(11) The nonpublic personal information is released to a real
estate appraiser licensed or certified by the state for submission to
central data repositories such as the California Market Data
Cooperative, and the nonpublic personal information is compiled
strictly to complete other real estate appraisals and is not used for
any other purpose.
(12) The nonpublic personal information is released as required by
Title III of the federal United and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA Patriot Act; P.L. 107-56).
(13) The nonpublic personal information is released either to a
consumer reporting agency pursuant to the Fair Credit Reporting Act
(15 U.S.C. Sec. 1681 et seq.) or from a consumer report reported by a
consumer reporting agency.
(14) The nonpublic personal information is released in connection
with a written agreement between a consumer and a broker-dealer
registered under the Securities Exchange Act of 1934 or an investment
adviser registered under the Investment Advisers Act of 1940 to
provide investment management services, portfolio advisory services,
or financial planning, and the nonpublic personal information is
released for the sole purpose of providing the products and services
covered by that agreement.
(c) Nothing in this division is intended to change existing law
relating to access by law enforcement agencies to information held by
financial institutions.
SEC. 11. Section 997.2 of the Government Code is amended to read:
997.2. The application of any individual who was injured as a
result of the collapse of the Bay Bridge or I-880 Cypress structure
caused by the October 17, 1989, earthquake, and any surviving spouse,
child, adult offspring, or parent who is an adult with a disability
of any individual killed as a result of that collapse, may include a
request for emergency payment. Upon the determination that the
applicant is eligible, the board or its designee shall award
emergency payments in the following amounts:
Death of spouse $50,000
Death of parent by dependent minor $50,000
Death of parent by adult with a $50,000
disability offspring
Death of adult offspring by $25,000
dependent parent
Death of dependent minor $25,000
Loss of income and medical
expenses incurred up to $25,000
by injured person
The maximum award to members of an immediate family pursuant to
this section based on any one death shall not exceed two hundred
thousand dollars ($200,000). If the aggregate amount of individual
payments for members of an immediate family pursuant to this section
would otherwise exceed this amount, each individual shall share in
this maximum amount proportionately.
Payments made pursuant to this section shall constitute an offset
against any amounts received under Section 997.3 as well as any
amount which may be received from the state as a result of litigation
in the courts of this state. Payments made pursuant to this section
shall not constitute an admission of liability nor be admissible as
evidence in any court action.
No attorney or other representative shall accept any fee or other
compensation for representing any applicant under Section 997.2
unless the compensation is authorized by a superior court upon a
finding of exceptional circumstances.
SEC. 12. Section 6103.2 of the Government Code is amended to read:
6103.2. (a) Section 6103 does not apply to any fee or charge or
expense for official services rendered by a sheriff or marshal in
connection with the levy of writs of attachment, execution,
possession, or sale. The fee, charge, or expense may be advanced to
the sheriff or marshal, as otherwise required by law.
(b) (1) Notwithstanding Section 6103, the sheriff or marshal, in
connection with the service of process or notices, may require that
all fees which a public agency, or any person or entity, is required
to pay under provisions of law other than this section, be prepaid by
a public agency named in Section 6103, or by any person or entity,
prior to the performance of any official act. This authority to
require prepayment shall include fees governed by Section 6103.5.
(2) This subdivision does not apply to the service of process or
notices in any action by the district attorney's office for the
establishment or enforcement of a child support obligation.
(3) This subdivision does not apply to a particular jurisdiction
unless the sheriff or marshal, as the case may be, imposes the
requirement of prepayment upon public agencies and upon all persons
or entities within the private sector.
(4) The requirement for prepayment of a fee deposit does not apply
to orders or injunctions described in paragraph (1) of subdivision
(q) of Section 527.6 and Section 527.8 of the Code of Civil
Procedure, Division 10 (commencing with Section 6200) of the Family
Code (Prevention of Domestic Violence), and Chapter 2 (commencing
with Section 15600) of Part 3.2 of Division 9 of the Welfare and
Institutions Code (Elders and Adults with Disabilities Civil
Protection Act).
However, a sheriff or marshal may submit a billing to the superior
court for payment of fees in the manner prescribed by the Judicial
Council irrespective of the in forma pauperis status of any party
under Rules 3.50 to 3.63, inclusive, of the California Rules of
Court. The fees for service, cancellation of service, and making a
not found return may not exceed the amounts provided in Sections
26721, 26736, and 26738, respectively, and are subject to the
provisions of Section 26731.
SEC. 13. Section 12528 of the Government Code is amended to read:
12528. (a) There is in the Office of the Attorney General the
Bureau of Medi-Cal Fraud and Patient Abuse, which shall implement
Sections 1903(a)(6), 1903(b)(3), and 1903(g) of the federal Social
Security Act, as amended by the federal Medicare-Medicaid Anti-Fraud
and Abuse Amendments ( Public Law 95-124), and is authorized to
conduct a statewide program for investigating and prosecuting, and
referring for prosecution, violations of all applicable laws
pertaining to fraud in the administration of the Medi-Cal program,
the provision of medical assistance or medical supplies, or the
activities of providers of medical assistance or medical suppliers
under the Medi-Cal plan. The investigation of fraud by beneficiaries
of the Medi-Cal program is the responsibility of the Audits and
Investigations Branch of the State Department of Health Care
Services.
(b) The bureau shall also review complaints alleging abuse or
neglect of patients in health care facilities receiving payments
under the Medi-Cal plan and may review complaints of the
misappropriation of patient's private funds in such facilities and
complaints of discriminatory treatment of Medi-Cal beneficiaries by
such facilities.
(1) If the initial review indicates substantial potential for
criminal prosecution, the bureau shall investigate the complaint or
refer it to an appropriate criminal investigative or prosecutive
authority.
(2) If the initial review does not indicate a substantial
potential for criminal prosecution, the bureau shall inform the
referring agency of its determination and may, if appropriate, refer
the complaint to the State Department of Health Care Services.
(c) Local law enforcement and prosecution agencies shall have
concurrent jurisdiction with the bureau to investigate and prosecute
violations of law referred to in this section.
(d) If the bureau, in carrying out its duties and responsibilities
under subdivisions (a) and (b), discovers that overpayments have
been made to a health care facility or other provider of medical
assistance or medical supplies under the Medi-Cal plan, the bureau
shall either attempt to collect the overpayment or refer the matter
to the State Department of Health Care Services for collection.
(e) Where a prosecuting authority other than the bureau elects to
prosecute a case reported to the bureau, the bureau shall, upon
request of that prosecuting authority, ensure that those responsible
for the prosecutive decision and the preparation of the case for
trial have the opportunity to participate in the investigation from
its inception and will provide all necessary assistance to the
prosecuting authority throughout all resulting prosecutions.
(f) The bureau shall make available to federal investigators or
prosecutors all information in its possession concerning fraud in the
provision or administration of medical assistance under the Medi-Cal
plan and shall cooperate with such officials in coordinating any
federal and state investigations or prosecutions involving the same
suspects or allegations.
(g) The bureau shall safeguard the privacy rights of all
individuals and shall provide safeguards to prevent the misuse of
information under its control, and all agencies which are required to
report complaints alleging abuse or neglect of patients shall
maintain the confidentiality of those reports until such time as the
report becomes a matter of public record.
(h) The bureau shall offer training programs to local law
enforcement and prosecutorial personnel in investigating and
prosecuting crimes against elders and adults with disabilities, and
to the State Department of Health Care Services, the State Department
of Social Services, the county adult protective services agencies
and to the Long-Term Care Ombudsman in evaluating and documenting
criminal abuse against elders and adults with
disabilities.
(i) The state Long-Term Care Ombudsman, the Licensing and
Certification Division in the State Department of Health Care
Services, and the Statistical Services Bureau in the State Department
of Social Services shall report to the bureau all instances of abuse
and neglect of elders and adults with disabilities, as defined in
Section 15610 of the Welfare and Institutions Code, which come to
their attention.
(j) The bureau shall collect information on a statewide basis
regarding cases of abuse and neglect of patients in health facilities
receiving payments from the Medi-Cal program for the primary purpose
of analyzing the information it collects and disseminating its
conclusions to local law enforcement agencies and to regulatory and
licensing authorities.
(k) For purposes of this section, "bureau" means the Bureau of
Medi-Cal Fraud and Patient Abuse in the Office of the Attorney
General.
SEC. 13.5. Section 12528.1 of the Government Code is amended to
read:
12528.1. (a) Any agent, investigator, or auditor of the Bureau of
Medi-Cal Fraud and Patient Abuse within the office of the Attorney
General shall have the authority to inspect, at any time, the
business location of any Medi-Cal provider for the purpose of
carrying out the duties of the bureau as set forth in Section 12528.
For purposes of this subdivision, "provider" includes an applicant as
defined in Section 14043.1 of the Welfare and Institutions Code and
a billing agent, as defined in Section 14040.1 of the Welfare and
Institutions Code.
(b) The department shall provide all investigators and auditors
assigned to lead a facility inspection team of a health facility
licensed under Chapter 2 (commencing with Section 1250) of Division 2
of the Health and Safety Code with basic training on the relevant
statutes and regulations governing the types of facilities to be
inspected. Unless it is impracticable, the training shall include a
facility tour, unrelated to an actual inspection, to observe the
operations of the type of facilities to be inspected.
(c) The Bureau of Medi-Cal Fraud and Patient Abuse shall develop
protocols to ensure that inspections conducted pursuant to this
section are conducted during normal business hours and are completed
in the least intrusive manner possible.
SEC. 14. Section 19996.19 of the Government Code is amended to
read:
19996.19. (a) The Legislature finds and declares all of the
following:
(1) Many individuals in our society possess great productive
potential which goes unused because they cannot meet the requirements
of a standard workweek.
(2) An increasing proportion of workers have family
responsibilities which include the care of dependent elders and the
rearing of children.
(3) There is a lack of adequate, affordable adult or child care to
accommodate the growing need for such services.
(4) The state is benefited by exploring and encouraging
cost-saving supplements to latchkey programs, out-of-home child care
services, and adult dependent care.
(5) Disabled employees or persons with special health needs may
benefit from voluntary reduced worktime.
(6) Voluntary reduced worktime benefits both employers and
employees, by increasing flexibility and decreasing absenteeism,
offering management more flexibility in meeting work requirements,
and filling shortages in various occupations.
(7) Society is benefited by offering a needed alternative for
those individuals who require or prefer shorter hours, despite the
reduced income, thus increasing jobs available to reduce unemployment
while retaining the skills of individuals who have training and
experience.
(8) Employment opportunities are maximized by providing for
voluntary reduced worktime options to a standard workweek.
(b) It is the intent of the Legislature in adopting this section
to pursue all of the following objectives:
(1) To provide for maximum employment opportunities.
(2) To encourage the realization of individual potential.
(3) To increase the numbers and kinds of public and private sector
voluntary reduced worktime options.
(4) To support the creation of a healthy balance between work and
family needs, including the need for additional income.
(5) To encourage voluntary reduced worktime opportunities within
the private as well as public sector.
(6) To develop policies and procedures which support the growth of
voluntary reduced worktime positions.
(7) To promote job stability.
(8) To strengthen the family and promote domestic tranquility and
to benefit the family and society by promoting a balance between work
and home.
(9) To provide for alternative solutions to the growing need for
adequate child care and care for individuals with disabilities.
(c) Nothing in this section shall be construed as superseding
Sections 19996.20 and 19996.21 which provide that the reduced
worktime option shall be made available only to the extent feasible
and as the department finds consistent with maximum employment
opportunity.
SEC. 15. Section 70617 of the Government Code is amended to read:
70617. (a) Except as provided in subdivision (d), the uniform fee
for filing a motion, application, or any other paper requiring a
hearing subsequent to the first paper, is forty dollars ($40). Papers
for which this fee shall be charged include the following:
(1) A motion listed in paragraphs (1) to (12), inclusive, of
subdivision (a) of Section 1005 of the Code of Civil Procedure.
(2) A motion or application to continue a trial date.
(3) An application for examination of a third person controlling
defendant's property under Section 491.110 or 491.150 of the Code of
Civil Procedure.
(4) Discovery motions under Title 4 (commencing with Section
2016.010) of Part 4 of the Code of Civil Procedure.
(5) A motion for a new trial of any civil action or special
proceeding.
(6) An application for an order for a judgment debtor examination
under Section 708.110 or 708.160 of the Code of Civil Procedure.
(7) An application for an order of sale of a dwelling under
Section 704.750 of the Code of Civil Procedure.
(8) An ex parte application that requires a party to give notice
of the ex parte appearance to other parties.
(b) There shall be no fee under subdivision (a) or (c) for filing
any of the following:
(1) A motion, application, demurrer, request, notice, or
stipulation and order that is the first paper filed in an action and
on which a first paper filing fee is paid.
(2) An amended notice of motion.
(3) A civil case management statement.
(4) A request for trial de novo after judicial arbitration.
(5) A stipulation that does not require an order.
(6) A request for an order to prevent civil harassment.
(7) A request for an order to prevent domestic violence.
(8) A request for entry of default or default judgment.
(9) A paper requiring a hearing on a petition for emancipation of
a minor.
(10) A paper requiring a hearing on a petition for an order to
prevent abuse of an elder or an adult with a disability.
(11) A paper requiring a hearing on a petition for a writ of
review, mandate, or prohibition.
(12) A paper requiring a hearing on a petition for a decree of
change of name or gender.
(13) A paper requiring a hearing on a petition to approve the
compromise of a claim of a minor.
(c) The fee for filing the following papers not requiring a
hearing is twenty dollars ($20):
(1) A request, application, or motion for, or a notice of, the
continuance of a hearing or case management conference. The fee shall
be charged no more than once for each continuance. The fee shall not
be charged if the continuance is required by the court.
(2) A stipulation and order.
(3) A request for an order authorizing service of summons by
posting or by publication under Section 415.45 or 415.50 of the Code
of Civil Procedure.
(d) The fee for filing a motion for summary judgment or summary
adjudication of issues is two hundred dollars ($200).
(e) Regardless of whether each motion or matter is heard at a
single hearing or at separate hearings, the filing fees required by
subdivisions (a), (c), and (d) apply separately to each motion or
other paper filed. The Judicial Council may publish rules to give
uniform guidance to courts in applying fees under this section.
SEC. 16. Section 1337.9 of the Health and Safety Code is amended
to read:
1337.9. (a) (1) The state department may deny an application
for, initiate an action to suspend or revoke a certificate for, or
deny a training and examination application for a nurse assistant.
(2) The state department shall deny a training and examination
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been
convicted of a violation or attempted violation of any one or more of
the following Penal Code provisions: Section 187, subdivision (a) of
Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267, inclusive,
Section 273a, 273d, 273.5, or 285, subdivisions (c), (d), (f), and
(g) of Section 286, Section 288, subdivisions (c), (d), (f), and (g)
of Section 288a, Section 288.5, 289, 289.5, 368.2, 368.3, 368.4,
368.5, 368.6, 451, 459, 470, 475, 484, or 484b, Sections 484d to
484j, inclusive, Section 487, 488, 496, 503, 518, or 666, unless any
of the following applies:
(A) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code and the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 of the Penal Code.
(B) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(C) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each conviction
to the department, and the department has made a determination in
accordance with law that the conviction does not disqualify the
applicant from certification.
(D) The person was convicted of a misdemeanor violation of Section
488 or 496, is requesting a renewal of their certificate, and has
had no subsequent convictions in the last five years. This paragraph
shall become inoperative on August 1, 2001.
(b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.
(c) The state department may deny an application or deny, suspend,
or revoke a certificate issued under this article for any of the
following:
(1) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, unless due to circumstances beyond
the nurse assistant's control, physical, mental, or verbal abuse of
patients, or misappropriation of property of patients or others.
(2) Conviction of a crime substantially related to the
qualifications, functions, and duties of a certified nurse assistant,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where the state department determines
that the applicant or certificate holder has not adequately
demonstrated that he or she has been rehabilitated and will present a
threat to the health, safety, or welfare of patients.
(3) Conviction for, or use of, any controlled substance as defined
in Division 10 (commencing with Section 11000), or any dangerous
drug, as defined in Section 4022 of the Business
and Professions Code, or alcoholic beverages,
to an extent or in a manner dangerous or injurious to the certified
nurse assistant, any other person, or the public, to the extent that
this use would impair the ability to conduct, with safety to the
public, the practice authorized by a certificate.
(4) Procuring a certified nurse assistant certificate by fraud or
misrepresentation or mistake.
(5) Making or giving any false statement or information in
conjunction with the application for issuance of a nurse assistant
certificate or training and examination application.
(6) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
(7) Impersonating another certified nurse assistant, a licensed
vocational nurse, or a registered nurse, or permitting or allowing
another person to use a certificate for the purpose of providing
nursing services.
(8) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of, this article.
(d) In determining whether or not to deny the application for
licensure or renewal pursuant to subdivision (c), the department
shall take into consideration the following factors as evidence of
good character and rehabilitation:
(1) The nature and seriousness of the conduct or crime under
consideration and its relationship to their employment duties and
responsibilities.
(2) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(3) The time that has elapsed since the commission of the conduct
or offense referred to in paragraph (1) or (2) and the number of
offenses.
(4) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(5) Any rehabilitation evidence, including character references,
submitted by the person.
(6) Employment history and current employer recommendations.
(7) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(8) The granting by the Governor of a full and unconditional
pardon.
(9) A certificate of rehabilitation from a superior court.
(e) When the state department determines that a certificate shall
be suspended, the state department shall specify the period of actual
suspension. The state department may determine that the suspension
shall be stayed, placing the certificate holder on probation with
specified conditions for a period not to exceed two years. When the
state department determines that probation is the appropriate action,
the certificate holder shall be notified that in lieu of the state
department proceeding with a formal action to suspend the
certification and in lieu of an appeal pursuant to subdivision (h),
the certificate holder may request to enter into a diversion program
agreement. A diversion program agreement shall specify terms and
conditions related to matters, including, but not limited to, work
performance, rehabilitation, training, counseling, progress reports,
and treatment programs. If a certificate holder successfully
completes a diversion program, no action shall be taken upon the
allegations that were the basis for the diversion agreement. Upon
failure of the certificate holder to comply with the terms and
conditions of an agreement, the state department may proceed with a
formal action to suspend or revoke the certification.
(f) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere shall be deemed a conviction within the meaning of
this article. The state department may deny an application or deny,
suspend, or revoke a certification based on a conviction as provided
in this article when the judgment of conviction is entered or when an
order granting probation is made suspending the imposition of
sentence.
(g) Upon determination to deny an application or deny, revoke, or
suspend a certificate, the state department shall notify the
applicant or certificate holder in writing by certified mail of all
of the following:
(1) The reasons for the determination.
(2) The applicant's or certificate holder's right to appeal the
determination if the determination was made under subdivision (c).
(h) (1) Upon written notification that the state department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked under subdivision (c), the
applicant or certificate holder may request an administrative hearing
by submitting a written request to the state department within 20
business days of receipt of the written notification. Upon receipt of
a written request, the state department shall hold an administrative
hearing pursuant to the procedures specified in Section 100171,
except where those procedures are inconsistent with this section.
(2) A hearing under this section shall be conducted within 60 days
of the receipt of the written request of the applicant or
certificate holder submitted pursuant to paragraph (1) by a hearing
officer or administrative law judge designated by the director at a
location, other than the work facility, convenient to the applicant
or certificate holder unless the applicant or certificate holder
agrees to an extension. The hearing shall be tape recorded and a
written decision shall be sent by certified mail to the applicant or
certificate holder within 30 calendar days of the hearing. Except as
specified in subdivision (i), the effective date of an action to
revoke or suspend a certificate shall be specified in the written
decision, or if no administrative hearing is timely requested, the
effective date shall be 21 business days from written notification of
the department's determination to revoke or suspend.
(i) The state department may revoke or suspend a certificate prior
to any hearing when immediate action is necessary in the judgment of
the director to protect the public welfare. Notice of this action,
including a statement of the necessity of immediate action to protect
the public welfare, shall be sent in accordance with subdivision
(g). If the certificate holder requests an administrative hearing
pursuant to subdivision (h), the state department shall hold the
administrative hearing as soon as possible but not later than 30
calendar days from receipt of the request for a hearing. A written
hearing decision upholding or setting aside the action shall be sent
by certified mail to the certificate holder within 30 calendar days
of the hearing.
(j) Upon the expiration of the term of suspension, he or she shall
be reinstated by the state department and shall be entitled to
resume practice unless it is established to the satisfaction of the
state department that the person has practiced as a certified nurse
assistant in this state during the term of suspension. In this event,
the state department shall revoke the person's certificate.
(k) Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the state department shall notify the
employer of the applicant and certificate holder in writing of that
determination, and whether the determination is final, or whether a
hearing is pending relating to this determination. If a licensee or
facility is required to deny employment or terminate employment of
the employee based upon notice from the state that the employee is
determined to be unsuitable for employment under this section, the
licensee or facility shall not incur criminal, civil, unemployment
insurance, workers' compensation, or administrative liability as a
result of that denial or termination.
SEC. 17. Section 1418.91 of the Health and Safety Code is amended
to read:
1418.91. (a) A long-term health care facility shall report all
incidents of alleged abuse , neglect, or suspected abuse
of a resident of the facility to the department immediately, or
within 24 hours.
(b) A failure to comply with the requirements of this section
shall be a class "B" violation.
(c) For purposes of this section, "abuse" shall mean any of the
conduct described in subdivisions (a) and (b) of Section 15610.07 of
the Welfare and Institutions Code.
(d) This section shall not change any reporting requirements under
Section 15630 of the Welfare and Institutions Code, or as otherwise
specified in the Elders and Adults with Disabilities Civil
Protection Act, Chapter 2 (commencing with Section 15600)
of Part 3.2 of Division 9 of the Welfare and Institutions Code.
SEC. 18. Section 1569.885 of the Health and Safety Code is amended
to read:
1569.885. (a) When referring to a resident's obligation to
observe facility rules, the admission agreement shall indicate that
the rules must be reasonable, and that there is a facility procedure
for suggesting changes in the rules. A facility rule shall not
violate any right set forth in this article or in other applicable
laws and regulations.
(b) The admission agreement shall specify that a copy of the
facility grievance procedure for resolution of resident complaints
about facility practices shall be made available to the resident or
his or her representative.
(c) The admission agreement shall inform a resident of the right
to contact the State Department of Social Services, the long-term
care ombudsman, or both, regarding grievances against the facility.
(d) A copy of any applicable resident's rights specified by law or
regulation shall be an attachment to all admission agreements.
(e) The statement of resident's rights attached to admissions
agreements by a residential care facility for the elderly shall
include information on the reporting of suspected or known elder and
adult with a disability abuse, as set forth in Section 1569.889.
SEC. 19. Section 1569.889 of the Health and Safety Code is amended
to read:
1569.889. (a) The personal rights form made available by the
department's Community Care Licensing Division to residential care
facilities for the elderly shall include a statement regarding
procedures for reporting known or suspected elder and adult with
a disability abuse, including the toll-free telephone number
of the State Long-Term Care Ombudsman's CRISISline and a blank space
for the telephone number of the nearest approved organization for
long-term care ombudsperson activities. A residential care facility
for the elderly shall insert in the form's blank space the telephone
number of the nearest approved organization for long-term care
ombudsperson activities. a disability abuse, criminal
neglect, or civil neglect, including blank spaces for the telephone
numbers of the city police department or county sheriff's department
and for the adult protective services agency. A residential care
facility for the elderly shall insert in the form's blank spaces the
telephone numbers of the appropriate local law enforcement agency and
adult protective services agency.
(b) The department's Community Care Licensing Division shall adopt
or amend any regulation and revise any document or policy as
necessary to implement this section.
SEC. 20. Section 1736.5 of the Health and Safety Code is amended
to read:
1736.5. (a) The state department shall deny a training
application and deny, suspend, or revoke a certificate issued under
this article if the applicant or certificate holder has been
convicted of a violation or attempted violation of any of the
following Penal Code provisions: Section 187, subdivision (a) of
Section 192, Section 203, 205, 206, 207, 209, 210, 210.5, 211, 220,
222, 243.4, 245, 261, 262, or 264.1, Sections 265 to 267, inclusive,
Section 273a, 273d, 273.5, or 285, subdivisions (c), (d), (f), and
(g) of Section 286, Section 288, subdivisions (c), (d), (f), and (g)
of Section 288a, Section 288.5, 289, 289.5, 368.2, 368.3, 368.4,
368.5, 368.6, 451, 459, 470, 475, 484, or 484b, Sections 484d to
484j, inclusive, Section 487, 488, 496, 503, 518, or 666, unless any
of the following apply:
(1) The person was convicted of a felony and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of the Penal Code and the information or
accusation against him or her has been dismissed pursuant to Section
1203.4 of the Penal Code.
(2) The person was convicted of a misdemeanor and the information
or accusation against him or her has been dismissed pursuant to
Section 1203.4 or 1203.4a of the Penal Code.
(3) The certificate holder was convicted of a felony or a
misdemeanor, but has previously disclosed the fact of each conviction
to the department, and the department has made a determination in
accordance with law that the conviction does not disqualify the
applicant from certification.
(b) An application or certificate shall be denied, suspended, or
revoked upon conviction in another state of an offense that, if
committed or attempted in this state, would have been punishable as
one or more of the offenses set forth in subdivision (a), unless
evidence of rehabilitation comparable to the certificate of
rehabilitation or dismissal of a misdemeanor set forth in paragraph
(1) or (2) of subdivision (a) is provided.
(c) (1) The state department may deny an application or deny,
suspend, or revoke a certificate issued under this article for any of
the following:
(A) Unprofessional conduct, including, but not limited to,
incompetence, gross negligence, physical, mental, or verbal abuse of
patients, or misappropriation of property of patients or others.
(B) Conviction of a crime substantially related to the
qualifications, functions, and duties of a home health aide,
irrespective of a subsequent order under Section 1203.4, 1203.4a, or
4852.13 of the Penal Code, where the state department determines that
the applicant or certificate holder has not adequately demonstrated
that he or she has been rehabilitated and will present a threat to
the health, safety, or welfare of patients.
(C) Conviction for, or use of, any controlled substance as
defined in Division 10 (commencing with Section 11000), or any
dangerous drug, as defined in Section 4022 of the Business and
Professions Code, or alcoholic beverages, to an extent or in a manner
dangerous or injurious to the home health aide, any other person, or
the public, to the extent that this use would impair the ability to
conduct, with safety to the public, the practice authorized by a
certificate.
(D) Procuring a home health aide certificate by fraud,
misrepresentation, or mistake.
(E) Making or giving any false statement or information in
conjunction with the application for issuance of a home health aide
certificate or training and examination application.
(F) Impersonating any applicant, or acting as proxy for an
applicant, in any examination required under this article for the
issuance of a certificate.
(G) Impersonating another home health aide, a licensed vocational
nurse, or a registered nurse, or permitting or allowing another
person to use a certificate for the purpose of providing nursing
services.
(H) Violating or attempting to violate, directly or indirectly,
or assisting in or abetting the violation of, or conspiring to
violate any provision or term of, this article.
(2) In determining whether or not to deny an application or deny,
suspend, or revoke a certificate issued under this article pursuant
to this subdivision, the department shall take into consideration the
following factors as evidence of good character and rehabilitation:
(A) The nature and seriousness of the offense under consideration
and its relationship to their employment duties and
responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense referred to in subparagraph (A) or (B) and the number of
offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any rehabilitation evidence, including character references,
submitted by the person.
(F) Employment history and current employer recommendations.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) Granting by the Governor of a full and unconditional pardon.
(I) A certificate of rehabilitation from a superior court.
(d) When the state department determines that a certificate shall
be suspended, the state department shall specify the period of
actual suspension. The state department may determine that the
suspension shall be stayed, placing the certificate holder on
probation with specified conditions for a period not to exceed two
years. When the state department determines that probation is the
appropriate action, the certificate holder shall be notified that in
lieu of the state department proceeding with a formal action to
suspend the certification and in lieu of an appeal pursuant to
subdivision (g), the certificate holder may request to enter into a
diversion program agreement. A diversion program agreement shall
specify terms and conditions related to matters, including, but not
limited to, work performance, rehabilitation, training, counseling,
progress reports, and treatment programs. If a certificate holder
successfully completes a diversion program, no action shall be taken
upon the allegations that were the basis for the diversion agreement.
Upon failure of the certificate holder to comply with the terms and
conditions of an agreement, the state department may proceed with a
formal action to suspend or revoke the certification.
(e) A plea or verdict of guilty, or a conviction following a plea
of nolo contendere, shall be deemed a conviction within the meaning
of this article. The state department may deny an application or
deny, suspend, or revoke a certification based on a conviction as
provided in this article when the judgment of conviction is entered
or when an order granting probation is made suspending the imposition
of sentence.
(f) Upon determination to deny an application or deny, revoke, or
suspend a certificate, the state department shall notify the
applicant or certificate holder in writing by certified mail of all
of the following:
(1) The reasons for the determination.
(2) The applicant's or certificate holder's right to appeal the
determination if the determination was made under subdivision (c).
(g) (1) Upon written notification that the state department has
determined that an application shall be denied or a certificate shall
be denied, suspended, or revoked under subdivision (c), the
applicant or certificate holder may request an administrative hearing
by submitting a written request to the state department within 20
business days of receipt of the written notification. Upon receipt of
a written request, the state department shall hold an administrative
hearing pursuant to the procedures specified in Section 100171,
except where those procedures are inconsistent with this section.
(2) A hearing under this section shall be conducted by a hearing
officer or administrative law judge designated by the director at a
location other than the work facility convenient to the applicant or
certificate holder. The hearing shall be tape recorded and a written
decision shall be sent by certified mail to the applicant or
certificate holder within 30 calendar days of the hearing. Except as
specified in subdivision (h), the effective date of an action to
revoke or suspend a certificate shall be specified in the written
decision, or if no administrative hearing is timely requested, the
effective date shall be 21 business days from written notification of
the department's determination to revoke or suspend.
(h) The state department may revoke or suspend a certificate
prior to any hearing when immediate action is necessary in the
judgment of the director to protect the public welfare. Notice of
this action, including a statement of the necessity of immediate
action to protect the public welfare, shall be sent in accordance
with subdivision (f). If the certificate holder requests an
administrative hearing pursuant to subdivision (g), the state
department shall hold the administrative hearing as soon as possible
but not later than 30 calendar days from receipt of the request for a
hearing. A written hearing decision upholding or setting aside the
action shall be sent by certified mail to the certificate holder
within 30 calendar days of the hearing.
(i) Upon the expiration of the term of suspension, he or she
shall be reinstated by the state department and shall be entitled to
resume practice unless it is established to the satisfaction of the
state department that the person has practiced as a home health aide
in California during the term of suspension. In this event, the state
department shall revoke the person's certificate.
(j) Upon a determination to deny an application or deny, revoke,
or suspend a certificate, the department shall notify the employer of
the applicant or certificate holder in writing of that
determination, and whether the determination is final, or whether a
hearing is pending relating to this determination. If a licensee or
facility is required to deny employment or terminate employment of
the employee based upon notice from the state that the employee is
determined to be unsuitable for employment under this section, the
licensee or facility shall not incur criminal, civil, unemployment
insurance, workers' compensation, or administrative liability as a
result of that denial or termination.
SEC. 21. Section 148.5 of the Penal Code is amended to read:
148.5. (a) Every person who reports to any peace officer listed
in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, the
Attorney General, or a deputy attorney general, or a district
attorney, or a deputy district attorney that a felony or misdemeanor
has been committed, knowing the report to be false, is guilty of a
misdemeanor.
(b) Every person who reports to any other peace officer, as
defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2, that a felony or misdemeanor has been committed, knowing the
report to be false, is guilty of a misdemeanor if (1) the false
information is given while the peace officer is engaged in the
performance of his or her duties as a peace officer and (2) the
person providing the false information knows or should have known
that the person receiving the information is a peace officer.
(c) Except as provided in subdivisions (a) and (b), every person
who reports to any employee who is assigned to accept reports from
citizens, either directly or by telephone, and who is employed by a
state or local agency which is designated in Section 830.1, 830.2,
subdivision (e) of Section 830.3, Section 830.31, 830.32, 830.33,
830.34, 830.35, 830.36, 830.37, or 830.4, that a felony or
misdemeanor has been committed, knowing the report to be false, is
guilty of a misdemeanor if (1) the false information is given while
the employee is engaged in the performance of his or her duties as an
agency employee and (2) the person providing the false information
knows or should have known that the person receiving the information
is an agency employee engaged in the performance of the duties
described in this subdivision.
(d) Every person who makes a report to a grand jury that a felony
or misdemeanor has been committed, knowing the report to be false, is
guilty of a misdemeanor. This subdivision shall not be construed as
prohibiting or precluding a charge of perjury or contempt for any
report made under oath in an investigation or proceeding before a
grand jury.
(e) This section does not apply to reports made by persons who are
required by statute to report known or suspected instances of
child abuse, adult with a disability abuse, or elder abuse.
child abuse or elder or adult with a disability abuse
or neglect.
SEC. 22. Section 237 of the Penal Code is amended to read:
237. (a) False imprisonment is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in the county jail
for not more than one year, or by both that fine and imprisonment.
If the false imprisonment be effected by violence, menace, fraud, or
deceit, it shall be punishable by imprisonment in the state prison.
(b) False imprisonment of an elder or an adult with a disability
by use of violence, menace, fraud, or deceit shall be punishable as
described in Section 368.6.
SEC. 23. Section 243.25 of the Penal Code is amended to read:
243.25. When a battery is committed against the person of an
elder or an adult with a disability as defined in Section 368.1, with
knowledge that he or she is an elder or an adult with a disability,
the offense shall be punishable by a fine not to exceed two thousand
dollars ($2,000), or by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment.
SEC. 24. Section 273.6 of the Penal Code is amended to read:
273.6. (a) Any intentional and knowing violation of a protective
order, as defined in Section 6218 of the Family Code, or of an order
issued pursuant to Section 527.6 or 527.8 of the Code of Civil
Procedure, or Section 15657.03 of the Welfare and Institutions Code,
is a misdemeanor punishable by a fine of not more than one thousand
dollars ($1,000), or by imprisonment in a county jail for not more
than one year, or by both that fine and imprisonment.
(b) In the event of a violation of subdivision (a) which results
in physical injury, the person shall be punished by a fine of not
more than two thousand dollars ($2,000), or by imprisonment in a
county jail for not less than 30 days nor more than one year, or by
both that fine and imprisonment. However, if the person is imprisoned
in a county jail for at least 48 hours, the court may, in the
interest of justice and for reasons stated on the record, reduce or
eliminate the 30-day minimum imprisonment required by this
subdivision. In determining whether to reduce or eliminate the
minimum imprisonment pursuant to this subdivision, the court shall
consider the seriousness of the facts before the court, whether there
are additional allegations of a violation of the order during the
pendency of the case before the court, the probability of future
violations, the safety
of the victim, and whether the defendant has successfully completed
or is making progress with counseling.
(c) Subdivisions (a) and (b) shall apply to the following court
orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the
Family Code.
(2) An order excluding one party from the family dwelling or from
the dwelling of the other.
(3) An order enjoining a party from specified behavior which the
court determined was necessary to effectuate the order described in
subdivision (a).
(4) Any order issued by another state that is recognized under
Part 5 (commencing with Section 6400) of Division 10 of the Family
Code.
(d) A subsequent conviction for a violation of an order described
in subdivision (a), occurring within seven years of a prior
conviction for a violation of an order described in subdivision (a)
and involving an act of violence or "a credible threat" of violence,
as defined in subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or in the state
prison.
(e) In the event of a subsequent conviction for a violation of an
order described in subdivision (a) for an act occurring within one
year of a prior conviction for a violation of an order described in
subdivision (a) that results in physical injury to a victim, the
person shall be punished by a fine of not more than two thousand
dollars ($2,000), or by imprisonment in a county jail for not less
than six months nor more than one year, by both that fine and
imprisonment, or by imprisonment in the state prison. However, if the
person is imprisoned in a county jail for at least 30 days, the
court may, in the interest of justice and for reasons stated in the
record, reduce or eliminate the six-month minimum imprisonment
required by this subdivision. In determining whether to reduce or
eliminate the minimum imprisonment pursuant to this subdivision, the
court shall consider the seriousness of the facts before the court,
whether there are additional allegations of a violation of the order
during the pendency of the case before the court, the probability of
future violations, the safety of the victim, and whether the
defendant has successfully completed or is making progress with
counseling.
(f) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders described in
subdivisions (a), (b), (d), and (e).
(g) (1) Every person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, or Section 15657.03 of the Welfare and
Institutions Code, shall be punished under the provisions of
subdivision (g) of Section 12021.
(2) Every person subject to a protective order described in
paragraph (1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (f) of
Section 527.9 of the Code of Civil Procedure, or subdivision (h) of
Section 6389 of the Family Code.
(h) If probation is granted upon conviction of a violation of
subdivision (a), (b), (c), (d), or (e), the court shall impose
probation consistent with the provisions of Section 1203.097, and the
conditions of probation may include, in lieu of a fine, one or both
of the following requirements:
(1) That the defendant make payments to a battered women's shelter
or to a shelter for abused elder persons or adults with
disabilities, up to a maximum of five thousand dollars ($5,000),
pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs
of counseling and other reasonable expenses that the court finds are
the direct result of the defendant's offense.
(i) For any order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under
subdivision (e), the court shall make a determination of the
defendant's ability to pay. In no event shall any order to make
payments to a battered women's shelter be made if it would impair the
ability of the defendant to pay direct restitution to the victim or
court-ordered child support. Where the injury to a married person is
caused in whole or in part by the criminal acts of his or her spouse
in violation of this section, the community property may not be used
to discharge the liability of the offending spouse for restitution to
the injured spouse, required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents, required by this
section, until all separate property of the offending spouse is
exhausted.
SEC. 25. Section 288 of the Penal Code is amended to read:
288. (a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a person with a substantial disability by use of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the victim or another person, with the intent
described in subdivision (a), is guilty of a felony and shall be
punished by imprisonment in the state prison for three, six, or eight
years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a person with a substantial disability, with the
intent described in subdivision (a), is guilty of a public offense
and shall be punished by imprisonment in the state prison for one,
two, or three years, or by imprisonment in a county jail for not more
than one year.
(d) In any arrest or prosecution under this section or Section
288.5, the peace officer, district attorney, and the court shall
consider the needs of the child victim or a victim with a substantial
disability and shall do whatever is necessary, within existing
budgetary resources, and constitutionally permissible to prevent
psychological harm to the child victim or to prevent psychological
harm to the victim who has a substantial disability resulting from
participation in the court process.
(e) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph
(2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elders or persons with substantial disabilities:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve persons with substantial
disabilities and postsecondary educational institutions that serve
persons with substantial disabilities or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elders or persons with
substantial disabilities, including, but not limited to, in-home
supportive services, as defined in Section 14005.14 of the Welfare
and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Person with a substantial disability" means any person who
has a physical or mental impairment that substantially restricts his
or her ability to carry out normal activities or to protect his or
her rights, including, but not limited to, persons who have physical
or developmental disabilities or whose physical or mental abilities
have significantly diminished because of age. "Person with a
substantial disability" includes any person who is admitted as an
inpatient to a 24-hour health facility, as defined in Sections 1250,
1250.2, and 1250.3 of the Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the person with a
substantial disability under care.
SEC. 26. Section 368 of the Penal Code is repealed.
SEC. 27. Chapter 13 (commencing with Section 368) is added to
Title 9 of Part 1 of the Penal Code, to read:
CHAPTER 13. CRIMES AGAINST ELDERS AND ADULTS WITH DISABILITIES
Article 1. General Provisions
368. The Legislature finds and declares that many elders and
persons with disabilities are particularly vulnerable to crimes,
including abuse and criminal neglect, that elders and
persons with disabilities often are disproportionately victimized by
vile crimes that shock the conscience of society, and that crimes
against these victims therefore demand special consideration.
368.1. (a) As used in this chapter:
(1) "Adult with a disability" means any person who is between the
ages of 18 and 64 who has a disability. "Adult with a disability"
includes any person between the ages of 18 and 64 who is admitted as
an inpatient to a 24-hour health facility, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(2) "Caretaker" means any person who has the care, custody, or
control of, or who stands in a position of trust with, an elder or an
adult with a disability.
(3) "Disability" means a physical or mental limitation which
restricts an individual's ability to carry out normal activities or
to protect his or her rights, including, but not limited to, a
physical or developmental disability or the diminishing of physical
or mental abilities because of age.
(4) "Elder" means any person who is 65 years of age or older.
(b) The Legislature declares that paragraphs (1) and (3) of
subdivision (a) do not constitute substantive changes in law, but are
nonsubstantive changes to terms the term
"dependent adult" previously defined in Section 368 of the
Penal Code and Section 15610.23 of the Welfare and Institutions Code,
as repealed by the act that enacts the amendments to this section in
the 2007-08 Regular Session of the Legislature.
(c) Nothing in this chapter shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both subdivisions (b) and (c) of Sections 368.2
for any single offense, nor shall a person receive an additional term
of imprisonment under both Section 12022.7 and subdivision (b) or
(c) of Section 368.2 for any single offense.
(d) In any case in which a person is convicted of violating any
provision of this chapter or any other crime against an elder or an
individual with a disability, the court may require him or her to
receive appropriate counseling as a condition of probation. Any
defendant ordered to be placed in a counseling program shall be
responsible for paying the expense of his or her participation in the
counseling program, as determined by the court. The court shall take
into consideration the ability of the defendant to pay, and no
defendant shall be denied probation because of his or her inability
to pay.
(e) Prosecution for a violation of this chapter shall not preclude
prosecution for a hate crime pursuant to Section 422.85 or 422.86.
Article 2. Crimes
368.2. (a) Any person who knows or reasonably should know that a
person is an elder or an adult with a disability and who, under
circumstances or conditions likely to produce great bodily harm or
death, willfully causes or permits any elder or adult with a
disability to suffer, or inflicts thereon unjustifiable physical pain
or mental suffering, or having the care or custody of any elder or
adult with a disability, willfully causes or permits the person or
health of the elder or adult with a disability to be injured, or
willfully causes or permits the elder or adult with a disability to
be placed in a situation in which his or her person or health is
endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars
($6,000), or by both that fine and imprisonment, or by imprisonment
in the state prison for two, three, or four years.
(b) If in the commission of an offense described in subdivision
(a), the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(1) Three years if the victim is under 70 years of age.
(2) Five years if the victim is 70 years of age or older.
(c) If in the commission of an offense described in subdivision
(a), the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(1) Five years if the victim is under 70 years of age.
(2) Seven years if the victim is 70 years of age or older.
368.3. Any person who knows or reasonably should know that a
person is an elder or an adult with a disability and who, under
circumstances or conditions other than those likely to produce great
bodily harm or death, willfully causes or permits any elder or adult
with a disability to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of
any elder or adult with a disability, willfully causes or permits the
person or health of the elder or adult with a disability to be
injured or willfully causes or permits the elder or adult with a
disability to be placed in a situation in which his or her person or
health may be endangered, is guilty of a misdemeanor. A second or
subsequent violation of this subdivision is punishable by a fine not
to exceed two thousand dollars ($2,000), or by imprisonment in a
county jail not to exceed one year, or by both that fine and
imprisonment.
368.4. Any person who is not a caretaker who violates any
provision of law proscribing theft, embezzlement, forgery, or fraud,
or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of an
elder or an adult with a disability, and who knows or reasonably
should know that the victim is an elder or an adult with a
disability, is punishable by imprisonment in a county jail not
exceeding one year, or in the state prison for two, three, or four
years, when the moneys, labor, goods, services, or real or personal
property taken or obtained is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), by imprisonment in a county jail not exceeding one year, or
by both that fine and imprisonment, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value not exceeding four hundred dollars ($400).
368.5. Any caretaker of an elder or an adult with a disability
who violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates Section 530.5 proscribing identity
theft, with respect to the property or personal identifying
information of that elder or adult with a disability, is punishable
by imprisonment in a county jail not exceeding one year, or in the
state prison for two, three, or four years when the moneys, labor,
goods, services, or real or personal property taken or obtained is of
a value exceeding four hundred dollars ($400), and by a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
when the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding four hundred dollars
($400).
368.6. Any person who commits the false imprisonment of an elder
or an adult with a disability by the use of violence, menace, fraud,
or deceit is punishable by imprisonment in the state prison for two,
three, or four years.
Article 3. Sentencing
368.7. (a) In the case of any person who is convicted of
violating any provision of this chapter or any other crime against an
individual with a disability, the court, absent compelling
circumstances stated on the record, shall make an order protecting
the victim from further acts of violence, threats, stalking, or
harassment by the defendant, including any stay-away conditions the
court deems appropriate, and shall make obedience of the order a
condition of the defendant's probation. The court may also order the
defendant to do one or more of the following as a condition of
probation:
(1) Complete a class or program on sensitivity to disabilities, or
other similar training in the area of civil rights, or a one-year
counseling program intended to reduce the tendency toward violent and
antisocial behavior if that class, program, or training is available
and was developed or authorized by the court or local agencies in
cooperation with organizations serving the disability community.
(2) Make payments or other compensation to a community-based
program or local agency that provides services to people with
disabilities.
(3) Perform a minimum of community service, not to exceed 400
hours, to be performed over a period not to exceed 350 days, during a
time other than his or her hours of employment or school attendance.
(b) Any payments or other compensation ordered under this section
shall be in addition to any restitution payments required under
Section 1202.4 and shall be made only after that restitution is paid
in full.
(c) Nothing in this chapter shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both subdivisions (b) and (c) of Section 368.2 for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and subdivision (b) or (c)
of Section 368.2 for any single offense.
(d) In any case in which a person is convicted of violating any
provision of this chapter or any other crime against an elder or an
individual with a disability, the court may require him or her to
receive appropriate counseling as a condition of probation. Any
defendant ordered to be placed in a counseling program shall be
responsible for paying the expense of his or her participation in the
counseling program, as determined by the court. The court shall take
into consideration the ability of the defendant to pay, and no
defendant shall be denied probation because of his or her inability
to pay.
(e) Prosecution for a violation of this chapter shall not preclude
prosecution for a hate crime pursuant to Section 422.85 or 422.86.
368.8. (a) It is the public policy of this state that the
principal goals of sentencing for crimes against victims with
disabilities are the following:
(1) Punishment for the crimes committed.
(2) Crime and violence prevention, including prevention of
recidivism and prevention of crimes and violence in prisons and
jails.
(3) Restorative justice for the immediate victims of the crimes
and for the classes of persons with disabilities terrorized by the
crimes.
(b) The Judicial Council shall develop a rule of court guiding
sentencing to implement the policy in subdivision (a). In developing
the rule of court, the council shall consult the relevant
subject-matter experts on crimes against victims with disabilities
and experts on crime and violence prevention and restorative justice.
SEC. 28. Section 422.56 of the Penal Code is amended to read:
422.56. For purposes of this title, the following definitions
shall apply:
(a) "Association with a person or group with these actual or
perceived characteristics" includes advocacy for, identification
with, or being on the ground owned or rented by, or adjacent to, any
of the following: a community center, educational facility, family,
individual, office, meeting hall, place of worship, private
institution, public agency, library, or other entity, group, or
person that has, or is identified with people who have, one or more
of those characteristics listed in the definition of "hate crime"
under paragraphs 1 to 6, inclusive, of subdivision (a) of Section
422.55.
(b) "Disability" has the same meaning as in Section 368.1.
(c) "Gender" means sex, and includes a person's gender identity
and gender related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at birth.
(d) "In whole or in part because of" means that the bias
motivation must be a cause in fact of the offense, whether or not
other causes also exist. When multiple concurrent motives exist, the
prohibited bias must be a substantial factor in bringing about the
particular result. There is no requirement that the bias be a main
factor, or that the crime would not have been committed but for the
actual or perceived characteristic. This subdivision does not
constitute a change in, but is declaratory of, existing law under In
re M.S.(1995) 10 Cal. 4th 698 and People v. Superior Court (Aishman)
(1995) 10 Cal. 4th 735.
(e) "Nationality" includes citizenship, country of origin, and
national origin.
(f) "Race or ethnicity" includes ancestry, color, and ethnic
background.
(g) "Religion" includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.
(h) "Sexual orientation" means heterosexuality, homosexuality, or
bisexuality.
(i) "Victim" includes, but is not limited to, a community center,
educational facility, entity, family, group, individual, office,
meeting hall, person, place of worship, private institution, public
agency, library, or other victim or intended victim of the offense.
SEC. 29. Section 422.77 of the Penal Code is amended to read:
422.77. (a) Any willful and knowing violation of any order issued
pursuant to subdivision (a) or (b) of Section 52.1 of the Civil Code
shall be a misdemeanor punishable by a fine of not more than one
thousand dollars ($1,000), or by imprisonment in the county jail for
not more than six months, or by both the fine and imprisonment.
(b) A person who has previously been convicted one or more times
of violating an order issued pursuant to subdivision (a) or (b)
of Section 52.1 of the Civil
Code upon charges separately brought and tried shall be imprisoned in
the county jail for not more than one year. Subject to the
discretion of the court, the prosecution shall have the opportunity
to present witnesses and relevant evidence at the time of the
sentencing of a defendant pursuant to this subdivision.
(c) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of orders issued pursuant to
Section 52.1 of the Civil Code.
SEC. 30. Section 422.85 of the Penal Code is amended to read:
422.85. (a) In the case of any person who is convicted of any
offense against the person or property of another individual, private
institution, or public agency, committed because of the victim's
actual or perceived race, color, ethnicity, religion, nationality,
country of origin, ancestry, disability, gender, or sexual
orientation, including, but not limited to offenses defined in
Section 302, 423.2, 594.3, 11411, 11412, or 11413, or for any hate
crime, or crime against an individual with a disability,
the court, absent compelling circumstances stated on the
record, shall make an order protecting the victim, or known immediate
family or domestic partner of the victim, from further acts of
violence, threats, stalking, or harassment by the defendant,
including any stay-away conditions the court deems appropriate, and
shall make obedience of that order a condition of the defendant's
probation. In these cases the court may also order that the defendant
be required to do one or more of the following as a condition of
probation:
(1) Complete a class or program on sensitivity to the protected
characteristics in Section 422.55, or other similar training in the
area of civil rights, or a one-year counseling program intended to
reduce the tendency toward violent and antisocial behavior if that
class, program, or training is available and was developed or
authorized by the court or local agencies in cooperation with
organizations serving the affected community.
(2) Make payments or other compensation to a community-based
program or local agency that provides services to victims of hate
violence or crimes against victims with disabilities
.
(3) Perform a minimum of community service, not to exceed 400
hours, to be performed over a period not to exceed 350 days, during a
time other than his or her hours of employment or school attendance.
(b) Any payments or other compensation ordered under this section
shall be in addition to restitution payments required under Section
1202.4, including mental health counseling expenses, and shall be
made only after that restitution is paid in full.
SEC. 31. Section 422.86 of the Penal Code is
amended to read:
422.86. (a) It is the public policy of this state that the
principal goals of sentencing for hate crimes and for crimes against
victims with disabilities, are the following:
(1) Punishment for the crimes committed.
(2) Crime and violence prevention, including prevention of
recidivism and prevention of crimes and violence in prisons and
jails.
(3) Restorative justice for the immediate victims of the crimes
and for the classes of persons terrorized by the crimes.
(b) The Judicial Council shall develop a rule or rules of court
guiding sentencing to implement the policy in subdivision (a). In
developing the rule or rules of court, the council shall consult
experts including organizations representing hate crime victims, the
relevant subject-matter experts on crimes against victims with
disabilities and experts on crime and violence prevention and
restorative justice.
SEC. 32. Section 653c of the Penal Code is amended to read:
653c. (a) No person required to register as a sex offender
pursuant to Section 290 for an offense committed against an elder or
an adult with a disability, as defined in Section 368, other than a
resident of the facility, shall enter or remain on the grounds of a
day care or residential facility where elders or adults with
disabilities are regularly present or living, without having
registered with the facility administrator or his or her designees,
except to proceed expeditiously to the office of the facility
administrator or designee for the purpose of registering.
(b) In order to register pursuant to subdivision (a), a sex
offender shall advise the facility administrator or designee that he
or she is a sex offender; provide his or her name, address, and
purpose for entering the facility; and provide proof of identity.
(c) The facility administrator may refuse to register, impose
restrictions on registration, or revoke the registration of a sex
offender if he or she has a reasonable basis for concluding that the
offender's presence or acts would disrupt, or have disrupted, the
facility, any resident, employee, volunteer, or visitor; would
result, or has resulted, in damage to property; the offender's
presence at the facility would interfere, or has interfered, with the
peaceful conduct of the activities of the facility; or would
otherwise place at risk the facility, or any employee, volunteer or
visitor.
(d) Punishment for any violation of this section shall be as
follows:
(1) Upon a first conviction by a fine of not exceeding two
thousand dollars ($2,000), by imprisonment in a county jail for a
period of not more than six months, or by both that fine and
imprisonment.
(2) If the defendant has been previously convicted once of a
violation of this section, by imprisonment in a county jail for a
period of not less than 10 days or more than six months, or by both
imprisonment and a fine of not exceeding two thousand dollars
($2,000), and shall not be released on probation, parole, or any
other basis until he or she has served at least 10 days.
(3) If the defendant has been previously convicted two or more
times of a violation of this section, by imprisonment in a county
jail for a period of not less than 90 days or more than six months,
or by both imprisonment and a fine of not exceeding two thousand
dollars ($2,000), and shall not be released on probation, parole, or
any other basis until he or she has served at least 90 days.
(e) Nothing in this section shall preclude or prohibit prosecution
under any other provision of law.
SEC. 33. Section 801.6 of the Penal Code is amended to read:
801.6. Notwithstanding any other limitation of time described in
this chapter, prosecution for any offense proscribed by Chapter 13
(commencing with Section 368) of Title 9 of Part 1, except for a
violation of any provision of law proscribing theft or embezzlement,
may be filed at any time within five years from the date of
occurrence of such offense.
SEC. 34. Section 803 of the Penal Code is amended to read:
803. (a) Except as provided in this section, a limitation of time
prescribed in this chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the same person for the
same conduct is pending in a court of this state is a part of a
limitation of time prescribed in this chapter.
(c) A limitation of time prescribed in this chapter does not
commence to run until the discovery of an offense described in this
subdivision. This subdivision applies to an offense punishable by
imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the
crimes of theft or embezzlement upon an elder or an adult with a
disability, or the basis of which is misconduct in office by a public
officer, employee, or appointee, including, but not limited to, the
following offenses:
(1) Grand theft of any type, forgery, falsification of public
records, or acceptance of a bribe by a public official or a public
employee.
(2) A violation of Section 72, 118, 118a, 132, 134, or 186.10.
(3) A violation of Section 25540, of any type, or Section 25541 of
the Corporations Code.
(4) A violation of Section 1090 or 27443 of the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud in violation of Section
11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of Section 548 or 550 of
this code or former Section 1871.1, or Section 1871.4, of the
Insurance Code.
(7) A violation of Section 580, 581, 582, 583, or 584 of the
Business and Professions Code.
(8) A violation of Section 22430 of the Business and Professions
Code.
(9) A violation of Section 10690 of the Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of Section 368.4 or 368.5.
(d) If the defendant is out of the state when or after the offense
is committed, the prosecution may be commenced as provided in
Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the
defendant is not within the state shall be a part of those
limitations.
(e) A limitation of time prescribed in this chapter does not
commence to run until the offense has been discovered, or could have
reasonably been discovered, with regard to offenses under Division 7
(commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with
Section 25280) of, or Chapter 6.8 (commencing with Section 25300) of,
Division 20 of, or Part 4 (commencing with Section 41500) of
Division 26 of, the Health and Safety Code, or under Section 386, or
offenses under Chapter 5 (commencing with Section 2000) of Division 2
of, Chapter 9 (commencing with Section 4000) of Division 2 of,
Section 6126 of, Chapter 10 (commencing with Section 7301) of
Division 3 of, or Chapter 19.5 (commencing with Section 22440) of
Division 8 of, the Business and Professions Code.
(f) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date of a report to a California law enforcement agency by a
person of any age alleging that he or she, while under the age of 18
years, was the victim of a crime described in Section 261, 286, 288,
288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of
the Statutes of 1991 relating to penetration by an unknown object.
(2) This subdivision applies only if all of the following occur:
(A) The limitation period specified in Section 800, 801, or 801.1,
whichever is later, has expired.
(B) The crime involved substantial sexual conduct, as described in
subdivision (b) of Section 1203.066, excluding masturbation that is
not mutual.
(C) There is independent evidence that corroborates the victim's
allegation. If the victim was 21 years of age or older at the time of
the report, the independent evidence shall clearly and convincingly
corroborate the victim's allegation.
(3) No evidence may be used to corroborate the victim's allegation
that otherwise would be inadmissible during trial. Independent
evidence does not include the opinions of mental health
professionals.
(4) (A) In a criminal investigation involving any of the crimes
listed in paragraph (1) committed against a child, when the
applicable limitations period has not expired, that period shall be
tolled from the time a party initiates litigation challenging a grand
jury subpoena until the end of the litigation, including any
associated writ or appellate proceeding, or until the final
disclosure of evidence to the investigating or prosecuting agency, if
that disclosure is ordered pursuant to the subpoena after the
litigation.
(B) Nothing in this subdivision affects the definition or
applicability of any evidentiary privilege.
(C) This subdivision shall not apply where a court finds that the
grand jury subpoena was issued or caused to be issued in bad faith.
(g) (1) Notwithstanding any other limitation of time described in
this chapter, a criminal complaint may be filed within one year of
the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions are
met:
(A) The crime is one that is described in subdivision (c) of
Section 290.
(B) The offense was committed prior to January 1, 2001, and
biological evidence collected in connection with the offense is
analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence
collected in connection with the offense is analyzed for DNA type no
later than two years from the date of the offense.
(2) For purposes of this section, "DNA" means deoxyribonucleic
acid.
(h) For any crime, the proof of which depends substantially upon
evidence that was seized under a warrant, but which is unavailable to
the prosecuting authority under the procedures described in People
v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior
Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c)
of Section 1524, relating to claims of evidentiary privilege or
attorney work product, the limitation of time prescribed in this
chapter shall be tolled from the time of the seizure until final
disclosure of the evidence to the prosecuting authority. Nothing in
this section otherwise affects the definition or applicability of any
evidentiary privilege or attorney work product.
SEC. 34.5. Section 830.38 of the Penal
Code is amended to read:
830.38. The officers of a state hospital under the jurisdiction
of the State Department of Mental Health or the State
Department of Developmental Services appointed pursuant to
Section 4313 or 4493 of the Welfare and
Institutions Code, are peace officers whose authority extends to any
place in the state for the purpose of performing their primary duty
or when making an arrest pursuant to Section 836 as to any public
offense with respect to which there is immediate danger to person or
property, or of the escape of the perpetrator of that offense, or
pursuant to Section 8597 or 8598 of the Government Code provided that
the primary duty of the peace officers shall be the enforcement of
the law as set forth in Sections 4311, 4313, and 4491
, and 4493 of the Welfare and Institutions Code.
Those peace officers may carry firearms only if authorized and under
terms and conditions specified by their employing agency.
SEC. 35. Section 836 of the Penal Code is amended to read:
836. (a) A peace officer may arrest a person in obedience to a
warrant, or, pursuant to the authority granted to him or her by
Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2,
without a warrant, may arrest a person whenever any of the following
circumstances occur:
(1) The officer has probable cause to believe that the person to
be arrested has committed a public offense in the officer's presence.
(2) The person arrested has committed a felony, although not in
the officer's presence.
(3) The officer has probable cause to believe that the person to
be arrested has committed a felony, whether or not a felony, in fact,
has been committed.
(b) Any time a peace officer is called out on a crime involving
domestic violence or a crime against a person with a
substantial disability, as defined in Section 386.1, it shall be
domestic violence, including domestic violence against
a person with a disability, it shall be mandatory that the
officer make a good faith effort to inform the victim of his or her
right to make a citizen's arrest. This information shall include
advising the victim how to safely execute the arrest.
(c) (1) When a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order
issued under Section 527.6 of the Code of Civil Procedure, the Family
Code, Section 136.2, 646.91, or paragraph (2) of subdivision (a) of
Section 1203.097 of this code, Section 213.5 or 15657.03 of the
Welfare and Institutions Code, or of a domestic violence protective
or restraining order issued by the court of another state, tribe, or
territory and the peace officer has probable cause to believe that
the person against whom the order is issued has notice of the order
and has committed an act in violation of the order, the officer
shall, consistent with subdivision (b) of Section 13701, make a
lawful arrest of the person without a warrant and take that person
into custody whether or not the violation occurred in the presence of
the arresting officer. The officer shall, as soon as possible after
the arrest, confirm with the appropriate authorities or the Domestic
Violence Protection Order Registry maintained pursuant to Section
6380 of the Family Code that a true copy of the protective order has
been registered, unless the victim provides the officer with a copy
of the protective order.
(2) The person against whom a protective order has been issued
shall be deemed to have notice of the order if the victim presents to
the officer proof of service of the order, the officer confirms with
the appropriate authorities that a true copy of the proof of service
is on file, or the person against whom the protective order was
issued was present at the protective order hearing or was informed by
a peace officer of the contents of the protective order.
(3) In situations where mutual protective orders have been issued
under Division 10 (commencing with Section 6200) of the Family Code,
liability for arrest under this subdivision applies only to those
persons who are reasonably believed to have been the primary
aggressor. In those situations, prior to making an arrest under this
subdivision, the peace officer shall make reasonable efforts to
identify, and may arrest, the primary aggressor involved in the
incident. The primary aggressor is the person determined to be the
most significant, rather than the first, aggressor. In identifying
the primary aggressor, an officer shall consider (A) the intent of
the law to protect victims of domestic violence , including
victims of domestic violence with disabilities, from continuing
abuse, (B) the threats creating fear of physical injury, (C) the
history of domestic violence between the persons involved, and (D)
whether either person involved acted in self-defense.
(d) (1) Notwithstanding paragraph (1) of subdivision (a), if a
suspect commits an assault or battery upon an individual described in
paragraph (2), a peace officer may arrest the suspect without a
warrant where both of the following circumstances apply:
(A) The peace officer has probable cause to believe that the
person to be arrested has committed the assault or battery, whether
or not it has in fact been committed.
(B) The peace officer makes the arrest as soon as probable cause
arises to believe that the person to be arrested has committed the
assault or battery, whether or not it has in fact been committed.
(2) Paragraph (1) applies to cases of assault or battery upon the
following individuals:
(A) A current or former spouse, fiance, or fiancee of the suspect.
(B) A current or former cohabitant of the suspect as defined in
Section 6209 of the Family Code.
(C) A person with whom the suspect currently is having or has
previously had an engagement or dating relationship, as defined in
paragraph (10) of subdivision (f) of Section 243.
(D) A person with whom the suspect has parented a child, or is
presumed to have parented a child pursuant to the Uniform Parentage
Act (Part 3 (commencing with Section 7600) of Division 12 of the
Family Code).
(E) A child of the suspect or a child whose parentage by the
suspect is the subject of an action under the Uniform Parentage Act.
(F) A child of a person in one of the above categories.
(G) A person related to the suspect by consanguinity or affinity
within the second degree.
(H) A person who is 65 years of age or older and who is related to
the suspect by blood or legal guardianship.
(I) A person with a substantial disability, as defined in Section
288, if the suspect is either the caretaker, as defined in Section
368.1, of the person with a substantial disability, or has access to
the person with a substantial disability in the place where that
person sleeps at night.
(e) In addition to the authority to make an arrest without a
warrant pursuant to paragraphs (1) and (3) of subdivision (a), a
peace officer may, without a warrant, arrest a person for a violation
of Section 12025 when all of the following apply:
(1) The officer has reasonable cause to believe that the person to
be arrested has committed the violation of Section 12025.
(2) The violation of Section 12025 occurred within an airport, as
defined in Section 21013 of the Public Utilities Code, in an area to
which access is controlled by the inspection of persons and property.
(3) The peace officer makes the arrest as soon as reasonable cause
arises to believe that the person to be arrested has committed the
violation of Section 12025.
SEC. 36. Section 939.21 of the Penal Code is amended to read:
939.21. (a) Any prosecution witness before the grand jury in a
proceeding involving a violation of Section 243.4, 261, 273a, 273d,
285, 286, 288, 288a, 288.5, or 289, subdivision (1) of Section 314,
Section 368.2, 368.3, 368.4, 368.5, 368.6,or 647.6, or former Section
647a, who is a minor or a dependent person
person with a disability , may, at the discretion of the
prosecution, select a person of his or her own choice to attend the
testimony of the prosecution witness for the purpose of providing
support. The person chosen shall not be a witness in the same
proceeding, or a person described in Section 1070 of the Evidence
Code.
(b) The grand jury foreperson shall inform any person permitted to
attend the grand jury proceedings pursuant to this section that
grand jury proceedings are confidential and may not be discussed with
anyone not in attendance at the proceedings. The foreperson also
shall admonish that person not to prompt, sway, or influence the
witness in any way. Nothing in this section shall preclude the
presiding judge from exercising his or her discretion to remove a
person from the grand jury proceeding whom the judge believes is
prompting, swaying, or influencing the witness.
SEC. 37. Section 1048 of the Penal Code is amended to read:
1048. (a) The issues on the calendar shall be disposed of in the
following order, unless for good cause the court directs an action to
be tried out of its order:
(1) Prosecutions for felony, when the defendant is in custody.
(2) Prosecutions for misdemeanor, when the defendant is in
custody.
(3) Prosecutions for felony, when the defendant is on bail.
(4) Prosecutions for misdemeanor, when the defendant is on bail.
(b) Notwithstanding subdivision (a), all criminal actions in which
(1) a minor is detained as a material witness or is the victim of
the alleged offense, (2) a person who was 70 years of age or older at
the time of the alleged offense or is an adult with a disability, as
defined in Section 368.1, was a witness to, or is the victim of, the
alleged offense or (3) any person is a victim of an alleged
violation of Section 261, 262, 264.1, 273a, 273d, 285, 286, 288,
288a, or 289, committed by the use of force, violence, or the threat
thereof, shall be given precedence over all other criminal actions in
the order of trial. In those actions, continuations shall be granted
by the court only after a hearing and determination of the necessity
thereof, and in any event, the trial shall be commenced within 30
days after arraignment, unless for good cause the court shall direct
the action to be continued, after a hearing and determination of the
necessity of the continuance, and states the findings for a
determination of good cause on the record.
(c) Nothing in this section shall be deemed to provide a statutory
right to a trial within 30 days.
SEC. 38. Section 1170.11 of the Penal Code is amended to read:
1170.11. As used in Section 1170.1, the term "specific
enhancement" means an enhancement that relates to the circumstances
of the crime. It includes, but is not limited to, the enhancements
provided in Sections 186.10, 186.11, 186.22, 186.26, 186.33, 273.4,
289.5, 290.4, 290.45, 290.46, 347, and 368.2, subdivisions (a) and
(b) of Section 422.75, paragraphs (2), (3), (4), and (5) of
subdivision (a) of Section 451.1, paragraphs (2), (3), and (4) of
subdivision (a) of Section 452.1, subdivision (g) of Section 550,
Sections 593a, 600, 667.8, 667.85, 667.9, 667.10, 667.15, 667.16,
667.17, 674, 675, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5,
12022.53, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85,
12022.9, 12022.95, 12072, and 12280 of this code, and in Sections
1522.01 and 11353.1, subdivision (b) of Section 11353.4, Sections
11353.6, 11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1,
11380.7, 25189.5, and 25189.7 of the Health and Safety Code, and in
Sections 20001 and 23558 of the Vehicle Code, and in Sections 10980
and 14107 of the Welfare and Institutions Code.
SEC. 39. Section 1336 of the Penal Code is amended to read:
1336. (a) When a material witness for the defendant, or for the
people, is about to leave the state, or is so sick or infirm as to
afford reasonable grounds for apprehension that he or she will be
unable to attend the trial, or is a person 65 years of age or older,
or an adult with a disability, the defendant or the people may apply
for an order that the witness be examined conditionally.
(b) When there is evidence that the life of a witness is in
jeopardy, the defendant or the people may apply for an order that the
witness be examined conditionally.
(c) As used in this section, "adult with a disability" has the
same meaning as defined in Section 368.1. "Adult with a disability"
includes any person between the ages of 18 and 65, who is admitted as
an inpatient to a 24-hour facility, as defined in Sections 1250,
1250.2, and 1250.3 of the Health and Safety Code.
SEC. 40. Section 1337 of the Penal Code is amended to read:
1337. The application shall be made upon affidavit stating all of
the following:
(1) The nature of the offense charged.
(2) The state of the proceedings in the action.
(3) The name and residence of the witness, and that his or her
testimony is material to the defense or the prosecution of the
action.
(4) That the witness is about to leave the state, or is so sick or
infirm as to afford reasonable grounds for apprehending that he or
she will not be able to attend the trial, or is a person 65 years of
age or older, or an adult
with a disability, or that the life of the witness is in jeopardy.
SEC. 41. Section 1341 of the Penal Code is amended to read:
1341. If, at the time and place so designated, it is shown to the
satisfaction of the magistrate that the witness is not about to
leave the state, or is not sick or infirm, or is not a person 65
years of age or older, or an adult with a disability, or that the
life of the witness is not in jeopardy, or that the application was
made to avoid the examination of the witness at the trial, the
examination cannot take place.
SEC. 42. Section 1347.5 of the Penal Code is amended to read:
1347.5. (a) It is the intent of the Legislature, in enacting this
section, to provide the court with discretion to modify court
procedures, as a reasonable accommodation, to assure that adults and
children with disabilities who have been victims of an alleged sexual
or otherwise specified offense are able to participate effectively
in criminal proceedings. In exercising its discretion, the court
shall balance the rights of the defendant against the right of the
victim who has a disability to full access and participation in the
proceedings, while preserving the integrity of the court's
truthfinding function.
(1) For purposes of this section, the term "disability" is
defined in paragraphs (1) and (2) of subdivision (c) of
Section 11135 of any mental or physical disability, a
s defined in Section 12926 of the Government Code.
(2) The right of the victim is not to confront the perpetrator,
but derives under both Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. Sec. 794) and the Americans with Disabilities Act of 1990
(42 U.S.C. Sec. 12101 and following) as a right to participate in or
benefit from the same services or services that are equal or as
effective as those enjoyed by persons without disabilities.
(b) Notwithstanding any other law, in any criminal proceeding in
which the defendant is charged with a violation of Section 220,
243.4, 261, 261.5, 264.1, 273a, 273d, 285, 286, 288, 288a, 288.5, or
289, subdivision (1) of Section 314, Section 368.2, 368.3, 368.4,
368.5, or 368.6, 647.6, or with any attempt to commit a crime listed
in this subdivision, committed with or upon a person with a
disability, the court in its discretion may make accommodations to
support the person with a disability, including, but not limited to,
any of the following:
(1) Allow the person with a disability reasonable periods of
relief from examination and cross-examination during which he or she
may retire from the courtroom. The judge may also allow other
witnesses in the proceeding to be examined when the person with a
disability retires from the courtroom.
(2) Allow the person with a disability to utilize a support person
pursuant to Section 868.5 or a regional center representative
providing services to a developmentally disabled individual pursuant
to Article 1 (commencing with Section 4620) or Article 2 (commencing
with Section 4640) of Chapter 5 of Division 4.5 of the Welfare and
Institutions Code. In addition to, or instead of, allowing the person
with a disability to utilize a support person or regional center
representative pursuant to this paragraph, the court may allow the
person with a disability to utilize a person necessary to facilitate
the communication or physical needs of the person with a disability.
(3) Notwithstanding Section 68119 of the Government Code, the
judge may remove his or her robe if the judge believes that this
formal attire prevents full participation of the person with a
disability because it is intimidating to him or her.
(4) The judge, parties, witnesses, support persons, and court
personnel may be relocated within the courtroom to facilitate a more
comfortable and personal environment for the person with a disability
as well as accommodating any specific requirements for communication
by that person.
(c) The prosecutor may apply for an order that the testimony of
the person with a disability at the preliminary hearing, in addition
to being stenographically recorded, be recorded and preserved on
videotape.
(1) The application for the order shall be in writing and made
three days prior to the preliminary hearing.
(2) Upon timely receipt of the application, the judge shall order
that the testimony of the person with a disability given at the
preliminary hearing be taken and preserved on videotape. The
videotape shall be transmitted to the clerk of the court in which the
action is pending.
(3) If at the time of trial the court finds that further testimony
would cause the person with a disability emotional trauma so that he
or she is medically unavailable or otherwise unavailable within the
meaning of Section 240 of the Evidence Code, the court may admit the
videotape of his or her testimony at the preliminary hearing as
former testimony under Section 1291 of the Evidence Code.
(4) Any videotape that is taken pursuant to this subdivision is
subject to a protective order of the court for the purpose of
protecting the privacy of the person with a disability. This
subdivision does not affect the provisions of subdivision (b) of
Section 868.7.
(d) Notwithstanding any other law, the court in any criminal
proceeding, upon written notice of the prosecutor made at least three
days prior to the date of the preliminary hearing or trial date on
which the testimony of the person with a disability is scheduled, or
during the course of the proceeding on the court's own motion, may
order that the testimony of the person with a disability be taken by
contemporaneous examination and cross-examination in another place
and out of the presence of the judge, jury, and defendant, and
communicated to the courtroom by means of two-way closed-circuit
television, if the court makes all of the following findings:
(1) The person with a disability will be called on to testify
concerning facts of an alleged sexual offense, or other crime as
specified in subdivision (b), committed on or with that person.
(2) The impact on the person with a disability of one or more of
the factors enumerated in subparagraphs (A) to (D), inclusive, is
shown by clear and convincing evidence to be so substantial as to
make the person with a disability unavailable as a witness unless
closed-circuit television is used. The refusal of the person with a
disability to testify shall not alone constitute sufficient evidence
that the special procedure described in this subdivision is necessary
in order to accommodate the disability. The court may take into
consideration the relationship between the person with a disability
and the defendant or defendants.
(A) Threats of serious bodily injury to be inflicted on the person
with a disability or a family member, of incarceration,
institutionalization, or deportation of the person with a disability
or a family member, or of removal of the person with a disability
from his or her residence by withholding needed services when the
threats come from a service provider, in order to prevent or dissuade
the person with a disability from attending or giving testimony at
any trial or court proceeding or to prevent that person from
reporting the alleged offense or from assisting in criminal
prosecution.
(B) Use of a firearm or any other deadly weapon during the
commission of the crime.
(C) Infliction of great bodily injury upon the person with a
disability during the commission of the crime.
(D) Conduct on the part of the defendant or defense counsel during
the hearing or trial that causes the person with a disability to be
unable to continue his or her testimony.
(e) (1) The hearing on the motion brought pursuant to this
subdivision shall be conducted out of the presence of the jury.
(2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the person with a disability to testify at the hearing; nor
shall the court deny the motion on the ground that the person with a
disability has not testified.
(3) In determining whether the impact on an individual person with
a disability of one or more of the factors enumerated under
paragraph (2) of subdivision (d) is so substantial that the person is
unavailable as a witness unless the closed-circuit television
procedure is employed, the court may question the person with a
disability in chambers, or at some other comfortable place other than
the courtroom, on the record for a reasonable period of time with
the support person described under paragraph (2) of subdivision (b),
the prosecutor, and defense counsel present. At this time the court
shall explain the process to the person with a disability. The
defendant or defendants shall not be present; however, the defendant
or defendants shall have the opportunity to contemporaneously observe
the proceedings by closed-circuit television. Defense counsel shall
be afforded a reasonable opportunity to consult with the defendant or
defendants prior to the conclusion of the session in chambers.
(f) When the court orders the testimony of a victim who is a
person with a disability to be taken in another place outside of the
courtroom, the court shall do all of the following:
(1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order. While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
(2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
assuring the full participation of the victim who is a person with a
disability by accommodating that individual's disability.
(3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
(4) Instruct the support person, if the person is part of the
court's accommodation of the disability, outside of the presence of
the jury, that he or she is not to coach, cue, or in any way
influence or attempt to influence the testimony of the person with a
disability.
(5) Order that a complete record of the examination of the person
with a disability, including the images and voices of all persons who
in any way participate in the examination, be made and preserved on
videotape in addition to being stenographically recorded. The
videotape shall be transmitted to the clerk of the court in which the
action is pending and shall be made available for viewing to the
prosecuting attorney, the defendant, and his or her attorney, during
ordinary business hours. The videotape shall be destroyed after five
years have elapsed from the date of entry of judgment. If an appeal
is filed, the tape shall not be destroyed until a final judgment on
appeal has been ordered. Any videotape that is taken pursuant to this
section is subject to a protective order of the court for the
purpose of protecting the privacy of the person with a disability.
This subdivision does not affect the provisions of subdivision (b) of
Section 868.7.
(g) When the court orders the testimony of a victim who is a
person with a disability to be taken in another place outside the
courtroom, nothing in this section shall prohibit the court from
ordering the victim to appear in the courtroom for a limited purpose,
including the identification of the defendant or defendants as the
court deems necessary.
(h) The examination shall be under oath, and the defendant shall
be able to see and hear the person with a disability. If two-way
closed-circuit television is used, the defendant's image shall be
transmitted live to the person with a disability.
(i) Nothing in this section shall affect the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
(j) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
(k) This section shall not be construed to obviate the need to
provide other accommodations necessary to ensure accessibility of
courtrooms to persons with disabilities nor prescribe a lesser
standard of accessibility or usability for persons with disabilities
than that provided by Title II of the Americans with Disabilities Act
of 1990 (42 U.S.C. Sec. 12101 and following) and federal regulations
adopted pursuant to that act.
() The Judicial Council shall report to the Legislature, no later
than two years after the enactment of this subdivision, on the
frequency of the use and effectiveness of admitting the videotape of
testimony by means of closed-circuit television.
SEC. 43. Section 1377 of the Penal Code is amended to read:
1377. When the person injured by an act constituting a
misdemeanor has a remedy by a civil action, the offense may be
compromised, as provided in Section 1378, except when it is committed
as follows:
(a) By or upon an officer of justice, while in the execution of
the duties of his or her office.
(b) Riotously.
(c) With an intent to commit a felony.
(d) In violation of any court order as described in Section 273.6
or 273.65.
(e) By or upon any family or household member, or upon any person
when the violation involves any person described in Section 6211 of
the Family Code or subdivision (b) of Section 13700 of this code.
(f) Upon an elder or person with a disability, in violation of
Section 368.2, 368.3, 368.4, or 368.5 of this code or Section 15656
of the Welfare and Institutions Code.
(g) Upon a child, as described in Section 647.6 or 11165.6.
SEC. 44. Section 11160 of the Penal Code is amended to read:
11160. (a) Any health practitioner employed in a health facility,
clinic, physician's office, local or state public health department,
or a clinic or other type of facility operated by a local or state
public health department who, in his or her professional capacity or
within the scope of his or her employment, provides medical services
for a physical condition to a patient whom he or she knows or
reasonably suspects is a person described as follows, shall
immediately make a report in accordance with subdivision (b):
(1) Any person suffering from any wound or other physical injury
inflicted by his or her own act or inflicted by another where the
injury is by means of a firearm.
(2) Any person suffering from any wound or other physical injury
inflicted upon the person where the injury is the result of
assaultive or abusive conduct.
(b) Any health practitioner employed in a health facility, clinic,
physician's office, local or state public health department, or a
clinic or other type of facility operated by a local or state public
health department shall make a report regarding persons described in
subdivision (a) to a local law enforcement agency as follows:
(1) A report by telephone shall be made immediately or as soon as
practically possible.
(2) A written report shall be prepared on the standard form
developed in compliance with paragraph (4) of this subdivision, and
Section 11160.2, and adopted by the agency or agencies designated by
the Director of Finance pursuant to Section 13820, or on a form
developed and adopted by another state agency that otherwise fulfills
the requirements of the standard form. The completed form shall be
sent to a local law enforcement agency within two working days of
receiving the information regarding the person.
(3) A local law enforcement agency shall be notified and a written
report shall be prepared and sent pursuant to paragraphs (1) and (2)
even if the person who suffered the wound, other injury, or
assaultive or abusive conduct has expired, regardless of whether or
not the wound, other injury, or assaultive or abusive conduct was a
factor contributing to the death, and even if the evidence of the
conduct of the perpetrator of the wound, other injury, or assaultive
or abusive conduct was discovered during an autopsy.
(4) The report shall include, but shall not be limited to, the
following:
(A) The name of the injured person, if known.
(B) The injured person's whereabouts.
(C) The character and extent of the person's injuries.
(D) The identity of any person the injured person alleges
inflicted the wound, other injury, or assaultive or abusive conduct
upon the injured person.
(c) For the purposes of this section, "injury" shall not include
any psychological or physical condition brought about solely through
the voluntary administration of a narcotic or restricted dangerous
drug.
(d) For the purposes of this section, "assaultive or abusive
conduct" shall include any of the following offenses:
(1) Murder, in violation of Section 187.
(2) Manslaughter, in violation of Section 192 or 192.5.
(3) Mayhem, in violation of Section 203.
(4) Aggravated mayhem, in violation of Section 205.
(5) Torture, in violation of Section 206.
(6) Assault with intent to commit mayhem, rape, sodomy, or oral
copulation, in violation of Section 220.
(7) Administering controlled substances or anesthetic to aid in
commission of a felony, in violation of Section 222.
(8) Battery, in violation of Section 242.
(9) Sexual battery, in violation of Section 243.4.
(10) Incest, in violation of Section 285.
(11) Throwing any vitriol, corrosive acid, or caustic chemical
with intent to injure or disfigure, in violation of Section 244.
(12) Assault with a stun gun or taser, in violation of Section
244.5.
(13) Assault with a deadly weapon, firearm, assault weapon, or
machinegun, or by means likely to produce great bodily injury, in
violation of Section 245.
(14) Rape, in violation of Section 261.
(15) Spousal rape, in violation of Section 262.
(16) Procuring any female to have sex with another man, in
violation of Section 266, 266a, 266b, or 266c.
(17) Child abuse or endangerment, in violation of Section 273a or
273d.
(18) Abuse of spouse or cohabitant, in violation of Section 273.5.
(19) Sodomy, in violation of Section 286.
(20) Lewd and lascivious acts with a child, in violation of
Section 288.
(21) Oral copulation, in violation of Section 288a.
(22) Sexual penetration, in violation of Section 289.
(23) Elder abuse, in violation of Section 368.2, 368.3, or Section
368.6.
(24) An attempt to commit any crime specified in paragraphs (1)
to (23), inclusive.
(e) When two or more persons who are required to report are
present and jointly have knowledge of a known or suspected instance
of violence that is required to be reported pursuant to this section,
and when there is an agreement among these persons to report as a
team, the team may select by mutual agreement a member of the team to
make a report by telephone and a single written report, as required
by subdivision (b). The written report shall be signed by the
selected member of the reporting team. Any member who has knowledge
that the member designated to report has failed to do so shall
thereafter make the report.
(f) The reporting duties under this section are individual, except
as provided in subdivision (e).
(g) No supervisor or administrator shall impede or inhibit the
reporting duties required under this section and no person making a
report pursuant to this section shall be subject to any sanction for
making the report. However, internal procedures to facilitate
reporting and apprise supervisors and administrators of reports may
be established, except that these procedures shall not be
inconsistent with this article. The internal procedures shall not
require any employee required to make a report under this article to
disclose his or her identity to the employer.
(h) For the purposes of this section, it is the Legislature's
intent to avoid duplication of information.
SEC. 45. Section 11160.1 of the Penal Code, as added by Section 2
of Chapter 696 of the Statutes of 1996, is amended to read:
11160.1. (a) Upon adoption of a resolution by the board of
supervisors, the County of San Mateo may establish a pilot project to
create and adopt a standardized form for reporting violence and
abuse of elders or adults with disabilities in compliance with the
requirements of Sections 11160 and 11166 of this code and Chapter 11
(commencing with Section 15600) of Part 3 of Division 9 of the
Welfare and Institutions Code. The standardized form shall be adopted
by the county after consultation with the Department of Justice.
(b) Any person required to report under Sections 11160 and 11166
of this code and Chapter 11 (commencing with Section 15600) of Part 3
of Division 9 of the Welfare and Institutions Code may use the
reporting form developed pursuant to this section to make all
required reports in San Mateo County.
(c) The Department of Justice shall evaluate the pilot project
conducted pursuant to this section and submit a report on the
evaluation to the Legislature on or before January 1, 2002.
(d) This section shall remain in effect only until January 1,
2002, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2002, deletes or extends
that date.
SEC. 46. Section 11161.2 of the Penal Code is amended to read:
11161.2. (a) The Legislature finds and declares that adequate
protection of victims of domestic violence and abuse, neglect, and
other crimes against elders and persons with disabilities has been
hampered by lack of consistent and comprehensive medical
examinations. Enhancing examination procedures, documentation, and
evidence collection will improve investigation and prosecution
efforts.
(b) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall, in cooperation with the State
Department of Health Services Public Health
, the Department of Aging and the ombudsman program, the State
Department of Social Services, law enforcement agencies, the
Department of Justice, the California Association of Crime Lab
Directors, the California District Attorneys Association, the
California State Sheriff's Association, the California Medical
Association, the California Police Chiefs' Association, domestic
violence victim advocates, the California Medical Training
Center, adult and children's protective services, and other
appropriate experts:
(1) Establish medical forensic forms, instructions, and
examination protocol for victims of domestic violence and abuse,
neglect, and other crimes against elders and persons with
disabilities and neglect using as a model the form and guidelines
developed pursuant to Section 13823.5. The form should include, but
not be limited to, a place for a notation concerning each of the
following:
(A) Notification of injuries and a report of suspected domestic
violence or abuse, neglect, and other crimes against elders and
persons with disabilities to law enforcement authorities, Adult
Protective Services, or the State Long-Term Care Ombudsmen, in
accordance with existing reporting procedures.
(B) Obtaining consent for the examination, treatment of injuries,
collection of evidence, and photographing of injuries. Consent to
treatment shall be obtained in accordance with the usual hospital
policy. A victim shall be informed that he or she may refuse to
consent to an examination for evidence of domestic violence and
abuse, neglect, and other crimes against elders and persons with
disabilities, including the collection of physical evidence, but that
refusal is not a ground for denial of treatment of injuries and
disease, if the person wishes to obtain treatment and consents
thereto.
(C) Taking a patient history of domestic violence or abuse,
neglect, and other crimes against elders and persons with
disabilities and other relevant medical history.
(D) Performance of the physical examination for evidence of
domestic violence or abuse, neglect, and other crimes against elders
and persons with disabilities.
(E) Collection of physical evidence of domestic violence or abuse,
neglect, and other crimes against elders and persons with
disabilities.
(F) Collection of other medical and forensic specimens, as
indicated.
(G) Procedures for the preservation and disposition of evidence.
(H) Complete documentation of medical forensic exam findings.
(2) Determine whether it is appropriate and forensically sound to
develop separate or joint forms for documentation of medical forensic
findings for victims of domestic violence and abuse, neglect, and
other crimes against elders and persons with disabilities.
(3) The forms shall become part of the patient's medical record
pursuant to guidelines established by the agency or agencies
designated by the Director of Finance pursuant to Section 13820
advisory committee and subject to the confidentiality laws pertaining
to release of medical forensic examination records.
(c) The forms shall be made accessible for use on the Internet.
(d) By January 1, 2010, and subject to the availability of
adequate funds, the agency or agencies designated by the Director of
Finance pursuant to Section 13820 shall revise the forms to
accurately reflect the changes in this section made by the act
enacted during the 2007-08 Regular Session that amended this section.
SEC. 47. Section 11163.6 of the Penal Code is amended to read:
11163.6. In order to ensure consistent and uniform results, data
may be collected and summarized by the domestic violence death review
teams to show the statistical occurrence of domestic violence deaths
in the team's county that occur under the following circumstances:
(a) The deceased was a victim of a homicide committed by a current
or former spouse, fiance, or dating partner.
(b) The deceased was the victim of a suicide, was the current or
former spouse, fiance, or dating partner of the perpetrator and was
also the victim of previous acts of domestic violence.
(c) The deceased was the perpetrator of the homicide of a former
or current spouse, fiance, or dating partner and the perpetrator was
also the victim of a suicide.
(d) The deceased was the perpetrator of the homicide of a former
or current spouse, fiance, or dating partner and the perpetrator was
also the victim of a homicide related to the domestic homicide
incident.
(e) The deceased was a child of either the homicide victim or the
perpetrator, or both.
(f) The deceased was a current or former spouse, fiance, or dating
partner of the current or former spouse, fiance, or dating partner
of the perpetrator.
(g) The
deceased was a law enforcement officer, emergency medical personnel,
or other agency responding to a domestic violence incident.
(h) The deceased was a family member, other than identified above,
of the perpetrator.
(i) The deceased was the perpetrator of the homicide of a family
member, other than identified above.
(j) The deceased had a disability and the homicide was related to
domestic violence.
(k) The deceased was a person not included in the above categories
and the homicide was related to domestic violence.
SEC. 48. Section 11165.7 of the Penal Code is amended to read:
11165.7. (a) As used in this article, "mandated reporter" is
defined as any of the following:
(1) A teacher.
(2) An instructional aide.
(3) A teacher's aide or teacher's assistant employed by any public
or private school.
(4) A classified employee of any public school.
(5) An administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of any public
or private school.
(6) An administrator of a public or private day camp.
(7) An administrator or employee of a public or private youth
center, youth recreation program, or youth organization.
(8) An administrator or employee of a public or private
organization whose duties require direct contact and supervision of
children.
(9) Any employee of a county office of education or the California
Department of Education, whose duties bring the employee into
contact with children on a regular basis.
(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.
(11) A Head Start program teacher.
(12) A licensing worker or licensing evaluator employed by a
licensing agency as defined in Section 11165.11.
(13) A public assistance worker.
(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.
(15) A social worker, probation officer, or parole officer.
(16) An employee of a school district police or security
department.
(17) Any person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in any public or
private school.
(18) A district attorney investigator, inspector, or local child
support agency caseworker unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to Section
317 of the Welfare and Institutions Code to represent a minor.
(19) A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, who is not otherwise described in
this section.
(20) A firefighter, except for volunteer firefighters.
(21) A physician, surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage, family and child counselor,
clinical social worker, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code.
(22) Any emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(23) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(24) A marriage, family, and child therapist trainee, as defined
in subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(25) An unlicensed marriage, family, and child therapist intern
registered under Section 4980.44 of the Business and Professions
Code.
(26) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(27) A coroner.
(28) A medical examiner, or any other person who performs
autopsies.
(29) A commercial film and photographic print processor, as
specified in subdivision (e) of Section 11166. As used in this
article, "commercial film and photographic print processor" means any
person who develops exposed photographic film into negatives,
slides, or prints, or who makes prints from negatives or slides, for
compensation. The term includes any employee of such a person; it
does not include a person who develops film or makes prints for a
public agency.
(30) A child visitation monitor. As used in this article, "child
visitation monitor" means any person who, for financial compensation,
acts as monitor of a visit between a child and any other person when
the monitoring of that visit has been ordered by a court of law.
(31) An animal control officer or humane society officer. For the
purposes of this article, the following terms have the following
meanings:
(A) "Animal control officer" means any person employed by a city,
county, or city and county for the purpose of enforcing animal
control laws or regulations.
(B) "Humane society officer" means any person appointed or
employed by a public or private entity as a humane officer who is
qualified pursuant to Section 14502 or 14503 of the Corporations
Code.
(32) A clergy member, as specified in subdivision (d) of Section
11166. As used in this article, "clergy member" has the same meaning
as in Section 15610.19 of the Welfare and Institutions Code.
(33) Any custodian of records of a clergy member, as specified in
this section and subdivision (d) of Section 11166.
(34) Any employee of any police department, county sheriff's
department, county probation department, or county welfare
department.
(35) An employee or volunteer of a Court Appointed Special
Advocate program, as defined in Rule 1424 of the California Rules of
Court.
(36) A custodial officer as defined in Section 831.5.
(37) Any person providing services to a minor child under Section
12300 or 12300.1 of the Welfare and Institutions Code.
(b) Except as provided in paragraph (35) of subdivision (a),
volunteers of public or private organizations whose duties require
direct contact with and supervision of children are not mandated
reporters but are encouraged to obtain training in the identification
and reporting of child abuse and neglect, including against a child
with a disability, and are further encouraged to report known or
suspected instances of child abuse or neglect, including against a
child with a disability, to an agency specified in Section 11165.9.
(c) Employers are strongly encouraged to provide their employees
who are mandated reporters with training in the duties imposed by
this article. This training shall include training in child abuse and
neglect identification and training in child abuse and neglect
reporting. Whether or not employers provide their employees with
training in child abuse and neglect identification and reporting, the
employers shall provide their employees who are mandated reporters
with the statement required pursuant to subdivision (a) of Section
11166.5.
(d) School districts that do not train their employees specified
in subdivision (a) in the duties of mandated reporters under the
child abuse reporting laws shall report to the State Department of
Education the reasons why this training is not provided.
(e) Unless otherwise specifically provided, the absence of
training shall not excuse a mandated reporter from the duties imposed
by this article.
(f) Public and private organizations are encouraged to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification and
reporting of child abuse and neglect, including against children with
disabilities.
SEC. 48.1. Section 11165.9 of the Penal Code is amended to read:
11165.9. Reports of suspected child abuse or neglect, including
against children with disabilities, shall be made by mandated
reporters, or in the case of reports pursuant to Section 11166.05,
may be made, to any police department or sheriff's department, not
including a school district police or security department, county
probation department, if designated by the county to receive mandated
reports, or the county welfare department. Any of those agencies
shall accept a report of suspected child abuse or neglect, including
against a child with a disability, whether offered by a mandated
reporter or another person, or referred by another agency, even if
the agency to whom the report is being made lacks subject matter or
geographical jurisdiction to investigate the reported case, unless
the agency can immediately electronically transfer the call to an
agency with proper jurisdiction. When an agency takes a report about
a case of suspected child abuse or neglect, including against a child
with a disability, in which that agency lacks jurisdiction, the
agency shall immediately refer the case by telephone, fax, or
electronic transmission to an agency with proper jurisdiction.
Agencies that are required to receive reports of suspected child
abuse or neglect, including against children with disabilities, may
not refuse to accept a report of suspected child abuse or neglect
from a mandated reporter or another person unless otherwise
authorized pursuant to this section, and shall maintain a record of
all reports received.
SEC. 48.2. Section 11165.14 of the Penal Code is amended to read:
11165.14. The appropriate local law enforcement agency shall
investigate a child abuse complaint, including a complaint of abuse
or neglect against a child with a disability, filed by a parent or
guardian of a pupil with a school or an agency specified in Section
11165.9 against a school employee or other person that commits an act
of child abuse, as defined in this article, against a pupil at a
schoolsite and shall transmit a substantiated report, as defined in
Section 11165.12, of that investigation to the governing board of the
appropriate school district or county office of education. A
substantiated report received by a governing board of a school
district or county office of education shall be subject to the
provisions of Section 44031 of the Education Code.
SEC. 49. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (d), and in Section
11166.05, a mandated reporter shall make a report to an agency
specified in Section 11165.9 whenever the mandated reporter, in his
or her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child, including a child
with a disability, whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. The mandated
reporter shall make an initial report to the agency immediately or as
soon as is practicably possible by telephone and the mandated
reporter shall prepare and send, fax, or electronically transmit a
written followup report thereof within 36 hours of receiving the
information concerning the incident. The mandated reporter may
include with the report any nonprivileged documentary evidence the
mandated reporter possesses relating to the incident.
(1) For the purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. For the purpose of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent, faxed, or electronically transmitted even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death, and even if suspected child abuse was
discovered during an autopsy.
(3) Any report made by a mandated reporter pursuant to this
section shall be known as a mandated report.
(b) If after reasonable efforts a mandated reporter is unable to
submit an initial report by telephone, he or she shall immediately or
as soon as is practicably possible, by fax or electronic
transmission, make a one-time automated written report on the form
prescribed by the Department of Justice, and shall also be available
to respond to a telephone followup call by the agency with which he
or she filed the report. A mandated reporter who files a one-time
automated written report because he or she was unable to submit an
initial report by telephone is not required to submit a written
followup report.
(1) The one-time automated written report form prescribed by the
Department of Justice shall be clearly identifiable so that it is not
mistaken for a standard written followup report. In addition, the
automated one-time report shall contain a section that allows the
mandated reporter to state the reason the initial telephone call was
not able to be completed. The reason for the submission of the
one-time automated written report in lieu of the procedure prescribed
in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department shall work
with stakeholders to modify reporting forms and the CWS/CMS as is
necessary to accommodate the changes enacted by these provisions.
(2) This subdivision shall not become operative until the CWS/CMS
is updated to capture the information prescribed in this subdivision.
(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009, whichever
occurs first.
(4) On the inoperative date of these provisions, a report shall be
submitted to the counties and the Legislature by the Department of
Social Services that reflects the data collected from automated
one-time reports indicating the reasons stated as to why the
automated one-time report was filed in lieu of the initial telephone
report.
(5) Nothing in this section shall supersede the requirement that a
mandated reporter first attempt to make a report via telephone, or
that agencies specified in Section 11165.9 accept reports from
mandated reporters and other persons as required.
(c) Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(d) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(e) Any commercial film and photographic print processor who has
knowledge of or observes, within the scope of his or her professional
capacity or employment, any film, photograph, videotape, negative,
or slide depicting a child under the age of 16 years engaged in an
act of sexual conduct, shall report the instance of suspected child
abuse to the law enforcement agency having jurisdiction over the case
immediately, or as soon as practicably possible, by telephone and
shall prepare and send, fax, or electronically transmit a written
report of it with a copy of the film, photograph, videotape,
negative, or slide attached within 36 hours of receiving the
information concerning the incident. As used in this subdivision,
"sexual conduct" means any of the following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
(f) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(g) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9. For
purposes of this section, "any other person" includes a mandated
reporter who acts in his or her private capacity and not in his or
her professional capacity or within the scope of his or her
employment.
(h) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(i) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject to
any sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(j) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child which relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall be reported only to the county welfare
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(k) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone, fax, or electronic
transmission to the agency given responsibility for investigation of
cases under Section 300 of the Welfare and Institutions Code and to
the district attorney's office every known or suspected instance of
child abuse or neglect reported to it, except acts or omissions
coming within subdivision (b) of Section 11165.2, which shall be
reported only to the county welfare or probation department. A law
enforcement agency shall report to the county welfare or probation
department every known or suspected instance of child abuse or
neglect reported to it which is alleged to have occurred as a result
of the action of a person responsible for the child's welfare, or as
the result of the failure of a person responsible for the child's
welfare to adequately protect the minor from abuse when the person
responsible for the child's welfare knew or reasonably should have
known that the minor was in danger of abuse. A law enforcement agency
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
SEC. 49.1. Section 11166.05 of the Penal Code is amended to read:
11166.05. Any mandated reporter who has knowledge of or who
reasonably suspects that a child, including a child with a
disability, is suffering serious emotional damage or is at a
substantial risk of suffering serious emotional damage, evidenced by
states of being or behavior, including, but not limited to, severe
anxiety, depression, withdrawal, or untoward aggressive behavior
toward self or others, may make a report to an agency specified in
Section 11165.9.
SEC. 50. Section 11174.32 of the Penal Code is amended to read:
11174.32. (a) Each county may establish an interagency child
death review team to assist local agencies in identifying and
reviewing suspicious child deaths and facilitating communication
among persons who perform autopsies and the various persons and
agencies involved in child abuse or neglect cases. Interagency child
death review teams have been used successfully to ensure that
incidents of child abuse or neglect are recognized and other siblings
and nonoffending family members receive the appropriate services in
cases where a child has expired.
(b) Each county may develop a protocol that may be used as a
guideline by persons performing autopsies on children to assist
coroners and other persons who perform autopsies in the
identification of child abuse or neglect, in the determination of
whether child abuse or neglect contributed to death or whether child
abuse or neglect had occurred prior to but was not the actual cause
of death, and in the proper written reporting procedures for child
abuse or neglect, including the designation of the cause and mode of
death.
(c) In developing an interagency child death review team and an
autopsy protocol, each county, working in consultation with local
members of the California State Coroner's Association and county
child abuse prevention coordinating councils, may solicit suggestions
and final comments from persons, including, but not limited to, the
following:
(1) Experts in the field of forensic pathology.
(2) Pediatricians with expertise in child abuse, including crimes
against children with disabilities.
(3) Coroners and medical examiners.
(4) Criminologists.
(5) District attorneys.
(6) Child protective services staff.
(7) Law enforcement personnel.
(8) Representatives of local agencies which are involved with
child abuse or neglect reporting.
(9) County health department staff who deals with children's
health issues.
(10) Local professional associations of persons described in
paragraphs (1) to (9), inclusive.
(d) Records exempt from disclosure to third parties pursuant to
state or federal law shall remain exempt from disclosure when they
are in the possession of a child death review team.
(e) (1) No less than once each year, each child death review team
shall make available to the public findings, conclusions and
recommendations of the team, including aggregate statistical data on
the incidences and causes of child deaths.
(2) In its report, the child death review team shall withhold the
last name of the child that is subject to a review or the name of the
deceased child's siblings unless the name has been publicly
disclosed or is required to be disclosed by state law, federal law,
or court order.
SEC. 51. Section 11174.33 of the Penal Code is amended to read:
11174.33. Subject to available funding, the Attorney General,
working with the California Consortium of Child Abuse Councils and
other relevant subject-matter experts from among those listed in
Section 15592 of the Welfare and Institutions Code, shall do the
following:
(a) Develop a protocol for the development and implementation of
interagency child death teams for use by counties, which shall
include relevant procedures for both urban and rural counties. The
protocol shall be designed to facilitate communication among persons
who perform autopsies and the various persons and agencies involved
in child abuse or neglect cases so that incidents of child abuse or
neglect are recognized and other siblings and nonoffending family
members receive the appropriate services in cases where
a child has expired.
(b) Revise the protocol by January 1, 2010, to comply with the
requirements of the act enacted during the 2007-08 Regular Session
that amended this section.
SEC. 52. Section 11174.34 of the Penal Code is amended to read:
11174.34. (a) (1) The purpose of this section shall be to
coordinate and integrate state and local efforts to address fatal
child abuse or neglect, including crimes against children with
disabilities and to create a body of information to prevent child
deaths.
(2) It is the intent of the Legislature that the California State
Child Death Review Council, the Department of Justice, the State
Department of Social Services, the State Department of
Health Services Public Health , and state and
local child death review teams shall share data and other information
necessary from the Department of Justice Child Abuse Central Index
and Supplemental Homicide File, the State Department of
Health Services Public Health Vital Statistics
and the Department of Social Services Child Welfare Services/Case
Management System files to establish accurate information on the
nature and extent of child abuse or neglect related fatalities in
California as those documents relate to child fatality cases.
Further, it is the intent of the Legislature to ensure that records
of child abuse or neglect related fatalities are entered into the
State Department of Social Services, Child Welfare Services/Case
Management System. It is also the intent that training and technical
assistance be provided to child death review teams and professionals
in the child protection system regarding multiagency case review.
(b) (1) It shall be the duty of the California State Child Death
Review Council to oversee the statewide coordination and integration
of state and local efforts to address fatal child abuse or neglect,
including crimes against children with disabilities, and to create a
body of information to prevent child deaths. The Department of
Justice, the State Department of Social Services, the State
Department of Health Services Public Health
, the California Coroner's Association, the County Welfare
Directors Association, Prevent Child Abuse California, the California
Homicide Investigators Association, the agency or agencies
designated by the Director of Finance pursuant to Section 13820, the
Inter-Agency Council on Child Abuse and Neglect/National Center on
Child Fatality Review, the California Conference of Local Health
Officers, the California Conference of Local Directors of Maternal,
Child, and Adolescent Health, the California Conference of Local
Health Department Nursing Directors, the California District
Attorneys Association, and at least three regional representatives,
chosen by the other members of the council, working collaboratively
for the purposes of this section, shall be known as the California
State Child Death Review Council. The council shall select a
chairperson or cochairpersons from the members.
(2) The Department of Justice is hereby authorized to carry out
the purposes of this section by coordinating council activities and
working collaboratively with the agencies and organizations in
paragraph (1), and may consult with other representatives of other
agencies and private organizations, to help accomplish the purpose of
this section.
(c) Meetings of the agencies and organizations involved shall be
convened by a representative of the Department of Justice. All
meetings convened between the Department of Justice and any
organizations required to carry out the purpose of this section shall
take place in this state. There shall be a minimum of four meetings
per calendar year.
(d) To accomplish the purpose of this section, the Department of
Justice and agencies and organizations involved shall engage in the
following activities:
(1) Analyze and interpret state and local data on child death in
an annual report to be submitted to local child death review teams
with copies to the Governor and the Legislature, no later than July 1
each year. Copies of the report shall also be distributed to public
officials in the state who deal with child abuse issues and to those
agencies responsible for child death investigation in each county.
The report shall contain, but not be limited to, information provided
by state agencies and the county child death review teams for the
preceding year.
The state data shall include the Department of Justice Child Abuse
Central Index and Supplemental Homicide File, the State Department
of Health Services Public Health Vital
Statistics, and the State Department of Social Services Child Welfare
Services/Case Management System.
(2) In conjunction with the agency or agencies designated by the
Director of Finance pursuant to Section 13820, coordinate statewide
and local training for county death review teams and the members of
the teams, including, but not limited to, training in the application
of the interagency child death investigation protocols and
procedures established under Sections 11166.7 and 11166.8 to identify
child deaths associated with abuse or neglect.
(e) The State Department of Health Services
Public Health , in collaboration with the California State
Child Death Review Council, shall design, test and implement a
statewide child abuse or neglect fatality tracking system
incorporating information collected by local child death review
teams. The department shall:
(1) Establish a minimum case selection criteria and review
protocols of local child death review teams.
(2) Develop a standard child death review form with a minimum core
set of data elements to be used by local child death review teams,
and collect and analyze that data.
(3) Establish procedural safeguards in order to maintain
appropriate confidentiality and integrity of the data.
(4) Conduct annual reviews to reconcile data reported to the State
Department of Health Services Public Health
Vital Statistics, Department of Justice Homicide Files and
Child Abuse Central Index, and the State Department of Social
Services Child Welfare Services/Case Management System data systems,
with data provided from local child death review teams.
(5) Provide technical assistance to local child death review teams
in implementing and maintaining the tracking system.
(6) This subdivision shall be implemented only to the extent that
funds are appropriated for its purposes in the Budget Act.
(f) Local child death review teams shall participate in a
statewide child abuse or neglect fatalities monitoring system by:
(1) Meeting the minimum standard protocols set forth by the State
Department of Health Services Public Health
in collaboration with the California State Child Death Review
Council.
(2) Using the standard data form to submit information on child
abuse or neglect fatalities in a timely manner established by the
State Department of Health Services Public
Health .
(g) The California State Child Death Review Council shall monitor
the implementation of the monitoring system and incorporate the
results and findings of the system and review into an annual report.
(h) The Department of Justice shall direct the creation,
maintenance, updating, and distribution electronically and by paper,
of a statewide child death review team directory, which shall contain
the names of the members of the agencies and private organizations
participating under this section, and the members of local child
death review teams and local liaisons to those teams. The department
shall work in collaboration with members of the California State
Child Death Review Council to develop a directory of professional
experts, resources, and information from relevant agencies and
organizations and local child death review teams, and to facilitate
regional working relationships among teams. The Department of Justice
shall maintain and update these directories annually.
(i) The agencies or private organizations participating under this
section shall participate without reimbursement from the state.
Costs incurred by participants for travel or per diem shall be borne
by the participant agency or organization. The participants shall be
responsible for collecting and compiling information to be included
in the annual report. The Department of Justice shall be responsible
for printing and distributing the annual report using available funds
and existing resources.
(j) The agency or agencies designated by the Director of Finance
pursuant to Section 13820, in coordination with the State Department
of Social Services, the Department of Justice, and the California
State Child Death Review Council shall contract with state or
nationally recognized organizations in the area of child death review
to conduct statewide training and technical assistance for local
child death review teams and relevant organizations, develop
standardized definitions for fatal child abuse or neglect, including
crimes against children with disabilities, develop protocols for the
investigation of fatal child abuse or neglect, and address relevant
issues such as grief and mourning, data collection, training for
medical personnel in the identification of child abuse or neglect
fatalities, domestic violence fatality review, and other related
topics and programs. The provisions of this subdivision shall only be
implemented to the extent that the agency or agencies designated by
the Director of Finance pursuant to Section 13820 can absorb the
costs of implementation within its current funding, or to the extent
that funds are appropriated for its purposes in the Budget Act.
(k) Law enforcement and child welfare agencies shall cross-report
all cases of child death suspected to be related to child abuse or
neglect whether or not the deceased child has any known surviving
siblings.
() County child welfare agencies shall create a record in the
Child Welfare Services/Case Management System (CWS/CMS) on all cases
of child death suspected to be related to child abuse or neglect,
whether or not the deceased child has any known surviving siblings.
Upon notification that the death was determined not to be related to
child abuse or neglect, the child welfare agency shall enter that
information into the Child Welfare Services/Case Management System.
SEC. 53. Section 11174.35 of the Penal Code is amended to read:
11174.35. The State Department of Social Services shall work with
state and local child death review teams and child protective
services agencies in order to identify child death cases that were,
or should have been, reported to or by county child protective
services agencies. Findings made pursuant to this section shall be
used to determine the extent of child abuse or neglect fatalities
occurring in families known to child protective services agencies and
to define child welfare training needs for reporting,
cross-reporting, data integration, and involvement by child
protective services agencies in multiagency review in child deaths.
The State Department of Social Services, the State Department of
Health Care Services, and the Department of Justice, working with
relevant subject-matter experts from among those listed in Section
15592 of the Welfare and Institutions Code shall develop a plan to
track and maintain data on child deaths from abuse or neglect,
including crimes against children with disabilities. Subject to the
availability of funding, the plan to track and maintain the data
shall be updated by January 1, 2010.
SEC. 54. The heading of Article 2.7 (commencing with Section
11174.4) of Chapter 2 of Title 1 of Part 4 of the Penal Code is
amended to read:
Article 2.7. Elder and Adult with a Disability Death Review
Teams
SEC. 55. Section 11174.5 of the Penal Code is amended to read:
11174.5. (a) Each county may establish an interagency elder and
adult with a disability death team to assist local agencies in
identifying and reviewing suspicious elder and adult with a
disability deaths and facilitating communication among persons who
perform autopsies and the various persons and agencies involved in
elder abuse or neglect cases or other crimes against elders and
adults with disabilities.
(b) Each county may develop a protocol that may be used as a
guideline by persons performing autopsies on elders and adults with
disabilities to assist coroners and other persons who perform
autopsies in the identification of abuse of elders and adults with
disabilities, in the determination of whether the abuse or neglect of
the elder or adult with a disability contributed to death or whether
the abuse or neglect of the elder or adult with a disability had
occurred prior to but was not the actual cause of death, and in the
proper written reporting procedures for abuse or neglect of elders
and adults with disabilities, including the designation of the cause
and mode of death.
SEC. 56. Section 11174.6 of the Penal Code is amended to read:
11174.6. County elder and adults with disabilities death review
teams may be comprised of, but not limited to, the following:
(a) Experts in the field of forensic pathology.
(b) Medical personnel with expertise in the abuse and neglect and
other crimes against elders and adults with disabilities.
(c) Coroners and medical examiners.
(d) District attorneys and city attorneys.
(e) County or local staff including, but not limited to:
(1) Adult protective services staff.
(2) Public administrator, guardian, and conservator staff.
(3) County health department staff who deal with elder and adult
with a disability health issues.
(4) County counsel.
(f) County and state law enforcement personnel.
(g) Local long-term care ombudsman.
(h) Community care licensing staff and investigators.
(i) Geriatric mental health experts.
(j) Criminologists.
(k) Representatives of local agencies that are involved with
oversight of adult protective services and reporting the abuse or
neglect of elders or adults with disabilities.
() Local professional associations of persons described in
subdivisions (a) to (k), inclusive.
SEC. 57. Section 11174.7 of the Penal Code is amended to read:
11174.7. (a) An oral or written communication or a document
shared within or produced by an elder and adult with a disability
death review team related to an elder death review is confidential
and not subject to disclosure or discoverable by another third party.
(b) An oral or written communication or a document provided by a
third party to an elder and adult with a disability death review
team, or between a third party and an elder and adult with a
disability death review team, is confidential and not subject to
disclosure or discoverable by a third party.
(c) Notwithstanding subdivisions (a) and (b), recommendations of
an elder and adult with a disability death review team upon the
completion of a review may be disclosed at the discretion of a
majority of the members of the elder and adult with a disability
death review team.
SEC. 58. Section 11174.8 of the Penal Code is amended to read:
11174.8. (a) Each organization represented on an elder and adult
with a disability death review team may share with other members of
the team information in its possession concerning the decedent who is
the subject of the review or any person who was in contact with the
decedent and any other information deemed by the organization to be
pertinent to the review. Any information shared by an organization
with other members of a team is confidential. The intent of this
subdivision is to permit the disclosure to members of the team of any
information deemed confidential, privileged, or prohibited from
disclosure by any other provision of law.
(b) (1) Written and oral information may be disclosed to an elder
and adult with a disability death review team established pursuant to
this section. The team may make a request in writing for the
information sought and any person with information of the kind
described in paragraph (3) may rely on the request in determining
whether information may be disclosed to the team.
(2) No individual or agency that has information governed by this
subdivision shall be required to disclose information. The intent of
this subdivision is to allow the voluntary disclosure of information
by the individual or agency that has the information.
(3) The following information may be disclosed pursuant to this
subdivision:
(A) Notwithstanding Section 56.10 of the Civil Code, medical
information.
(B) Notwithstanding Section 5328 of the Welfare and Institutions
Code, mental health information.
(C) Notwithstanding Section 15633.5 of the Welfare and
Institutions Code, information from elder abuse reports and
investigations, except the identity of persons who have made reports,
which shall not be disclosed.
(D) State summary criminal history information, criminal offender
record information, and local summary criminal history information,
as defined in Sections 11075, 11105, and 13300.
(E) Notwithstanding Section 11163.2, information pertaining to
reports by health practitioners of persons suffering from physical
injuries inflicted by means of a firearm or of persons suffering
physical injury where the injury is a result of assaultive or abusive
conduct.
(F) Information provided to probation officers in the course of
the performance of their duties, including, but not limited to, the
duty to prepare reports pursuant to Section 1203.10, as well as the
information on which these reports are based.
(G) Notwithstanding Section 10825 of the Welfare and Institutions
Code, records relating to in-home supportive services, unless
disclosure is prohibited by federal law.
(c) Written and oral information may be disclosed under this
section notwithstanding Sections 2263, 2918, 4982, and 6068 of the
Business and Professions Code, the lawyer-client privilege protected
by Article 3 (commencing with Section 950) of Chapter 4 of Division 8
of the Evidence Code, the physician-patient privilege protected by
Article 6 (commencing with Section 990) of Chapter 4 of Division 8 of
the Evidence Code, and the psychotherapist-patient privilege
protected by Article 7 (commencing with Section 1010) of Chapter 4 of
Division 8 of the Evidence Code.
SEC. 59. Section 11174.9 of the Penal Code is amended to read:
11174.9. Information gathered by the elder and adult with a
disability death review team and any recommendations made by the team
shall be used by the county to develop education, prevention, and if
necessary, prosecution strategies that will lead to improved
coordination of services for elders, adults with disabilities, and
their families.
SEC. 60. Section 13514.7 is added to the Penal Code, to read:
13514.7. (a) As used in this section and in Sections 13515,
13515.25, 13516, 13516.5, and 13517, "target date" means July 1,
2010.
(b) In setting the target date, it is the intent of the
Legislature that, by that date, the Commission on Peace Officer
Standards and Training, in cooperation with appropriate
subject-matter experts including those the commission selects from
among the subject-matter experts listed in Section 15592 of the
Welfare and Institutions Code, complete a comprehensive evaluation
and, as necessary, revision of standards and training concerning
crimes against individuals with disabilities, including, but not
limited to, those that constitute domestic violence, hate crimes,
crimes against children, crimes against homeless persons, and sexual
assault.
(c) It is the intent of the Legislature that the comprehensive
evaluation take account of consider
research and curricula, including, but not limited to:
(1) "Crime Victims With Disabilities Specialists Program: A Report
Prepared for the California Department of Mental Health," University
of California, Irvine, 2003.
(2) "Abuse and Neglect of Adults with Developmental Disabilities:
A Public Health Priority for California," Protection and Advocacy
Inc., State Council on Developmental Disabilities, University of
Southern California Affiliated Programs, and Tarjan Center for
Developmental Disabilities, University of California, Los Angeles,
2003.
(3) "Crimes Against Persons with Disabilities" in "Protecting
Californians from Hate Crimes: A Progress Report," Senate Office of
Research, 2004.
(4) "Project Guide: Communicating Effectively with
Victims/Witnesses with Severe Disabilities," USC/Children's Hospital.
(5) "First Responders: Responding to Abuse of Children with
Disabilities," The Arc of Riverside.
(d) It is not the intent of the Legislature to delay any work,
including, but not limited to, implementation of any requirement
of Section 13519.4, 13519.6, or of the act enacted
in the 2007-08 Regular Session that added this section, that the
commission is able to accomplish before it completes the
comprehensive evaluation.
SEC. 61. Section 13515 of the Penal Code is amended to read:
13515. (a) Every city police officer or deputy sheriff at a
supervisory level and below who is assigned field or investigative
duties shall complete a training course on abuse, neglect, and other
crimes against elders and victims with disabilities
certified by the Commission on Peace Officer Standards and Training
within 18 months of assignment to field duties. Completion of the
course may be satisfied by telecourse, video training tape, or other
instruction. The training shall, at a minimum, include all of the
following subjects:
(1) Relevant laws, including, but not limited to, laws on abuse
and neglect of elders and adults with disabilities, domestic violence
involving elders and adults with disabilities, hate crimes against
adults with disabilities, and sexual assaults of elders and adults
with disabilities.
(2) Recognition of abuse and other crimes against elders and
adults with disabilities.
(3) Reporting requirements and procedures, including those
requirements as they relate to hate crimes.
(4) Neglect Criminal and civil neglect
of elders and adults with disabilities.
(5) Fraud of elders and adults with disabilities.
(6) Physical abuse of elders and adults with disabilities.
(7) Psychological abuse of elders and adults with disabilities.
(8) The role of the local adult and child protective services and
public guardian offices.
(b) The commission shall, in addition, develop training in
consultation with the subject matter appropri
ate subject-matter experts including those the commission
selects from among the subject-matter experts listed in
Section 15592 of the Welfare and Institutions Code, related to the
special problems of protecting elders as well as all individuals with
disabilities and apprehending and prosecuting those who commit
crimes against them. The training shall include the material required
by the model policy as provided in Section 13516.5. This training
shall be included in the course described in subdivision (a) for all
peace officers employed with state law enforcement agencies. It is
the intent of the Legislature in enacting the act of the 2007-08
Regular Session that amended this section to strongly encourage all
local law enforcement agencies to include this additional training
with the training required by subdivision (a).
(c) The course of training leading to the basic certificate issued
by the commission shall, on and after the target date in Section
13514.7, include adequate instruction in the procedures described in
subdivisions (a) and (b).
SEC. 62. Section 13515.25 of the Penal Code is amended to read:
13515.25. (a) The Commission on Peace Officer Standards and
Training shall establish and keep updated a continuing education
classroom training course relating to law enforcement interaction
with persons with mental disabilities. The training course shall be
developed by the commission in consultation with appropriate law
enforcement representatives and community, local, and state
organizations and agencies that have expertise in the area of mental
illness and developmental disability, and with appropriate consumer
and family advocate groups. In developing the course, the commission
shall also examine existing courses certified by the commission that
relate to persons with mental disabilities. The commission shall make
the course available to law enforcement agencies in California.
(b) The course described in subdivision (a) shall consist of
classroom instruction and shall utilize interactive training methods
to ensure that the training is as realistic as possible. The course
shall include, at a minimum, core instruction in all of the
following:
(1) The cause and nature of mental illnesses and developmental
disabilities.
(2) How to identify indicators of mental disability and how to
respond appropriately in a variety of common situations.
(3) Conflict resolution and de-escalation techniques for
potentially dangerous situations involving persons with mental
disabilities.
(4) Appropriate language usage when interacting with persons with
mental disabilities.
(5) Alternatives to lethal force when interacting with potentially
dangerous persons with mental disabilities.
(6) Community and state resources available to serve persons with
mental disabilities and how these resources can be best utilized by
law enforcement to benefit the community of persons with mental
disabilities.
(7) The fact that a crime committed in whole or in part because of
an actual or perceived disability of the victim is a hate crime
punishable under Title 11.6 (commencing with Section 422.55) of Part
1.
(c) The commission shall update the course by the target date in
Section 13514.7 to comply with the requirements of the act enacted in
the 2007-08 Regular Session that amended this section and to
incorporate any successful elements of the Crisis Intervention
Training program identified in the commission's 2004 report, "A
Report to the Legislature: The Status of Peace Officer Training on
Mental Illness and Developmental Disabilities." In updating the
course, the commission shall consult with appropriate
subject-matter experts including those named
the commission selects from among those listed in Section 15592
of the Welfare and Institutions Code.
(d) Law enforcement agencies may include the course created in
this section, and any other course certified by the commission
relating to persons with mental disabilities, as part of their
advanced officer training program, and it is the intent of the
Legislature in enacting the act in the 2007-08 Regular Session that
amended this section to strongly encourage
each local law enforcement agency to do so.
SEC. 63. Section 13516 of the Penal Code is amended to read:
13516. (a) The commission shall prepare guidelines establishing
standard procedures which may be followed by police agencies in the
investigation of sexual assault, abuse, and exploitation cases,
specifically including, but not limited to, those cases where the
victim is a child or a person with a disability, as well as police
response to, and treatment of, victims of these crimes.
(b) The course of training leading to the basic certificate issued
by the commission shall, on and after the target date in Section
13514.7, include adequate instruction in the procedures described in
subdivision (a). No reimbursement shall be made to local agencies
based on attendance on or after that date at any course which does
not comply with the requirements of this subdivision.
(c) The commission shall prepare and implement a course for the
training of specialists in the investigation of sexual assault,
sexual abuse, and sexual exploitation cases, including, but not
limited to, cases where the victims are children or individuals with
disabilities. Officers assigned to investigation duties which include
the handling of cases involving the sexual exploitation or sexual
abuse of children, shall successfully complete that training within
six months of the date the assignment was made. The Legislature
strongly encourages all local law enforcement agencies to require
officers assigned to investigation duties which include the handling
of cases with victims who are persons with disabilities to
successfully complete the training within six months of the date of
the assignment.
(d) It is the intent of the Legislature in the enactment of this
section to encourage the establishment or designation of sex crime
investigation units in law enforcement agencies throughout the state,
which units shall include, but not be limited to, investigating
crimes involving the sexual exploitation and sexual abuse of children
and individuals with disabilities, unless those responsibilities are
assigned to a separate unit that is responsible for investigating
crimes against individuals with disabilities.
(e) It is the further intent of the Legislature in the enactment
of this section to encourage the establishment of investigation
guidelines that take into consideration the sensitive nature of the
sexual exploitation and sexual abuse of children with respect to both
the accused and the alleged victim.
(f) The commission shall consult with the subject-matter experts
listed in Section 15592 of the Welfare and Institutions Code when
revising the guidelines and courses of training described in this
section to comply with the requirements of the act enacted in the
2007-08 Regular Session that amended this section.
SEC. 64. Section 13516.5 is added to the Penal Code, to read:
13516.5. The commission, in consultation with the subject-matter
experts listed in Section 15592 of the Welfare and Institutions Code,
shall prepare each of the following by the target date in Section
13514.7:
(a) (1) A model policy on the prevention of, response to, and
investigation of crimes against victims with disabilities, which
shall include, but not be limited to guidance on each of the
following program components:
(A) Creation or designation of an investigation and assistance
unit, and advanced officer training for the officers assigned to that
unit and other units that investigate categories of crime that
include significant numbers of crimes against victims with
disabilities, pursuant to the intent of subparagraphs (A) and (B) of
paragraph (1) of subdivision (b) of Section 15593 of the Welfare and
Institutions Code.
(B) Initial response to calls concerning crimes against
individuals with disabilities, including protecting victims and
witnesses with disabilities from crime and retaliation and meeting
the medical, legal, and communications needs of victims and witnesses
with the full range of disabilities.
(C) Multidisciplinary teamwork both in response to crimes and
before they occur, including coordination within the law enforcement
agency and with adult and child protective services, prosecution
agencies, and local disability service and advocacy organizations.
(D) Outreach to persons with disabilities, their families, and
their caregivers to teach risk reduction techniques, encourage
victims and witnesses to recognize and report crimes to law
enforcement, and seek feedback to sensitize officers to the problem
of crimes against victims with disabilities and to determine and help
meet the special needs of potential and actual crime victims with
disabilities.
(E) Finding and utilizing trained advocates for victims and
witnesses with disabilities.
(F) Skills and attitudes needed to interview victims and witnesses
with the full range of disabilities, including gaining their
cooperation by avoiding negative stereotypes such as the bias that
witnesses with disabilities lack credibility, and recognizing and
overcoming the effects on the victims and witnesses of any past
negative interactions with law enforcement.
(G) Establishing probable cause in these cases, including
crediting statements by victims and witnesses with disabilities.
(H) Recognizing and reporting disability-bias hate crimes,
including those motivated by biases such as hostility to persons who
arouse guilt, a perception that persons with disabilities are
inferior or deserving of victimization, fear of or revulsion to
persons whose visible traits are disturbing to others, belief that
persons with certain disabilities are weak and therefore easy
targets, and resentment of those who need and increasingly demand
alternative physical and social accommodations.
(I) A requirement that officers who took the course required by
Section 13515 before the commission updated that course to comply
with the requirements of the bill that enacts this section in the
2007-08 Regular Session of the Legislature, and officers who never
took that course, view the updated telecourse required by subdivision
(b) within six months of the time the law enforcement agency adopts
the model policy.
(J) A requirement
that the local law enforcement agency act as the primary
investigatory agency for crimes against persons with disabilities in
treatment or care facilities within the agency's jurisdiction,
including, but not limited to, facilities within the State Department
of Developmental Services. policy, except for
officers who have previously viewed the 2002 version of the
telecourse.
(J) The importance of enforcing and complying with Section 11166
and Section 15630 of the Welfare and Institutions Code, concerning
mandatory reporting.
(2) By six months after the date on which the commission adopts
the model policy, each state law enforcement agency, including the
Bureau of Medi-Cal Fraud and Patient Abuse of the Department of
Justice and the Office of Protective Services of the Department of
Developmental Services, shall adopt a policy consistent with the
model policy. Local law enforcement agencies may adopt policies
consistent with the model policy, and the Legislature strongly
encourages each local law enforcement agency, including each
child and adult protective services agency, agency
to do so.
(b) (1) An update of the telecourse "Crime
Victims with Disabilities." The updated telecourse shall reflect
changes in law and in other commission standards and training made
since the commission produced the telecourse in 2002, and stress the
importance and urgency that the law now places on preventing and
responding to these crimes. crimes in order
to provide equal protection to persons with disabilities.
(2) Every state law enforcement agency shall provide the updated
telecourse to its officers as required by subparagraph (I) of
paragraph (1) of subdivision (a), except that a state law enforcement
agency may provide, but is not required to provide, the updated
telecourse to an officer who viewed the telecourse entitled "Law
Enforcement Response to Homelessness Update" which was required by
paragraph (1) of subdivision (b) of Section 13519.64 before that
provision was amended by the act that enacted this section in the
2007-08 Regular Session of the Legislature.
(c) One or more models of memoranda of understanding that law
enforcement agencies, child and adult protective services agencies,
long-term care ombudsman programs, local agencies serving crime
victims with disabilities, the protection and advocacy agency that
the Governor designates pursuant to Section 4900 of the Welfare and
Institutions Code, and any other that appropriate agencies may adopt.
SEC. 65. Section 13517 of the Penal Code is amended to read:
13517. (a) The commission shall prepare guidelines establishing
standard procedures which may be followed by police agencies in the
detection, investigation, and response to cases in which a minor,
including, but not limited to, a minor with a disability, is a victim
of an act of abuse or neglect or another crime. The guidelines shall
include procedures for determining whether or not a child should be
taken into protective custody. The guidelines shall also include
procedures for minimizing the number of times a child is interviewed
by law enforcement personnel.
(b) The course of training leading to the basic certificate issued
by the commission shall, not later than the target date in Section
13514.7, include adequate instruction in the procedures described in
subdivision (a).
(c) The commission shall prepare and implement an optional course
of training of specialists in the investigation of cases in which a
minor, and, by the target date in Section 13514.7, a minor with a
disability, is a victim of an act of abuse or neglect or another
crime.
(d) The commission shall consult with the State Office of Child
Abuse Prevention and other subject-matter experts listed in Section
15592 of the Welfare and Institutions Code in developing the
guidelines and optional course of training.
SEC. 66. Section 13519.64 of the Penal Code is amended to read:
13519.64. (a) The Legislature finds and declares that research,
including "Special Report to the Legislature on Senate Resolution 18:
Crimes Committed Against Homeless Persons" by the Department of
Justice (2002), "Crimes Against Homeless Persons" in "Protecting
Californians from Hate Crimes" by the Senate Office of Research
(2004), and "Hate, Violence, and Death on Main Street USA: A Report
on Hate Crimes and Violence Against People Experiencing Homelessness,
2006" by the National Coalition for the Homeless demonstrate that
California has had serious and unaddressed problems of crime against
homeless persons, including homeless persons with disabilities.
(b) (1) By July 1, 2005, the Commission on Peace Officer Standards
and Training, using available funding, shall develop a two-hour
telecourse, "Law Enforcement Response to Homelessness Update," to be
made available to all law enforcement agencies in California on
crimes against homeless persons and on how to deal effectively and
humanely with homeless persons, including homeless persons with
disabilities. The telecourse shall include information on
multimission criminal extremism, as defined in Section 13519.6. In
developing the telecourse, the commission shall consult
subject-matter experts including, but not limited to, homeless and
formerly homeless persons in California, service providers and
advocates for homeless persons in California, experts on the
disabilities that homeless persons commonly suffer, the California
Council of Churches, the National Coalition for the Homeless, the
Senate Office of Research, and the Criminal Justice Statistics Center
of the Department of Justice.
(2) Every state law enforcement agency, and every
local law enforcement agency to the extent that this
requirement does not create a state-mandated local program cost,
shall provide the telecourse "Law Enforcement Response to
Homelessness Update" developed by the commission pursuant to
paragraph (1), to its peace officers.
(c) (1) By July 1, 2009, the commission shall develop a model
policy on crimes against homeless persons and on how to deal
effectively and humanely with homeless persons, including homeless
persons with disabilities, incorporating the recommendation of the
Department of Justice ''Special Report to the Legislature on Senate
Resolution 18: Crimes Committed Against Homeless Persons'' and the
commission telecourse "Law Enforcement Response to Homelessness
Update" developed pursuant to paragraph (1) of subdivision (b). In
developing the model policy, the commission shall consult
subject-matter experts including, but not limited to, homeless and
formerly homeless persons in California, service providers and
advocates for homeless persons in California, experts on the
disabilities that homeless persons commonly suffer, the
subject-matter experts including law enforcement agencies consulted
in developing the telecourse, the California Council of Churches, the
National Coalition for the Homeless, the Department of Justice,
Housing California, the Los Angeles Coalition to End Hunger and
Homelessness, and the Sacramento Housing Alliance.
(2) Each law enforcement agency may adopt a policy consistent with
the model policy that the commission develops, and it is the intent
of the Legislature in enacting the act in the 2007-08 Regular Session
that amended this section to strongly encourage each local law
enforcement agency to do so.
SEC. 66.1. Section 13823.4 of the Penal Code is amended to read:
13823.4. (a) The Legislature finds the problem of family violence
to be of serious and increasing magnitude. The Legislature also
finds that acts of family violence often result in other crimes and
social problems.
(b) There is in the agency or agencies designated by the Director
of Finance pursuant to Section 13820, a Family Violence Prevention
Program. This program shall provide financial and technical
assistance to local domestic and family violence centers in
implementing family violence prevention programs.
The goals and functions of the program shall include all of the
following:
(1) Promotion of community involvement through public education
geared specifically toward reaching and educating the friends and
neighbors of members of violent families.
(2) Development and dissemination of model protocols for the
training of criminal justice system personnel in domestic violence
intervention and prevention.
(3) Increasing citizen involvement in family violence prevention.
(4) Identification and testing of family violence prevention
models.
(5) Replication of successful models, as appropriate, through the
state.
(6) Identification and testing of domestic violence model
protocols and intervention systems in major service delivery
institutions.
(7) Development of informational materials and seminars to enable
emulation or adaptation of the models by other communities.
(8) Provision of domestic violence prevention education and skills
to students in schools.
(c) The executive director shall allocate funds to local centers
meeting the criteria for funding that shall be established by the
agency or agencies designated by the Director of Finance pursuant to
Section 13820 in consultation with practitioners and experts in the
field of family violence prevention. All centers receiving funds
pursuant to this section shall have had an ongoing recognized
program, supported by either public or private funds, dealing with an
aspect of family violence, for at least two years prior to the date
specified for submission of applications for funding pursuant to this
section. All centers funded pursuant to this section shall utilize
volunteers to the greatest extent possible.
The centers may seek, receive, and make use of any funds which may
be available from all public and private sources to augment any
state funds received pursuant to this section. Sixty percent of the
state funds received pursuant to this section shall be used to
develop and implement model program protocols and materials. Forty
percent of the state funds received pursuant to this section shall be
allocated to programs to disseminate model program protocols and
materials. Dissemination shall include training for domestic violence
agencies in California. Each of the programs funded under this
section shall focus on no more than two targeted areas. These
targeted model areas shall be determined by the agency or agencies
designated by the Director of Finance pursuant to Section 13820 in
consultation with practitioners and experts in the field of domestic
violence, using the domestic violence model priorities survey of the
California Alliance Against Domestic Violence.
Centers receiving funding shall provide matching funds of at least
10 percent of the funds received pursuant to this section.
(d) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall develop and disseminate throughout
the state information and materials concerning family violence
prevention, including, but not limited to, a procedures manual on
prevention models. The agency or agencies designated by the Director
of Finance pursuant to Section 13820 shall also establish a resource
center for the collection, retention, and distribution of educational
materials related to family violence and its prevention.
(e) All of the activities of the Family Violence Prevention
Program and of the local centers funded by the executive director
shall include information on family violence against victims with
disabilities.
SEC. 66.2. Section 13823.5 of the Penal Code is amended to read:
13823.5. (a) The agency or agencies designated by the Director of
Finance pursuant to Section 13820, with the assistance of the
advisory committee established pursuant to Section 13836, shall
establish a protocol for the examination and treatment of victims of
sexual assault and attempted sexual assault, including child
molestation and sexual assault of victims with disabilities, and the
collection and preservation of evidence therefrom. The protocol shall
contain recommended methods for meeting the standards specified in
Section 13823.11.
(b) In addition to the protocol, the agency or agencies designated
by the Director of Finance pursuant to Section 13820 shall develop
informational guidelines, containing general reference information on
evidence collection, examination of victims and psychological and
medical treatment for victims of sexual assault and attempted sexual
assault, including child molestation and sexual assault of victims
with disabilities.
In developing the protocol and the informational guidelines, the
agency or agencies designated by the Director of Finance pursuant to
Section 13820 and the advisory committee shall seek the assistance
and guidance of organizations assisting victims of sexual assault;
qualified health care professionals, criminalists, and administrators
who are familiar with emergency room procedures; victims of sexual
assault; and law enforcement officials.
(c) The agency or agencies designated by the Director of Finance
pursuant to Section 13820, in cooperation with the State Department
of Health Services Public Health and
the Department of Justice, shall adopt a standard and a complete form
or forms for the recording of medical and physical evidence data
disclosed by a victim of sexual assault or attempted sexual assault,
including child molestation and sexual assault of victims with
disabilities.
Each qualified health care professional who conducts an
examination for evidence of a sexual assault or an attempted sexual
assault, including child molestation and sexual assault of victims
with disabilities, shall use the standard form adopted pursuant to
this section, and shall make those observations and perform those
tests as may be required for recording of the data required by the
form. The forms shall be subject to the same principles of
confidentiality applicable to other medical records.
The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall make copies of the standard form or
forms available to every public or private general acute care
hospital, as requested.
The standard form shall be used to satisfy the reporting
requirements specified in Sections 11160 and 11161 in cases of sexual
assault, and may be used in lieu of the form specified in Section
11168 for reports of child abuse.
(d) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall distribute copies of the protocol and
the informational guidelines to every general acute care hospital,
law enforcement agency, and prosecutor's office in the state.
(e) As used in this chapter, "qualified health care professional"
means a physician and surgeon currently licensed pursuant to Chapter
5 (commencing with Section 2000) of Division 2 of the Business and
Professions Code, or a nurse currently licensed pursuant to Chapter 6
(commencing with Section 2700) of Division 2 of the Business and
Professions Code and working in consultation with a physician and
surgeon who conducts examinations or provides treatment as described
in Section 13823.9 in a general acute care hospital or in a physician
and surgeon's office.
SEC. 66.3. Section 13823.7 of the Penal Code is amended to read:
13823.7. The protocol adopted pursuant to Section 13823.5 for the
examination and treatment of victims of sexual assault or attempted
sexual assault, including child molestation and sexual assault of
victims with disabilities, and the collection and preservation of
evidence therefrom shall include provisions for all of the following:
(a) Notification of injuries and a report of suspected child
sexual abuse to law enforcement authorities.
(b) Obtaining consent for the examination, for the treatment of
injuries, for the collection of evidence, and for the photographing
of injuries.
(c) Taking a patient history of sexual assault and other relevant
medical history.
(d) Performance of the physical examination for evidence of sexual
assault.
(e) Collection of physical evidence of assault.
(f) Collection of other medical specimens.
(g) Procedures for the preservation and disposition of physical
evidence.
SEC. 66.4. Section 13823.9 of the Penal Code is amended to read:
13823.9. (a) Every public or private general acute care hospital
that examines a victim of sexual assault or attempted sexual assault,
including child molestation and sexual assault of victims with
disabilities, shall comply with the standards specified in Section
13823.11 and the protocol and guidelines adopted pursuant to Section
13823.5.
(b) Each county with a population of more than 100,000 shall
arrange that professional personnel trained in the examination of
victims of sexual assault, including child molestation and sexual
assault of victims with disabilities, shall be present or on call
either in the county hospital which provides emergency medical
services or in any general acute care hospital which has contracted
with the county to provide emergency medical services. In counties
with a population of 1,000,000 or more, the presence of these
professional personnel shall be arranged in at least one general
acute care hospital for each 1,000,000 persons in the county.
(c) Each county shall designate at least one general acute care
hospital to perform examinations on victims of sexual assault,
including child molestation and sexual assault of victims with
disabilities.
(d) (1) The protocol published by the agency or agencies
designated by the Director of Finance pursuant to Section 13820 shall
be used as a guide for the procedures to be used by every public or
private general acute care hospital in the state for the examination
and treatment of victims of sexual assault and attempted sexual
assault, including child molestation and sexual assault of victims
with disabilities, and the collection and preservation of evidence
therefrom.
(2) The informational guide developed by the agency or agencies
designated by the Director of Finance pursuant to Section 13820 shall
be consulted where indicated in the protocol, as well as to gain
knowledge about all aspects of examination and treatment of victims
of sexual assault and child molestation.
SEC. 66.5. Section 13823.13 of the Penal Code is amended to read:
13823.13. (a) The agency or agencies designated by the Director
of Finance pursuant to Section 13820 shall develop a course of
training for qualified health care professionals relating to the
examination and treatment of victims of sexual assault, including
child victims and victims with disabilities. In developing the
curriculum for the course, the agency or agencies designated by the
Director of Finance pursuant to Section 13820 shall consult with
health care professionals and appropriate law enforcement agencies.
The agency or agencies designated by the Director of Finance pursuant
to Section 13820 shall also obtain recommendations from the same
health care professionals and appropriate law enforcement agencies on
the best means to disseminate the course of training on a statewide
basis.
(b) The training course developed pursuant to subdivision (a)
shall be designed to train qualified health care professionals to do
all of the following:
(1) Perform a health assessment of victims of sexual assault in
accordance with any applicable minimum standards set forth in Section
13823.11.
(2) Collect and document physical and laboratory evidence in
accordance with any applicable minimum standards set forth in Section
13823.11.
(3) Provide information and referrals to victims of sexual assault
to enhance the continuity of care of victims.
(4) Present testimony in court.
(c) As used in this section, "qualified health care professional"
means a physician and surgeon currently licensed pursuant to Chapter
5 (commencing with Section 2000) of Division 2 of the Business and
Professions Code, or a nurse currently licensed pursuant to Chapter 6
(commencing with Section 2700) of Division 2 of the Business and
Professions Code who works in consultation with a physician and
surgeon or who conducts examinations described in Section 13823.9 in
a general acute care hospital or in the office of a physician
and surgeon.
(d) As used in this section, "appropriate law enforcement agencies"
may include, but shall not be limited to, the Attorney General of
the State of California, any district attorney, and any agency of the
State of California expressly authorized by statute to investigate
or prosecute law violators.
SEC. 66.6. Section 13823.15 of the Penal Code is amended to read:
13823.15. (a) The Legislature finds the problem of domestic
violence to be of serious and increasing magnitude. The Legislature
also finds that existing domestic violence services are underfunded
and that some areas of the state are unserved or underserved.
Therefore, it is the intent of the Legislature that a goal or purpose
of the Office of Emergency Services (OES) shall be to ensure that
all victims of domestic violence served by the OES Comprehensive
Statewide Domestic Violence Program, including victims with
disabilities, receive comprehensive, quality services.
(b) There is in the OES a Comprehensive Statewide Domestic
Violence Program. The goals of the program shall be to provide local
assistance to existing service providers, to maintain and expand
services based on a demonstrated need, and to establish a targeted or
directed program for the development and establishment of domestic
violence services in currently unserved and underserved areas. The
OES shall provide financial and technical assistance to local
domestic violence centers in implementing all of the following
services:
(1) Twenty-four-hour crisis hotlines.
(2) Counseling.
(3) Business centers.
(4) Emergency "safe" homes or shelters for victims and families.
(5) Emergency food and clothing.
(6) Emergency response to calls from law enforcement.
(7) Hospital emergency room protocol and assistance.
(8) Emergency transportation.
(9) Supportive peer counseling.
(10) Counseling for children.
(11) Court and social service advocacy.
(12) Legal assistance with temporary restraining orders, devices,
and custody disputes.
(13) Community resource and referral.
(14) Household establishment assistance.
Priority for financial and technical assistance shall be given to
emergency shelter programs and "safe" homes for victims of domestic
violence, including victims with disabilities, and their children.
(c) Except as provided in subdivision (f), the OES and the
advisory committee established pursuant to Section 13823.16 shall
collaboratively administer the Comprehensive Statewide Domestic
Violence Program, and shall allocate funds to local centers meeting
the criteria for funding. All organizations funded pursuant to this
section shall utilize volunteers to the greatest extent possible.
The centers may seek, receive, and make use of any funds which may
be available from all public and private sources to augment any
state funds received pursuant to this section.
Centers receiving funding shall provide cash or an in-kind match
of at least 10 percent of the funds received pursuant to this
section.
(d) The OES shall conduct statewide training workshops on domestic
violence for local centers, law enforcement, and other service
providers designed to enhance service programs. The workshops shall
be planned in conjunction with practitioners and experts in the field
of domestic violence prevention. The workshops shall include a
curriculum component on lesbian, gay, bisexual, and transgender
specific domestic abuse and a component on domestic violence against
victims with disabilities.
(e) The OES shall develop and disseminate throughout the state
information and materials concerning domestic violence. The OES shall
also establish a resource center for the collection, retention, and
distribution of educational materials related to domestic violence.
The OES may utilize and contract with existing domestic violence
technical assistance centers in this state in complying with the
requirements of this subdivision.
(f) The funding process for distributing grant awards to domestic
violence shelter service providers (DVSSPs) shall be administered by
the OES as follows:
(1) The OES shall establish each of the following:
(A) The process and standards for determining whether to grant,
renew, or deny funding to any DVSSP applying or reapplying for
funding under the terms of the program.
(B) For DVSSPs applying for grants under the request for proposal
process described in paragraph (2), a system for grading grant
applications in relation to the standards established pursuant to
subparagraph (A), and an appeal process for applications that are
denied. A description of this grading system and appeal process shall
be provided to all DVSSPs as part of the application required under
the RFP process.
(C) For DVSSPs reapplying for funding under the request for
application process described in paragraph (4), a system for grading
the performance of DVSSPs in relation to the standards established
pursuant to subparagraph (A), and an appeal process for decisions to
deny or reduce funding. A description of this grading system and
appeal process shall be provided to all DVSSPs receiving grants under
this program.
(2) Grants for shelters that were not funded in the previous cycle
shall be awarded as a result of a competitive request for proposal
(RFP) process. The RFP process shall comply with all applicable state
and federal statutes for domestic violence shelter funding, and to
the extent possible, the response to the RFP shall not exceed 25
narrative pages, excluding attachments.
(3) Grants shall be awarded to DVSSPs that propose to maintain
shelters or services previously granted funding pursuant to this
section, to expand existing services or create new services, or to
establish new domestic violence shelters in underserved or unserved
areas. Each grant shall be awarded for a three-year term.
(4) DVSSPs reapplying for grants shall not be subject to a
competitive grant process, but shall be subject to a request for
application (RFA) process. The RFA process shall consist in part of
an assessment of the past performance history of the DVSSP in
relation to the standards established pursuant to paragraph (1). The
RFA process shall comply with all applicable state and federal
statutes for domestic violence center funding, and to the extent
possible, the response to the RFA shall not exceed 10 narrative
pages, excluding attachments.
(5) Any DVSSP funded through this program in the previous grant
cycle, including any DVSSP funded by Chapter 707 of the Statutes of
2001, shall be funded upon reapplication, unless, pursuant to the
assessment required under the RFA process, its past performance
history fails to meet the standards established by the OES pursuant
to paragraph (1).
(6) The OES shall conduct a minimum of one site visit every three
years for each DVSSP funded pursuant to this subdivision. The purpose
of the site visit shall be to conduct a performance assessment of,
and provide subsequent technical assistance for, each shelter
visited. The performance assessment shall include, but need not be
limited to, a review of all of the following:
(A) Progress in meeting program goals and objectives.
(B) Agency organization and facilities.
(C) Personnel policies, files, and training.
(D) Recordkeeping, budgeting, and expenditures.
(E) Documentation, data collection, and client confidentiality.
(7) After each site visit conducted pursuant to paragraph (6), the
OES shall provide a written report to the DVSSP summarizing the
performance of the DVSSP, any deficiencies noted, any corrective
action needed, and a deadline for corrective action to be completed.
The OES shall also develop a corrective action plan for verifying the
completion of any corrective action required. The OES shall submit
its written report to the DVSSP no more than 60 days after the site
visit. No grant under the RFA process shall be denied if the DVSSP
has not received a site visit during the previous three years, unless
the OES is aware of criminal violations relative to the
administration of grant funding.
(8) If an agency receives funding from both the Comprehensive
Statewide Domestic Violence Program in the Office of Emergency
Services and the Maternal and Child Health Branch of the State
Department of Public Health during any grant cycle, the Comprehensive
Statewide Domestic Violence Program and the Maternal and Child
Health Branch shall, to the extent feasible, coordinate agency site
visits and share performance assessment data with the goal of
improving efficiency, eliminating duplication, and reducing
administrative costs.
(9) DVSSPs receiving written reports of deficiencies or orders for
corrective action after a site visit shall be given no less than six
months' time to take corrective action before the deficiencies or
failure to correct may be considered in the next RFA process.
However, the OES shall have the discretion to reduce the time to take
corrective action in cases where the deficiencies present a
significant health or safety risk or when other severe circumstances
are found to exist. If corrective action is deemed necessary, and a
DVSSP fails to comply, or if other deficiencies exist that, in the
judgment of the OES, cannot be corrected, the OES shall determine,
using its grading system, whether continued funding for the DVSSP
should be reduced or denied altogether. If a DVSSP has been
determined to be deficient, the OES may, at any point during the
DVSSP's funding cycle following the expiration of the period for
corrective action, deny or reduce any further funding.
(10) If a DVSSP applies or reapplies for funding pursuant to this
section and that funding is denied or reduced, the decision to deny
or reduce funding shall be provided in writing to the DVSSP, along
with a written explanation of the reasons for the reduction or denial
made in accordance with the grading system for the RFP or RFA
process. Except as otherwise provided, any appeal of the decision to
deny or reduce funding shall be made in accordance with the appeal
process established by the OES. The appeal process shall allow a
DVSSP a minimum of 30 days to appeal after a decision to deny or
reduce funding. All pending appeals shall be resolved before final
funding decisions are reached.
(11) It is the intent of the Legislature that priority for
additional funds that become available shall be given to currently
funded, new, or previously unfunded DVSSPs for expansion of services.
However, the OES may determine when expansion is needed to
accommodate underserved or unserved areas. If supplemental funding is
unavailable, the OES shall have the authority to lower the base
level of grants to all currently funded DVSSPs in order to provide
funding for currently funded, new, or previously unfunded DVSSPs that
will provide services in underserved or unserved areas. However, to
the extent reasonable, funding reductions shall be reduced
proportionately among all currently funded DVSSPs. After the amount
of funding reductions has been determined, DVSSPs that are currently
funded and those applying for funding shall be notified of changes in
the available level of funding prior to the next application
process. Funding reductions made under this paragraph shall not be
subject to appeal.
(12) Notwithstanding any other provision of this section, OES may
reduce funding to a DVSSP funded pursuant to this section if federal
funding support is reduced. Funding reductions as a result of a
reduction in federal funding shall not be subject to appeal.
(13) Nothing in this section shall be construed to supersede any
function or duty required by federal acts, rules, regulations, or
guidelines for the distribution of federal grants.
(14) As a condition of receiving funding pursuant to this section,
DVSSPs shall do all of the following:
(A) Provide matching funds or in-kind contributions equivalent to
not less than 10 percent of the grant they would receive. The
matching funds or in-kind contributions may come from other
governmental or private sources.
(B) Ensure that appropriate staff and volunteers having client
contact meet the definition of "domestic violence counselor" as
specified in subdivision (a) of Section 1037.1 of the Evidence Code.
The minimum training specified in paragraph (2) of subdivision (a) of
Section 1037.1 of the Evidence Code shall be provided to those staff
and volunteers who do not meet the requirements of paragraph (1) of
subdivision (a) of Section 1037.1 of the Evidence Code.
(15) The following definitions shall apply for purposes of this
subdivision:
(A) "Domestic violence" means the infliction or threat of physical
harm against past or present adult or adolescent female intimate
partners, including those with disabilities, including physical,
sexual, and psychological abuse against the woman, and is a part of a
pattern of assaultive, coercive, and controlling behaviors directed
at achieving compliance from or control over that woman.
(B) "Domestic violence shelter service provider" or "DVSSP" means
a victim services provider that operates an established system of
services providing safe and confidential emergency housing on a
24-hour basis for victims of domestic violence and their children,
including, but not limited to, hotel or motel arrangements, haven,
and safe houses.
(C) "Emergency shelter" means a confidential or safe location that
provides emergency housing on a 24-hour basis for victims of
domestic violence, including victims of domestic violence
with disabilities, and their children.
(g) The OES may hire the support staff and utilize all resources
necessary to carry out the purposes of this section. The OES shall
not utilize more than 10 percent of any funds appropriated for the
purpose of the program established by this section for the
administration of that program.
SEC. 66.7. Section 13823.16 of the Penal Code is amended to read:
13823.16. (a) The Comprehensive Statewide Domestic Violence
Program established pursuant to Section 13823.15 shall be
collaboratively administered by the Office of Emergency Services
(OES) and an advisory council. The membership of the OES Domestic
Violence Advisory Council shall consist of experts in the provision
of either direct or intervention services to battered women and their
children, within the scope and intention of the OES Domestic
Violence Assistance Program.
(b) The membership of the council shall consist of domestic
violence victims' advocates, battered women service providers, at
least one representative of service providers serving the lesbian,
gay, bisexual, and transgender community in connection with domestic
violence, and representatives of women's organizations, law
enforcement, and other groups involved with domestic violence. At
least one-half of the council membership shall consist of domestic
violence victims' advocates or battered women service providers from
organizations such as the California Partnership to End Domestic
Violence. It is the intent of the Legislature that the council
membership reflect the ethnic, racial, cultural, and geographic
diversity of the state, including people with disabilities. The
council shall be composed of no more than 13 voting members and two
nonvoting ex officio members who shall be appointed, as follows:
(1) Seven voting members shall be appointed by the Governor.
(2) Three voting members shall be appointed by the Speaker of the
Assembly.
(3) Three voting members shall be appointed by the Senate
Committee on Rules.
(4) Two nonvoting ex officio members shall be Members of the
Legislature, one appointed by the Speaker of the Assembly and one
appointed by the Senate Committee on Rules. Any Member of the
Legislature appointed to the council shall meet with the council and
participate in its activities to the extent that participation is not
incompatible with his or her position as a Member of the
Legislature.
(c) The OES shall collaborate closely with the council in
developing funding priorities, framing the request for proposals, and
soliciting proposals.
(d) This section shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
SEC. 66.8. Section 13823.93 of the Penal Code is amended to read:
13823.93. (a) For purposes of this section, the following
definitions apply:
(1) "Medical personnel" includes physicians, nurse practitioners,
physician assistants, nurses, and other health care providers, as
appropriate.
(2) To "perform a medical evidentiary examination" means to
evaluate, collect, preserve, and document evidence, interpret
findings, and document examination results.
(b) To ensure the delivery of standardized curriculum, essential
for consistent examination procedures throughout the state, one
hospital-based training center shall be established through a
competitive bidding process, to train medical personnel on how to
perform medical evidentiary examinations for victims of child abuse
or neglect, sexual assault, domestic violence, elder abuse, and abuse
or assault perpetrated against persons with disabilities. The center
also shall provide training for investigative and court personnel
involved in dependency and criminal proceedings, on how to interpret
the findings of medical evidentiary examinations.
The training provided by the training center shall be made
available to medical personnel, law enforcement, and the courts
throughout the state.
(c) The training center shall meet all of the following criteria:
(1) Recognized expertise and experience in providing medical
evidentiary examinations for victims of child abuse or neglect,
sexual assault, domestic violence, elder abuse, and abuse or assault
perpetrated against persons with disabilities.
(2) Recognized expertise and experience implementing the protocol
established pursuant to Section 13823.5.
(3) History of providing training, including, but not limited to,
the clinical supervision of trainees and the evaluation of clinical
competency.
(4) Recognized expertise and experience in the use of advanced
medical technology and training in the evaluation of victims of child
abuse or neglect, sexual assault, domestic violence, elder abuse,
and abuse or assault perpetrated against persons with disabilities.
(5) Significant history in working with professionals in the field
of criminalistics.
(6) Established relationships with local crime laboratories,
clinical laboratories, law enforcement agencies, district attorneys'
offices, child protective services, victim advocacy programs, and
federal investigative agencies.
(7) The capacity for developing a telecommunication network
between primary, secondary, and tertiary medical providers.
(8) History of leadership in working collaboratively with medical
forensic experts, criminal justice experts, investigative social
worker experts, state criminal justice, social services, health and
mental health agencies, and statewide professional associations
representing the various disciplines, especially those specified in
paragraph (6) of subdivision (d).
(9) History of leadership in working collaboratively with state
and local victim advocacy organizations, especially those addressing
sexual assault and domestic violence.
(10) History and experience in the development and delivery of
standardized curriculum for forensic medical experts, criminal
justice professionals, and investigative social workers.
(11) History of research, particularly involving databases, in the
area of child physical and sexual abuse, sexual assault, elder
abuse, or domestic violence.
(d) The training center shall do all of the following:
(1) Develop and implement a standardized training program for
medical personnel that has been reviewed and approved by a
multidisciplinary peer review committee.
(2) Develop a telecommunication system network between the
training center and other areas of the state, including rural and
midsized counties. This service shall provide case consultation to
medical personnel, law enforcement, and the courts and provide
continuing medical education.
(3) Provide ongoing basic, advanced, and specialized training
programs.
(4) Develop guidelines for the reporting and management of child
physical abuse and neglect, domestic violence, abuse or assault of
persons with disabilities, and elder abuse.
(5) Develop guidelines for evaluating the results of training for
the medical personnel performing examinations.
(6) Provide standardized training for law enforcement officers,
district attorneys, public defenders, investigative social workers,
and judges on medical evidentiary examination procedures and the
interpretation of findings. This training shall be developed and
implemented in collaboration with the Commission on Peace Officer
Standards and Training, the California District Attorney's
Association, the California Peace Officers Association, the
California Police Chiefs Association, the California State Sheriffs
Association, the California Association of Crime Laboratory
Directors, the California Sexual Assault Investigators Association,
the California Alliance Against Domestic Violence, the Statewide
California Coalition for Battered Women, the Family Violence
Prevention Fund, child victim advocacy organizations, subject matter
experts listed in Section 15592 of the Welfare and Institutions Code,
the California Welfare Directors Association, the California
Coalition Against Sexual Assault, the Department of Justice, the
agency or agencies designated by the Director of Finance pursuant to
Section 13820, the Child Welfare Training Program, and the University
of California extension programs.
(7) Promote an interdisciplinary approach in the assessment and
management of child abuse and neglect, sexual assault, elder abuse,
domestic violence, and abuse or assault against persons with
disabilities.
(8) Provide training in the dynamics of victimization, including,
but not limited to, rape trauma syndrome, intimate partner battering
and its effects, the effects of child abuse and neglect, and the
various aspects of elder abuse and abuse or assault of
persons with disabilities crimes against elders and
persons with disabilities, including, but not limited to, abuse and
neglect . This training shall be provided by individuals who
are recognized as experts within their respective disciplines.
(e) Nothing in this section shall be construed to change the scope
of practice for any health care provider, as defined in other
provisions of law.
SEC. 67. Section 13835.2 of the Penal Code is amended to read:
13835.2. (a) Funds appropriated from the Victim-Witness
Assistance Fund shall be made available through the agency or
agencies designated by the Director of Finance pursuant to Section
13820 to any public or private nonprofit agency for the assistance of
victims and witnesses that meets all of the following requirements:
(1) It provides comprehensive services to victims and witnesses of
all types of crime and to all victims, including victims with
disabilities. It is the intent of the Legislature to make funds
available only to programs that do not restrict services to victims
and witnesses of a particular type of crime, and do not restrict
services to victims of crime in which there is a suspect in the case.
(2) It is recognized by the board of supervisors as the major
provider of comprehensive services to victims and witnesses in the
county.
(3) It is selected by the board of supervisors as the agency to
receive funds pursuant to this article.
(4) It assists victims of crime in the preparation, verification,
and presentation of their claims to the California Victim
Compensation and Government Claims Board for indemnification pursuant
to Article 1 (commencing with Section 13959) of Part 4 of Division 3
of Title 2 of the Government Code.
(5) It cooperates with the California Victim Compensation and
Government Claims Board in verifying the data required by Article 1
(commencing with Section 13959) of Part 4 of Division 3 of Title 2 of
the Government Code.
(b) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall consider the following factors,
together with any other circumstances it deems appropriate, in
awarding funds to public or private nonprofit agencies designated as
victim and witness assistance centers:
(1) The capability of the agency to provide comprehensive services
as defined in this article.
(2) The stated goals and objectives of the center.
(3) The number of people to be served and the needs of the
community.
(4) Evidence of community support.
(5) The organizational structure of the agency that will operate
the center.
(6) The capability of the agency to provide confidentiality of
records.
(c) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall conduct an evaluation of the
activities and performance of the centers established pursuant to
Chapter 1256 of the Statutes of 1977 to determine their ability to
comply with the intent of this article, and shall report the findings
thereon to the Legislature by January 1, 1985.
SEC. 68. Section 13835.4 of the Penal Code is amended to read:
13835.4. In order to insure the effective delivery of
comprehensive services to victims and witnesses, a center established
by an agency receiving funds pursuant to this article shall carry
out all of the following activities in connection with both primary
and optional services:
(a) Translation services for non-English speaking victims and
witnesses or the hearing-impaired.
(b) Follow-up contact to determine whether the client received the
necessary assistance.
(c) Field visits to a client's home, place of business, or other
location, whenever necessary to provide services.
(d) Service to victims and witnesses of all types of crime.
(e) Volunteer participation to encourage community involvement.
(f) Services for victims of crime who are elders or individuals
with disabilities, appropriate to their special needs.
SEC. 69. Section 13835.10 of the Penal Code is amended to read:
13835.10. (a) The Legislature finds and declares all of the
following:
(1) That the provision of quality services for victims of crime is
of high priority.
(2) That existing victim service programs do not have sufficient
financial resources to consistently recruit and employ fully trained
personnel.
(3) That
there is no consistency in the training provided to the various
agencies serving victims.
(4) That comprehensive training for victim service agencies is
geographically limited or unavailable.
(5) That there is currently no statewide comprehensive training
system in place for the state to insure that all service providers
receive adequate training to provide quality services to victims of
crime.
(6) It is the intention of the Legislature to establish a
statewide training program within the agency or agencies designated
by the Director of Finance pursuant to Section 13820 to provide
comprehensive standardized training to victim service providers.
(b) The agency or agencies designated by the Director of Finance
pursuant to Section 13820 shall establish a statewide
victim-assistance training program, the purpose of which is to
develop minimum training and selection standards, certify training
courses, and provide funding to enable local victim service providers
to acquire the required training. The program shall address the
special problems of assisting victims and witnesses with
disabilities.
(c) (1) For the purpose of raising the level of competence of
local victim service providers, the office shall adopt guidelines
establishing minimum standards of training for employees of
victim-witness and sexual assault programs funded by the office to
provide services to victims of crime. The agency or agencies shall
establish an advisory committee composed of recognized statewide
victim service organizations, representatives of local victim service
programs, subject-matter experts on crimes against individuals with
disabilities selected from the list in Section 15592 of the Welfare
and Institutions Code and others selected at the discretion of the
executive director to consult on the research and development of the
training, selection, and equivalency standards.
(2) Any local unit of government, community-based organization, or
any other public or private nonprofit entity funded by the agency or
agencies as a victim-witness or sexual assault program to provide
services to victims of crime shall adhere to the training and
selection standards established by the agency or agencies. The
standards for sexual assault victim service programs developed by the
advisory committee established pursuant to Section 13836 shall be
the standards for purposes of this section. With the exception of the
sexual assault standards, the agency or agencies shall conduct or
contract with an appropriate firm or entity for research on validated
standards pursuant to this section in consultation with the advisory
committee established pursuant to paragraph (1). The agency or
agencies may defer the adoption of the selection standards until the
necessary research is completed. Until the standards are adopted,
affected victim service programs may receive state funding from the
agency or agencies upon certification of their willingness to adhere
to the training standards adopted by the agency or agencies.
(3) Minimum training and selection standards may include, but
shall not be limited to, basic entry, continuation, supervisory,
management, specialized curricula, and confidentiality.
(4) Training and selection standards shall apply to all victim
service and management personnel of the victim-witness and sexual
assault agencies funded by the agency or agencies to provide services
to victims of crime. Exemptions from this requirement may be made by
the agency or agencies, except that the agency or agencies shall not
exempt standards concerning victims or witnesses with disabilities.
An agency which, despite good faith efforts, is unable to meet the
standards established pursuant to this section, may apply to the
agency or agencies for an exemption. For the purpose of exemptions,
the agency or agencies may establish procedures that allow for
partial adherence. The agency or agencies may develop equivalency
standards which recognize professional experience, education,
training, or a combination of the above, for personnel hired before
July 1, 1987.
(5) Nothing in this section shall prohibit an agency, funded by
the agency or agencies to provide services to victims of crime, from
establishing training and selection standards which exceed the
minimum standards established by the agency or agencies pursuant to
this section.
(d) For purposes of implementing this section, the agency or
agencies has all of the following powers:
(1) To approve or certify, or both, training courses selected by
the agency or agencies.
(2) To make those inquiries which may be necessary to determine
whether every local unit of government, community-based organization,
or any other public or private entity receiving state aid from the
agency or agencies as a victim-witness or sexual assault program for
the provision of services to victims of crime, is adhering to the
standards for training and selection established pursuant to this
section.
(3) To adopt those guidelines which are necessary to carry out the
purposes of this section.
(4) To develop or present, or both, training courses for victim
service providers, or to contract with coalitions, councils, or other
designated entities, to develop or present, or both, those training
courses.
(5) To perform other activities and studies necessary to carry out
the intent of this section.
(e) (1) The agency or agencies may utilize any funds that may
become available from the Victim-Witness Assistance Fund to fund the
cost of training staff of victim service agencies which are funded by
the agency or agencies from the fund. The agency or agencies may
utilize federal or other state funds that may become available to
fund the cost of training staff of victim service agencies which are
not eligible for funding from the Victim-Witness Assistance Fund.
(2) Peace officer personnel whose jurisdictions are eligible for
training subvention pursuant to Chapter 1 (commencing with Section
13500) of Title 4 of this part and correctional or probation
personnel whose jurisdictions are eligible for state aid pursuant to
Article 2 (commencing with Section 6035) of Chapter 5 of Title 7 of
Part 3 are not eligible to receive training reimbursements under this
section unless the person receiving the training is assigned to
provide victim services in accordance with a grant award agreement
with the agency or agencies and is attending training to meet the
established standards.
SEC. 70. Section 13836 of the Penal Code is amended to read:
13836. The agency or agencies designated by the Director of
Finance pursuant to Section 13820 shall establish an advisory
committee which shall develop a course of training for district
attorneys in the investigation and prosecution of sexual assault
cases, child sexual exploitation cases, and child sexual abuse cases
and shall approve grants awarded pursuant to Section 13837. The
courses shall include training in the unique emotional trauma
experienced by victims of these crimes and the special problems of
investigating and prosecuting these crimes when committed against
individuals with disabilities.
It is the intent of the Legislature in the enactment of this
chapter to encourage the establishment of sex crime prosecution
units, which shall include, but not be limited to, child sexual
exploitation and child sexual abuse cases, in district attorneys'
offices throughout the state.
SEC. 71. Section 13836.1 of the Penal Code is amended to read:
13836.1. The committee shall consist of 11 members. Five shall be
appointed by the executive director of the agency or agencies
designated by the Director of Finance pursuant to Section 13820, and
shall include three district attorneys or assistant or deputy
district attorneys, one representative of a city police department or
a sheriff or a representative of a sheriff's department, and one
public defender or assistant or deputy public defender of a county.
Six shall be public members appointed by the Commission on the Status
of Women, and shall include one representative of a rape crisis
center, and one medical professional experienced in dealing with
sexual assault trauma victims. The committee members shall represent
the points of view of diverse ethnic and language groups and
subject-matter experts on crimes against individuals with
disabilities listed in Section 15592 of the Welfare and Institutions
Code.
Members of the committee shall receive no compensation for their
services but shall be reimbursed for their expenses actually and
necessarily incurred by them in the performance of their duties.
Staff support for the committee shall be provided by the agency or
agencies designated by the Director of Finance pursuant to Section
13820.
SEC. 71.5. Section 13837 of the Penal
Code is amended to read:
13837. (a) The OES shall provide grants to proposed and existing
child sexual exploitation and child sexual abuse victim counseling
centers and prevention programs. Grant recipients shall provide
appropriate in-person counseling and referral services during normal
business hours, and maintain other standards or services which shall
be determined to be appropriate by the advisory committee established
pursuant to Section 13836 as grant conditions. The advisory
committee shall identify the criteria to be utilized in awarding the
grants provided by this chapter before any funds are allocated.
In order to be eligible for funding pursuant to this chapter, the
centers shall demonstrate an ability to receive and make use of any
funds available from governmental, voluntary, philanthropic, or other
sources which may be used to augment any state funds appropriated
for purposes of this chapter. Each center receiving funds pursuant to
this chapter shall make every attempt to qualify for any available
federal funding.
State funds provided to establish centers shall be utilized when
possible, as determined by the advisory committee, to expand the
program and shall not be expended to reduce fiscal support from other
public or private sources. The centers shall maintain quarterly and
final fiscal reports in a form to be prescribed by the administering
agency. In granting funds, the advisory committee shall give priority
to centers which are operated in close proximity to medical
treatment facilities.
(b) (1) It is the intent of the Legislature that a goal or purpose
of the OES shall be to ensure that all victims of sexual assault and
rape , including victims with disabilities, receive
comprehensive, quality services, and to decrease the incidence of
sexual assault through school and community education and prevention
programs.
(2) The OES and the advisory committee established pursuant to
Section 13836 shall collaboratively administer sexual assault/rape
crisis center victim services programs and provide grants to proposed
and existing sexual assault services programs (SASPs) operating
local rape victim centers and prevention programs. All SASPs shall
provide the services in subparagraphs (A) to (G), inclusive, and to
the extent federal funding is made available, shall also provide the
service described in subparagraph (H). The OES shall provide
financial and technical assistance to SASPs in implementing the
following services:
(A) Crisis intervention, 24 hours per day, seven days per week.
(B) Followup counseling services.
(C) In-person counseling, including group counseling.
(D) Accompaniment services.
(E) Advocacy services.
(F) Information and referrals to victims and the general public.
(G) Community education presentations.
(H) Rape prevention presentations and self-defense programs.
(3) The funding process for distributing grant awards to SASPs
shall be administered as follows:
(A) The OES and the advisory committee established pursuant to
Section 13836 shall collaboratively adopt each of the following:
(i) The process and standards for determining whether to grant,
renew, or deny funding to any SASP applying or reapplying for funding
under the terms of the program.
(ii) For SASPs applying for grants under the RFP process described
in subparagraph (B), a system for grading grant applications in
relation to the standards established pursuant to clause (i), and an
appeal process for applications that are denied. A description of
this grading system and appeal process shall be provided to all SASPs
as part of the application required under the RFP process.
(iii) For SASPs reapplying for funding under the RFA process
described in subparagraph (D), a system for grading the performance
of SASPs in relation to the standards established pursuant to clause
(i), and an appeal process for decisions to deny or reduce funding. A
description of this grading system and appeal process shall be
provided to all SASPs receiving grants under this program.
(B) Grants for centers that have previously not been funded or
were not funded in the previous cycle shall be awarded as a result of
a competitive request for proposal (RFP) process. The RFP process
shall comply with all applicable state and federal statutes for
sexual assault/rape crisis center funding, and to the extent
possible, the response to the RFP shall not exceed 25 narrative
pages, excluding attachments.
(C) Grants shall be awarded to SASPs that propose to maintain
services previously granted funding pursuant to this section, to
expand existing services or create new services, or to establish new
sexual assault/rape crisis centers in underserved or unserved areas.
Each grant shall be awarded for a three-year term.
(D) SASPs reapplying for grants shall not be subject to a
competitive bidding grant process, but shall be subject to a request
for application (RFA) process. The RFA process for a SASP reapplying
for grant funds shall consist in part of an assessment of the past
performance history of the SASP in relation to the standards
established pursuant to subparagraph (A). The RFA process shall
comply with all applicable state and federal statutes for sexual
assault/rape crisis center funding, and to the extent possible, the
response to the RFA shall not exceed 10 narrative pages, excluding
attachments.
(E) Any SASP funded through this program in the previous grant
cycle shall be funded upon reapplication, unless its past performance
history fails to meet the standards established pursuant to clause
(i) of subparagraph (A).
(F) The OES shall conduct a minimum of one site visit every three
years for each agency funded to provide sexual assault/rape crisis
centers. The purpose of the site visit shall be to conduct a
performance assessment of, and provide subsequent technical
assistance for, each center visited. The performance assessment shall
include, but need not be limited to, a review of all of the
following:
(i) Progress in meeting program goals and objectives.
(ii) Agency organization and facilities.
(iii) Personnel policies, files, and training.
(iv) Recordkeeping, budgeting, and expenditures.
(v) Documentation, data collection, and client confidentiality.
(G) After each site visit conducted pursuant to subparagraph (F),
the OES shall provide a written report to the SASP summarizing the
performance of the SASP, any deficiencies noted, any corrective
action needed, and a deadline for corrective action to be completed.
The OES shall also develop a corrective action plan for verifying the
completion of any corrective action required. The OES shall submit
its written report to the SASP no more than 60 days after the site
visit. No grant under the RFA process shall be denied if the SASP did
not receive a site visit during the previous three years, unless the
OES is aware of criminal violations relative to the administration
of grant funding.
(H) SASPs receiving written reports of deficiencies or orders for
corrective action after a site visit shall be given no less than six
months' time to take corrective action before the deficiencies or
failure to correct may be considered in the next RFA process.
However, the OES shall have the discretion to reduce the time to take
corrective action in cases where the deficiencies present a
significant health or safety risk or when other severe circumstances
are found to exist. If corrective action is deemed necessary, and a
SASP fails to comply, or if other deficiencies exist that, in the
judgment of the OES, cannot be corrected, the OES shall determine,
using its grading system, whether continued funding for the SASP
should be reduced or denied altogether. If a SASP has been determined
to be deficient, the OES may, at any point during the SASP's funding
cycle following the expiration of the period for corrective action,
deny or reduce any further funding.
(I) If a SASP applies or reapplies for funding pursuant to this
section and that funding is denied or reduced, the decision to deny
or reduce funding shall be provided in writing to the SASP, along
with a written explanation of the reasons for the reduction or denial
made in accordance with the grading system for the RFP or RFA
process. Except as otherwise provided, any appeal of the decision to
deny or reduce funding shall be made in accordance with the appeal
process established by the OES. The appeal process shall allow a SASP
a minimum of 30 days to appeal after a decision to deny or reduce
funding. All pending appeals shall be resolved before final funding
decisions are reached.
(J) It is the intent of the Legislature that priority for
additional funds that become available shall be given to currently
funded, new, or previously unfunded SASPs for expansion of services.
However, the OES may determine when expansion is needed to
accommodate underserved or unserved areas. If supplemental funding is
unavailable, the OES shall have the authority to lower the base
level of grants to all currently funded SASPs in order to provide
funding for currently funded, new, or previously unfunded SASPs that
will provide services in underserved or unserved areas. However, to
the extent reasonable, funding reductions shall be reduced
proportionately among all currently funded SASPs. After the amount of
funding reductions has been determined, SASPs that are currently
funded and those applying for funding shall be notified of changes in
the available level of funding prior to the next application
process. Funding reductions made under this paragraph shall not be
subject to appeal.
(K) Notwithstanding any other provision of this section, the OES
may reduce funding to a SASP funded pursuant to this section if
federal funding support is reduced. Funding reductions as a result of
a reduction in federal funding shall not be subject to appeal.
(L) Nothing in this section shall be construed to supersede any
function or duty required by federal acts, rules, regulations, or
guidelines for the distribution of federal grants.
(M) As a condition of receiving funding pursuant to this section,
a SASP shall do each of the following:
(i) Demonstrate an ability to receive and make use of any funds
available from governmental, voluntary, philanthropic, or other
sources that may be used to augment any state funds appropriated for
purposes of this chapter.
(ii) Make every attempt to qualify for any available federal
funding.
(N) For the purposes of this paragraph, "sexual assault" means an
act or attempt made punishable by Section 220, 261, 261.5, 262,
264.1, 266c, 285, 286, 288, 288a, or 647.6.
(O) For the purposes of this paragraph, "sexual assault service
program" or "SASP" means an agency operating a sexual assault/rape
crisis center.
SEC. 72. Section 14200 of the Penal Code is amended to read:
14200. The Attorney General shall establish and maintain the
Violent Crime Information Center to assist in the identification and
the apprehension of persons responsible for specific violent crimes
and for the disappearance and exploitation of persons, particularly
children and individuals with disabilities. The center shall
establish and maintain programs which include, but are not limited
to, all of the following: developing violent offender profiles;
assisting local law enforcement agencies and county district
attorneys by providing investigative information on persons
responsible for specific violent crimes and missing person cases;
providing physical description information and photographs, if
available, of missing persons to county district attorneys, nonprofit
missing persons organizations, and schools; and providing statistics
on missing individuals with disabilities and on missing children,
including, as may be applicable, family abductions, nonfamily
abductions, voluntary missing, and lost children or lost individuals
with disabilities.
SEC. 73. Section 14201 of the Penal Code is amended to read:
14201. (a) The Attorney General shall establish within the center
and shall maintain an online, automated computer system designed to
effect an immediate law enforcement response to reports of missing
persons. The Attorney General shall design the computer system, using
any existing system, including the California Law Enforcement
Telecommunications System, to include an active file of information
concerning persons reported to it as missing and who have not been
reported as found. The computer system shall also include a
confidential historic data base. The Attorney General shall develop a
system of cataloging missing person reports according to a variety
of characteristics in order to facilitate locating particular
categories of reports as needed.
(b) The Attorney General's active files described in subdivision
(a) shall be made available to law enforcement agencies. The Attorney
General shall provide to these agencies the name and personal
description data of the missing person including, but not limited to,
the person's date of birth, color of eyes and hair, sex, height,
weight, any known disability, and race, the time and date he or she
was reported missing, the reporting agency, and any other data
pertinent to the purpose of locating missing persons. However, the
Attorney General shall not release the information if the reporting
agency requests the Attorney General in writing not to release the
information because it would impair a criminal investigation.
(c) The Attorney General shall distribute a missing children and
individuals with disabilities bulletin on a quarterly basis to local
law enforcement agencies, district attorneys, and public schools. The
Attorney General shall also make this information accessible to
other parties involved in efforts to locate missing children and
individuals with disabilities and to those other persons as the
Attorney General deems appropriate.
SEC. 74. Section 14203 of the Penal Code is amended to read:
14203. (a) The online missing persons registry shall accept and
generate complete information on a missing person.
(b) The information on a missing person shall be retrievable by
any of the following:
(1) The person's name.
(2) The person's date of birth.
(3) The person's social security number.
(4) Whether a dental chart has been received, coded, and entered
into the National Crime Information Center Missing Person System by
the Attorney General.
(5) The person's physical description, including hair and eye
color and body marks.
(6) The person's known associates.
(7) The person's last known location.
(8) The name or assumed name of the abductor, if applicable, other
pertinent information relating to the abductor or the assumed
abductor, or both.
(9) The person's known disabilities.
(10) Any other information, as deemed appropriate by the Attorney
General.
(c) The Attorney General, in consultation with local law
enforcement agencies and other user groups, shall develop the form in
which information shall be entered into the system.
(d) The Attorney General shall establish and maintain within the
center a separate, confidential historic database relating to missing
children and individuals with disabilities. The historic database
may be used only by the center for statistical and research purposes.
The historic database shall be set up to categorize cases relating
to missing children and individuals with disabilities by type. These
types shall include the following: runaways, voluntary missing, lost,
abduction involving movement of the victim in the commission of the
crime or sexual exploitation of the victim, nonfamily abduction,
family abduction, and any other categories as determined by the
Attorney General. In addition, the data shall include the number of
missing children and missing individuals with disabilities in this
state and the category of each case.
(e) The center may supply information about specific cases from
the historic database to a local police department, sheriff's
department, or district attorney, only in connection with an
investigation by the police department, sheriff's department, or
district attorney of a missing person case or a violation or
attempted violation of Section 220, 261.5, 262, 273a, 273d, or 273.5,
or any sex offense listed in Section 290, except for the offense
specified in subdivision (d) of Section 243.4.
SEC. 75. Section 14208 of the Penal Code is amended to read:
14208. (a) The Department of Justice shall operate a statewide,
toll-free telephone hotline 24 hours per day, seven days per week to
receive information regarding missing children and individuals with
disabilities and relay this information to the appropriate law
enforcement authorities.
(b) The Department of Justice shall select up to six children per
month from the missing children registry maintained pursuant to
former Section 11114 or pursuant to the system maintained pursuant to
Sections 14201 and 14202 and shall produce posters with photographs
and information regarding these children, including the missing
children hotline telephone number and reward information. The
department shall make these posters available to parties as
prescribed and as the department deems appropriate.
SEC. 76. Section 14209 of the Penal Code is amended to read:
14209. (a) The Department of Justice shall provide appropriate
local reporting agencies with a list of persons still listed as
missing who are under 18 years of age, with an appropriate waiver
form in order to assist the reporting agency in obtaining a
photograph of each of the missing children.
(b) Local reporting agencies shall attempt to obtain the most
recent photograph available for persons still listed as missing and
forward those photographs to the Department of Justice.
(c) The department shall include these photographs, as they
become available, in the quarterly bulletins pursuant to subdivision
(c) of Section 14201.
(d) State and local elected officials, agencies, departments,
boards, and commissions may enclose in their mailings information
regarding missing children or individuals with disabilities
obtainable from the Department of Justice or any organization that is
recognized as a nonprofit, tax-exempt organization under state or
federal law and that has an ongoing missing children program. Elected
officials, agency secretaries, and directors of departments, boards,
and commissions are urged to develop policies to enclose missing
children or individuals with disabilities information in mailings
when it will not increase postage costs, and is otherwise deemed
appropriate.
SEC. 77. Section 14213 of the Penal Code is amended to read:
14213. (a) As used in this title, "missing person" includes, but
is not limited to, a child who has been taken, detained, concealed,
enticed away, or retained by a parent in violation of Chapter 4
(commencing with Section 277) of Title 9 of Part 1. It also includes
any child who is missing voluntarily or involuntarily, or under
circumstances not conforming to his or her ordinary habits or
behavior and who may be in need of assistance.
(b) As used in this title, "evidence that the person is at risk"
includes, but is not limited to, evidence or indications of any of
the following:
(1) The person missing is the victim of a crime or foul play.
(2) The person missing is in need of medical attention.
(3) The person missing has no pattern of running away or
disappearing.
(4) The person missing may be the victim of parental abduction.
(5) The person missing has a mental or physical disability.
(c) As used in this title, "child" is any person under the age of
18.
(d) As used in this title, "center" means the Violent Crime
Information Center.
(e) As used in this title, "individual with a disability"
"disability" has the same meaning as in Section
368.1.
(f) As used in this title, "dental or medical records or X-rays,"
include all those records or X-rays which are in the possession of a
dentist, physician and surgeon, or medical facility.
SEC. 78. Section 259 of the Probate Code is amended to read:
259. (a) Any person shall be deemed to have predeceased a
decedent to the extent provided in subdivision (c) where all of the
following apply:
(1) It has been proven by clear and convincing evidence that the
person is liable for physical abuse, neglect, or fiduciary abuse of
the decedent, who was an elder or an adult with a disability.
(2) The person is found to have acted in bad faith.
(3) The person has been found to have been reckless, oppressive,
fraudulent, or malicious in the commission of any of these acts upon
the decedent.
(4) The decedent, at the time those acts occurred and thereafter
until the time of his or her death, has been found to have been
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(b) Any person shall be deemed to have predeceased a decedent to
the extent provided in subdivision (c) if that person has been
convicted of a violation of Section 236 of the Penal Code or any
offense described in Section 368.2, 368.3, 368.4, 368.5, or 368.6 of
the Penal Code.
(c) Any person found liable under subdivision (a) or convicted
under subdivision (b) shall not (1) receive any property, damages, or
costs that are awarded to the decedent's estate in an action
described in subdivision (a) or (b), whether that person's
entitlement is under a will, a trust, or the laws of intestacy; or
(2) serve as a fiduciary as defined in Section 39, if the instrument
nominating or appointing that person was executed during the period
when the decedent was substantially unable to manage his or her
financial resources or resist fraud or undue influence. This section
shall not apply to a decedent who, at any time following the act or
acts described in paragraph (1) of subdivision (a), or the act or
acts described in subdivision (b), was substantially able to manage
his or her financial resources and to resist fraud or undue influence
within the meaning of subdivision (b) of Section 1801 of the Probate
Code and subdivision (b) of Section 39 of the Civil Code.
(d) For purposes of this section, the following definitions shall
apply:
(1) Physical abuse as defined in Section 15610.63 of the Welfare
and Institutions Code.
(2) Neglect as defined in Section 15610.57 of the Welfare and
Institutions Code.
(3) False imprisonment as defined in Section 368.6 of the Penal
Code.
(4) Fiduciary abuse as defined in Section 15610.30 of the Welfare
and Institutions Code.
(e) Nothing in this section shall be construed to prohibit the
severance and transfer of an action or proceeding to a separate civil
action pursuant to Section 801.
SEC. 79. Section 4128 of the Probate Code is amended to read:
4128. (a) Subject to subdivision (b), a printed form of a durable
power of attorney that is sold or otherwise distributed in this
state for use by a person who does not have the advice of legal
counsel shall contain, in not less than 10-point boldface type or a
reasonable equivalent thereof, the following warning statements:
Notice to Person Executing Durable Power of Attorney
A durable power of attorney is an important legal document. By
signing the durable power of attorney, you are authorizing another
person to act for you, the principal. Before you sign this durable
power of attorney, you should know these important facts:
Your agent (attorney-in-fact) has no duty to act unless you and
your agent agree otherwise in writing.
This document gives your agent the powers to manage, dispose of,
sell, and convey your real and personal property, and to use your
property as security if your agent borrows money on your behalf. This
document does not give your agent the power to accept or receive any
of your property, in trust or otherwise, as a gift, unless you
specifically authorize the agent to accept or receive a gift.
Your agent will have the right to receive reasonable payment for
services provided under this durable power of attorney unless you
provide otherwise in this power of attorney.
The powers you give your agent will continue to exist for your
entire lifetime, unless you state that the durable power of attorney
will last for a shorter period of time or unless you otherwise
terminate the durable power of attorney. The powers you give your
agent in this durable power of attorney will continue to exist even
if you can no longer make your own decisions respecting the
management of your property.
You can amend or change this durable power of attorney only by
executing a new durable power of attorney or by executing an
amendment through the same formalities as an original. You have the
right to revoke or terminate this durable power of attorney at any
time, so long as you are competent.
This durable power of attorney must be dated and must be
acknowledged before a notary public or signed by two witnesses. If it
is signed by two witnesses, they must witness either (1) the signing
of the power of attorney or (2) the principal's signing or
acknowledgment of his or her signature. A durable power of attorney
that may affect real property should be acknowledged before a notary
public so that it may easily be recorded.
You should read this durable power of attorney carefully. When
effective, this durable power of attorney will give your agent the
right to deal with property that you now have or might acquire in the
future. The durable power of attorney is important to you. If you do
not understand the durable power of attorney, or any provision of
it, then you should obtain the assistance of an attorney or other
qualified person.
Notice to Person Accepting the Appointment as Attorney-in-Fact
By acting or agreeing to act as the agent (attorney-in-fact) under
this power of attorney you assume the fiduciary and other legal
responsibilities of an agent. These responsibilities include:
1. The legal duty to act solely in the interest of the principal
and to avoid conflicts of interest.
2. The legal duty to keep the principal's property separate and
distinct from any other property owned or controlled by you.
You may not transfer the principal's property to yourself without
full and adequate consideration or accept a gift of the principal's
property unless this power of attorney specifically authorizes you to
transfer property to yourself or accept a gift of the principal's
property. If you transfer the principal's property to yourself
without specific authorization in the power of attorney, you may be
prosecuted for fraud and/or embezzlement. If the principal is 65
years of age or older at the time that the property is transferred to
you without authority, you may also be prosecuted for elder abuse
under Penal Code Section 368.4 or 368.5. In addition to criminal
prosecution, you may also be sued in civil court.
I have read the foregoing notice and I understand the legal and
fiduciary duties that I assume by acting or agreeing to act as the
agent (attorney-in-fact) under the terms of this power of attorney.
Date:
________________________________
(Signature of agent)
________________________________
(Print name of agent)
(b) Nothing in subdivision (a) invalidates any transaction in
which a third person relied in good faith on the authority created by
the durable power of attorney.
(c) This section does not apply to a statutory form power of
attorney under Part 3 (commencing with Section 4400).
SEC. 80. Section 21350 of the Probate Code is amended to read:
21350. (a) Except as provided in Section 21351, no provision, or
provisions, of any instrument shall be valid to make any donative
transfer to any of the following:
(1) The person who drafted the instrument.
(2) A person who is related by blood or marriage to, is a domestic
partner of, is a cohabitant with, or is an employee of, the person
who drafted the instrument.
(3) Any partner or shareholder of any law partnership or law
corporation in which the person described in paragraph (1) has an
ownership interest, and any employee of that law partnership or law
corporation.
(4) Any person who has a fiduciary relationship with the
transferor, including, but not limited to, a conservator or trustee,
who transcribes the instrument or causes it to be transcribed.
(5) A person who is related by blood or marriage to, is a domestic
partner of, is a cohabitant with, or is an employee of a person who
is described in paragraph (4).
(6) A care custodian of an adult with a disability who is the
transferor.
(7) A person who is related by blood or marriage to, is a domestic
partner of, is a cohabitant with, or is an employee of, a person who
is described in paragraph (6).
(b) For purposes of this section, "a person who is related by
blood or marriage" to a person means all of the following:
(1) The person's spouse or predeceased spouse.
(2) Relatives within the third degree of the person and of the
person's spouse.
(3) The spouse of any person described in paragraph (2).
In determining any relationship under this subdivision, Sections
6406, 6407, and Chapter 2 (commencing with Section 6450) of Part 2 of
Division 6 shall be applicable.
(c) For purposes of this section, the term "adult with a
disability" has the meaning as set forth in Section 368.1 of the
Penal Code and also includes those persons who (1) are older than age
64 and (2) would be adults with disabilities, within the meaning of
Section 368.1 of the Penal Code, if they were between the ages of 18
and 64. The term "care custodian" has the meaning as set forth in
Section 15610.17 of the Welfare and Institutions Code.
(d) For purposes of this section, "domestic partner" means a
domestic partner as defined under Section 297 of the Family Code.
SEC. 81. Section 779.1 of the Public Utilities Code is amended to
read:
779.1. (a) Every electrical, gas, heat, or water corporation
shall allow every residential customer at least 19 days from the date
of mailing its bill for services, postage prepaid, for payment of
the charges demanded. No corporation subject to this section may
terminate residential service for nonpayment of a delinquent account
unless the corporation first gives notice of the delinquency and
impending termination, at least 10 days prior to the proposed
termination, by means of a notice mailed, postage prepaid, to the
customer to whom the service is billed, not earlier than 19 days from
the date of mailing the corporation's bill for services, and the
10-day period shall not commence until five days after the mailing of
the notice.
(b) Every corporation shall make a reasonable attempt to contact
an adult person residing at the premises of the customer by telephone
or personal contact at least 24 hours prior to any termination of
service, except that, whenever telephone or personal contact cannot
be accomplished, the corporation shall give, either by mail or in
person, a notice of termination of service at least 48 hours prior to
termination.
(c) Every corporation shall make available to its residential
customers who are 65 years of age or older, or who are adults with
disabilities as defined in Section 368.1 of the Penal Code, a
third-party notification service, whereby the corporation will
attempt to notify a person designated by the customer to receive
notification when the customer's account is past due and subject to
termination. The notification shall include information on what is
required to prevent termination of service. The residential customer
shall make a request for third-party notification on a form provided
by the corporation, and shall include the written consent of the
designated third party. The third-party notification does not
obligate the third party to pay the overdue charges, nor shall it
prevent or delay termination of service.
(d) Every notice of termination of service pursuant to subdivision
(a) or (b) shall include all of the following information:
(1) The name and address of the customer whose account is
delinquent.
(2) The amount of the delinquency.
(3) The date by which payment or arrangements for payment is
required in order to avoid termination.
(4) The procedure by which the customer may initiate a complaint
or request an investigation concerning service or charges.
(5) The procedure by which the customer may request amortization
of the unpaid charges.
(6) The procedure for the customer to obtain information on the
availability of financial assistance, including private, local,
state, or federal sources, if applicable.
(7) The telephone number of a representative of the corporation
who can provide additional information or institute arrangements for
payment.
(8) The telephone number of the commission to which inquiries by
the customer may be directed.
All written notices shall be in a clear and legible format.
(e) Any residential customer whose complaint or request for an
investigation has resulted in an adverse determination by the
corporation may appeal the determination to the commission. Any
subsequent appeal of the dispute or complaint to the commission is
not subject to this section.
(f) If a residential customer fails to comply with an amortization
agreement, the corporation shall not terminate service without
giving notice to the customer at least 48 hours prior to termination
of the conditions the customer is required to meet to avoid
termination, but this notice does not entitle the customer to further
investigation by the corporation.
(g) No termination of service may be effected without compliance
with this section. Any service wrongfully terminated shall be
restored without charge for the restoration of service, and a
notation thereof shall be mailed to the customer at his or her
billing address.
SEC. 82. Section 10010.1 of the Public Utilities Code is amended
to read:
10010.1. (a) No public utility furnishing light, heat, water, or
power may terminate residential service on account of nonpayment of a
delinquent account unless the public utility first gives notice of
the delinquency and impending termination, at least 10 days prior to
the proposed termination, by means of a notice mailed, postage
prepaid, to the customer to whom the service is billed, not earlier
than 19 days from the date of mailing the public utility's bill for
services, and the 10-day period shall not commence until five days
after the mailing of the notice.
(b) Every public utility shall make a reasonable attempt to
contact an adult person residing at the premises of the customer by
telephone or personal contact, at least 24 hours prior to any
termination of service, except that, whenever telephone or personal
contact cannot be accomplished, the public utility shall give, by
mail, in person, or by posting in a conspicuous location at the
premises, a notice of termination of service, at least 48 hours prior
to termination.
(c) Every public utility shall make available to its residential
customers who are 65 years of age or older, or who are adults with
disabilities as defined in Section 368.1 of the Penal Code, a
third-party notification service, whereby the public utility will
attempt to notify a person designated by the customer to receive
notification when the customer's account is past due and subject to
termination. The notification shall include information on what is
required to prevent termination of service. The residential customer
shall make a request for third-party notification on a form provided
by the public utility, and shall include the written consent of the
designated third party. The third-party notification does not
obligate the third party to pay the overdue charges, nor shall it
prevent or delay termination of service.
(d) Every notice of termination of service pursuant to subdivision
(a) shall include all of the following information:
(1) The name and address of the customer whose account is
delinquent.
(2) The amount of the delinquency.
(3) The date by which payment or arrangements for payment is
required in order to avoid termination.
(4) The procedure by which the customer may initiate a complaint
or request an investigation concerning service or charges, except
that, if the bill for service contains a description of that
procedure, the notice pursuant to subdivision (a) is not required to
contain that information.
(5) The procedure by which the customer may request amortization
of the unpaid charges.
(6) The procedure for the customer to obtain information on the
availability of financial assistance, including private, local,
state, or federal sources, if applicable.
(7) The telephone number of a representative of the public utility
who can provide additional information or institute arrangements for
payment.
Every notice of termination of service pursuant to subdivision (b)
shall include the items of information in paragraphs (1), (2), (3),
(6), and (7).
All written notices shall be in a clear and legible format.
(e) If a residential customer fails to comply with an amortization
agreement, the public utility shall not terminate service without
giving notice to the customer at least 48 hours prior to termination
of the conditions the customer is required to meet to avoid
termination, but the notice does not entitle the customer to further
investigation by the public utility.
(f) No termination of service may be effected without compliance
with this section. Any service wrongfully terminated shall be
restored without charge for the restoration of service, and a
notation thereof shall be mailed to the customer at his or her
billing address.
SEC. 83. Section 12823.1 of the Public Utilities Code is amended
to read:
12823.1. (a) No district furnishing light, heat, water, or power
may terminate residential service on account of nonpayment of a
delinquent account unless the district first gives notice of the
delinquency and impending termination, at least 10 days prior to the
proposed termination, by means of a notice mailed, postage prepaid,
to the customer to whom the service is billed not earlier than 19
days from the date of mailing the district's bill for services, and
the 10-day period shall not commence until five days after the
mailing of the notice.
(b) Every district shall make a reasonable attempt to contact an
adult person residing at the premises of the customer by telephone or
personal contact, at least 24 hours prior to any termination of
service, except that, whenever telephone or personal contact cannot
be accomplished, the district shall give, by mail, in person, or by
posting in a conspicuous location at the premises, a notice of
termination of service, at least 48 hours prior to termination.
(c) Every district shall make available to its residential
customers who are 65 years of age or older, or who are adults with
disabilities as defined in Section 368.1 of the Penal Code, a
third-party notification service, whereby the district will attempt
to notify a person designated by the customer to receive notification
when the customer's account is past due and subject to termination.
The notification shall include information on what is required to
prevent termination of service. The residential customer shall make a
request for third-party notification on a form provided by the
district, and shall include the written consent of the designated
third party. The third-party notification does not obligate the third
party to pay the overdue charges, nor shall it prevent or delay
termination of service.
(d) Every notice of termination of service pursuant to subdivision
(a) shall include all of the following information:
(1) The name and address of the customer whose account is
delinquent.
(2) The amount of the delinquency.
(3) The date by which payment or arrangements for payment is
required in order to avoid termination.
(4) The procedure by which the customer may initiate a complaint
or request an investigation concerning service or charges, except
that, if the bill for service contains a description of that
procedure, the notice pursuant to subdivision (a) is not required to
contain that information.
(5) The procedure by which the customer may request amortization
of the unpaid charges.
(6) The procedure for the customer to obtain information on the
availability of financial assistance, including private, local,
state, or federal sources, if applicable.
(7) The telephone number of a representative of the district who
can provide additional information or institute arrangements for
payment.
Every notice of termination of service pursuant to subdivision (b)
shall include the items of information in paragraphs (1), (2), (3),
(6), and (7).
All written notices shall be in a clear and legible format.
(e) If a residential customer fails to comply with an amortization
agreement, the district shall not terminate service without giving
notice to the customer at least 48 hours prior to termination of the
conditions the customer is required to meet to avoid termination, but
the notice does not entitle the customer to further investigation by
the district.
(f) No termination of service may be effected without compliance
with this section. Any service wrongfully terminated shall be
restored without charge for the restoration of service, and a
notation thereof shall be mailed to the customer at his or her
billing address.
SEC. 84. Section 16482.1 of the Public Utilities Code is amended
to read:
16482.1. (a) No district furnishing light, heat, water, or power,
or means for the disposition of garbage, sewage, or refuse matter,
may terminate residential service on account of nonpayment of a
delinquent account unless the district first gives notice of the
delinquency and impending termination, at least 10 days prior to the
proposed termination, by means of a notice mailed, postage prepaid,
to the customer to whom the service is billed, not earlier than 19
days from the date of mailing the district's bill for services, and
the 10-day period shall not commence until five days after the
mailing of the notice.
(b) Every district shall make a reasonable, good faith effort to
contact an adult person residing at the premises of the customer by
telephone or personal contact, at least 48 hours prior to any
termination of service, except that, whenever telephone or personal
contact cannot be accomplished, the district shall give, by mail, in
person, or by posting in a conspicuous location at the premises, a
notice of termination of service, at least 48 hours prior to
termination.
(c) Every district shall make available to its residential
customers who are 65 years of age or older, or who are adults with
disabilities as defined in Section 368.1 of the Penal Code, a
third-party notification service, whereby the district will attempt
to notify a person designated by the customer to receive notification
when the customer's account is past due and subject to termination.
The notification shall include information on what is required to
prevent termination of service. The residential customer shall make a
request for third-party notification on a form provided by the
district, and shall include the written consent of the designated
third party. The third-party notification does not obligate the third
party to pay the overdue charges, nor shall it prevent or delay
termination of service.
(d) Every notice of termination of service pursuant to subdivision
(a) shall include all of the following information:
(1) The name and address of the customer whose account is
delinquent.
(2) The amount of the delinquency.
(3) The date by which payment or arrangements for payment is
required in order to avoid termination.
(4) The procedure by which the customer may initiate a complaint
or request an investigation concerning service or charges, except
that, if the bill for service contains a description of that
procedure, the notice pursuant to subdivision (a) is not required to
contain that information.
(5) The procedure by which the customer may request amortization
of the unpaid charges.
(6) The procedure for the customer to obtain information on the
availability of financial assistance, including private, local,
state, or federal sources, if applicable.
(7) The telephone number of a representative of the district who
can provide additional information or institute arrangements for
payment.
Every notice of
termination of service pursuant to subdivision (b) shall include the
items of information in paragraphs (1), (2), (3), (6), and (7).
All written notices shall be in a clear and legible format.
(e) If a residential customer fails to comply with an amortization
agreement, the district shall not terminate service without giving
notice to the customer at least 48 hours prior to termination of the
conditions the customer is required to meet to avoid termination, but
this notice does not entitle the customer to further investigation
by the district.
(f) No termination of service may be effected without compliance
with this section. Any service wrongfully terminated shall be
restored without charge for the restoration of the service, and a
notation thereof shall be mailed to the customer at his or her
billing address.
SEC. 85. Section 4427 of the Welfare and Institutions Code is
amended to read:
4427. (a) When the department has reason to believe that any
person held in custody as developmentally disabled is wrongfully
deprived of liberty, or is cruelly or negligently treated, or that
inadequate provision is made for the skillful medical care, proper
supervision, and safekeeping of any such person, or is otherwise the
victim of a crime, the department shall do either of the following:
(1) Report the case immediately to the local police department or
sheriff's office that has jurisdiction.
(2) Ascertain the facts. It may issue compulsory process for the
attendance of witnesses and the production of papers, and may
exercise the powers conferred upon a referee in a superior court. It
may make such orders for the care and treatment of such person as it
deems proper. If it ascertains that the person is the victim of a
crime, it shall report the case immediately to the local police
department or sheriff's office that has jurisdiction.
(b) Whenever the department undertakes an investigation into the
general management and administration of any establishment or place
of detention for the developmentally disabled, it may give notice of
such investigation to the Attorney General, who shall appear
personally or by deputy, to examine witnesses in attendance and to
assist the department in the exercise of the powers conferred upon it
in this code.
(c) The department may at any time cause the patients of any
county or city almshouse to be visited and examined, in order to
ascertain if developmentally disabled persons are kept therein.
(d) The reporting requirements of this section are in addition to,
and do not substitute for, the reporting requirements of mandated
reporters.
SEC. 86. Section 4427.5 of the Welfare and Institutions Code is
amended to read:
4427.5. (a) (1) A developmental center
shall immediately report all resident deaths and serious injuries of
unknown origin to the appropriate local law enforcement agency that
may, at its discretion, conduct an independent investigation.
(2) The reporting requirements of this subdivision are in addition
to, and do not substitute for, the reporting requirements of
mandated reporters.
(b) The department shall do both of the following:
(1) Annually provide written information to every developmental
center employee regarding all of the following:
(A) The statutory and departmental requirements for mandatory
reporting of suspected or known abuse , neglect, and other
crimes against individuals with disabilities.
(B) The rights and protections afforded to individuals' reporting
of suspected or known abuse , neglect, and other crimes
against individuals with disabilities.
(C) The penalties for failure to report suspected or known abuse
, neglect, and other crimes against individuals
with disabilities.
(D) The telephone numbers for reporting suspected or known
abuse to designated investigators of the department and to
local abuse or neglect to the Office of Protective
Services and to law enforcement agencies.
(2) On or before January 1, 2010, subject to the availability of
adequate funding, and in consultation with employee organizations,
advocates, consumers, and family members, develop a poster that
encourages staff, residents, and visitors to report suspected or
known crimes against individuals with disabilities, including, but
not limited to, abuse and neglect , and provides
information on how to make these reports.
SEC. 87. Section 4433 of the Welfare and Institutions Code is
amended to read:
4433. (a) The Legislature finds and declares all of the
following:
(1) The State of California accepts its responsibility to ensure
and uphold the rights of persons with developmental disabilities and
an obligation to ensure that laws, regulations, and policies on the
rights of persons with developmental disabilities are observed and
protected.
(2) Persons with developmental disabilities are vulnerable to
abuse, neglect, deprivations of their rights, and other crimes.
(3) Clients' rights advocacy services provided by the regional
centers, the department at the state hospitals, and the department's
Office of Human Rights may have conflicts of interest, or the
appearance of a conflict of interest.
(4) The services provided to individuals with developmental
disabilities and their families are of such a special and unique
nature that they cannot satisfactorily be provided by state agencies
or regional centers and must be contracted out pursuant to paragraph
(3) of subdivision (b) of Section 19130 of the Government Code.
(b) (1) To avoid the potential for a conflict of interest or the
appearance of a conflict of interest, beginning January 1, 1998, the
department shall contract for clients' rights advocacy services. The
department shall solicit a single statewide contract with a nonprofit
agency that results in at least three responsive bids that meet all
of the criteria specified in paragraph (2) to perform the services
specified in subdivision (d). If three responsive bids are not
received, the department may rebid the contract on a regional basis,
not to exceed three regional contracts and one contract for
developmental centers and headquarters.
(2) Any contractor selected shall meet the following requirements:
(A) The contractor can demonstrate the capability to provide
statewide advocacy services to individuals with developmental
disabilities living in developmental centers and in the community.
(B) The contractor does not directly or indirectly provide
services to individuals with developmental disabilities, except
advocacy services.
(C) The contractor has knowledge of the service system,
entitlements, and service rights of persons receiving services from
regional centers and in state hospitals.
(D) The contractor can demonstrate the capability of coordinating
services with the protection and advocacy agency specified in
Division 4.7 (commencing with Section 4900) and the area boards.
(E) The contractor has not provided any services, except advocacy
services, to, or been employed by, any regional center or the
Association of Regional Center Agencies during the two-year period
prior to the effective date of the contract.
(c) For the purposes of this section, the Legislature further
finds and declares that because of a potential conflict of interest
or the appearance of a conflict of interest, the goals and purposes
of the regional center clients' rights advocacy services, the state
hospitals, and the services of the Office of Human Rights, cannot be
accomplished through the utilization of persons selected pursuant to
the regular civil service system, nor can the services be provided
through the department's contracts with regional centers.
Accordingly, contracts into which the department enters pursuant to
this section are permitted and authorized by paragraphs (3) and (5)
of subdivision (b) of Section 19130 of the Government Code.
(d) The contractor shall do all of the following:
(1) Provide clients' rights advocacy services to persons with
developmental disabilities who are consumers of regional centers and
to individuals who reside in the state developmental centers and
hospitals, including ensuring the rights of persons with
developmental disabilities, and assisting persons with developmental
disabilities in pursuing administrative and legal remedies.
(2) Investigate and take action as appropriate and necessary to
resolve complaints from, or concerning persons with, developmental
disabilities residing in licensed health and community care
facilities regarding abuse, and unreasonable denial, or punitive
withholding, of rights guaranteed under this division.
(3) Provide consultation, technical assistance, supervision and
training, and support services for clients' rights advocates that
were previously the responsibility of the Office of Human Rights.
(4) Coordinate the provision of clients' rights advocacy services
in consultation with the department, stakeholder organizations, and
persons with developmental disabilities and their families
representing California's multicultural diversity.
(5) Provide at least two self-advocacy trainings for consumers and
family members.
(e) In order to ensure that individuals with developmental
disabilities have access to high quality advocacy services, the
contractor shall establish a grievance procedure and shall advise
persons receiving services under the contract of the availability of
other advocacy services, including the services provided by the
protection and advocacy agency specified in Division 4.7 (commencing
with Section 4900) and the area boards.
(f) The department shall contract on a multiyear basis for a
contract term of up to five years, subject to the annual
appropriation of funds by the Legislature.
(g) This section shall not prohibit the department and the
regional centers from advocating for the rights, including the right
to generic services, of persons with developmental disabilities.
SEC. 87.5. Section 4493 of the Welfare
and Institutions Code is repealed.
4493. The hospital administrator of each state hospital may
designate, in writing, as a police officer, one or more of the bona
fide employees of the hospital. The hospital administrator and each
such police officer have the powers and authority conferred by law
upon peace officers listed in Section 830.38 of the Penal Code. Such
police officers shall receive no compensation as such and the
additional duties arising therefrom shall become a part of the duties
of their regular positions. When and as directed by the hospital
administrator, such police officers shall enforce the rules and
regulations of the hospital, preserve peace and order on the premises
thereof, and protect and preserve the property of the state.
SEC. 87.7. Part 3 (commencing with Section 4499.5)
is added to Division 4.1 of the Welfare and Institutions
Code , to read:
PART 3. Law Enforcement and Public Safety
4499.5. There is in the department a law enforcement and public
safety division called the Office of Protective Services.
4499.51. As used in this part:
(a) "Chief" means the chief of the Office of Protective Services.
(b) "Office" means the Office of Protective Services.
4499.52. The Governor shall appoint a highly qualified peace
officer as the executive manager of the office called the chief. The
chief shall report directly to the director.
4499.53. The commander of the office at each developmental center
and other department facility shall be a peace officer and shall
directly report to either:
(a) The chief.
(b) Another manager in the office, who shall be a peace officer
and shall report directly to the chief.
4499.54. The office shall consist of the peace officers, special
investigators, and firefighters employed by the department, and any
other employees as may be necessary to carry out its law enforcement
and public safety functions.
4499.55. The office shall have statewide law enforcement
jurisdiction over developmental centers and other department
facilities and over crimes against clients of the department,
including violations of Section 15630 concerning mandated reporting,
concurrent with the local law enforcement agencies and concurrent
with any other law enforcement agencies with jurisdiction.
4499.56. The peace officers in the office may carry firearms only
in extraordinary circumstances when authorized by the department and
only under terms and conditions specified by the department.
SEC. 88. Section 4514 of the Welfare and Institutions Code is
amended to read:
4514. All information and records obtained in the course of
providing intake, assessment, and services under Division 4.1
(commencing with Section 4400), Division 4.5 (commencing with Section
4500), Division 6 (commencing with Section 6000), or Division 7
(commencing with Section 7100) to persons with developmental
disabilities shall be confidential. Information and records obtained
in the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons,
whether employed by a regional center or state developmental center,
or not, in the provision of intake, assessment, and services or
appropriate referrals. The consent of the person with a developmental
disability, or his or her guardian or conservator, shall be obtained
before information or records may be disclosed by regional center or
state developmental center personnel to a professional not employed
by the regional center or state developmental center, or a program
not vendored by a regional center or state developmental center.
(b) When the person with a developmental disability, who has the
capacity to give informed consent, designates individuals to whom
information or records may be released, except that nothing in this
chapter shall be construed to compel a physician, psychologist,
social worker, marriage and family therapist, nurse, attorney, or
other professional to reveal information that has been given to him
or her in confidence by a family member of the person unless a valid
release has been executed by that family member.
(c) To the extent necessary for a claim, or for a claim or
application to be made on behalf of a person with a developmental
disability for aid, insurance, government benefit, or medical
assistance to which he or she may be entitled.
(d) If the person with a developmental disability is a minor,
ward, or conservatee, and his or her parent, guardian, conservator,
or limited conservator with access to confidential records,
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this chapter shall be construed to
compel a physician, psychologist, social worker, marriage and family
therapist, nurse, attorney, or other professional to reveal
information that has been given to him or her in confidence by a
family member of the person unless a valid release has been executed
by that family member.
(e) For research, provided that the Director of Developmental
Services designates by regulation rules for the conduct of research
and requires the research to be first reviewed by the appropriate
institutional review board or boards. These rules shall include, but
need not be limited to, the requirement that all researchers shall
sign an oath of confidentiality as follows:
"" ____________________________
Date
As a condition of doing research concerning persons with
developmental disabilities who have received services from ____ (fill
in the facility, agency or person), I, ____, agree to obtain the
prior informed consent of persons who have received services to the
maximum degree possible as determined by the appropriate
institutional review board or boards for protection of human subjects
reviewing my research, or the person's parent, guardian, or
conservator, and I further agree not to divulge any information
obtained in the course of the research to unauthorized persons, and
not to publish or otherwise make public any information regarding
persons who have received services so those persons who received
services are identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
________________________''
Signed
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) To the courts and designated parties as part of a regional
center report or assessment in compliance with a statutory or
regulatory requirement, including, but not limited to, Section 1827.5
of the Probate Code, Sections 1001.22 and 1370.1 of the Penal Code,
Section 6502 of the Welfare and Institutions Code, and Section 56557
of Title 17 of the California Code of Regulations.
(j) To the attorney for the person with a developmental disability
in any and all proceedings upon presentation of a release of
information signed by the person, except that when the person lacks
the capacity to give informed consent, the regional center or state
developmental center director or designee, upon satisfying himself or
herself of the identity of the attorney, and of the fact that the
attorney represents the person, shall release all information and
records relating to the person except that nothing in this article
shall be construed to compel a physician, psychologist, social
worker, marriage and family therapist, nurse, attorney, or other
professional to reveal information that has been given to him or her
in confidence by a family member of the person unless a valid release
has been executed by that family member.
(k) Upon written consent by a person with a developmental
disability previously or presently receiving services from a regional
center or state developmental center, the director of the regional
center or state developmental center, or his or her designee, may
release any information, except information that has been given in
confidence by members of the family of the person with developmental
disabilities, requested by a probation officer charged with the
evaluation of the person after his or her conviction of a crime if
the regional center or state developmental center director or
designee determines that the information is relevant to the
evaluation. The consent shall only be operative until sentence is
passed on the crime of which the person was convicted. The
confidential information released pursuant to this subdivision shall
be transmitted to the court separately from the probation report and
shall not be placed in the probation report. The confidential
information shall remain confidential except for purposes of
sentencing. After sentencing, the confidential information shall be
sealed.
() Between persons who are trained and qualified to serve on
"multidisciplinary personnel" teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) When a person with a developmental disability dies from any
cause, natural or otherwise, while hospitalized in a state
developmental center, the State Department of Developmental Services,
the physician in charge of the client, or the professional in charge
of the facility or his or her designee, shall release information
and records to the coroner. The State Department of Developmental
Services, the physician in charge of the client, or the professional
in charge of the facility or his or her designee, shall not release
any notes, summaries, transcripts, tapes, or records of conversations
between the resident and health professional personnel of the
hospital relating to the personal life of the resident that is not
related to the diagnosis and treatment of the resident's physical
condition. Any information released to the coroner pursuant to this
section shall remain confidential and shall be sealed and shall not
be made part of the public record.
(n) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Services, and who are licensed or registered health professionals,
and to authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
health facilities and community care facilities, and to ensure that
the standards of care and services provided in these facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facility is subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 2
(commencing with Section 1250) and Chapter 3 (commencing with Section
1500) of Division 2 of the Health and Safety Code, or a criminal,
civil, or administrative proceeding in relation thereto. The
confidential information may be used by the State Department of
Health Services Public Health or the
State Department of Social Services in a criminal, civil, or
administrative proceeding. The confidential information shall be
available only to the judge or hearing officer and to the parties to
the case. Names which are confidential shall be listed in attachments
separate to the general pleadings. The confidential information
shall be sealed after the conclusion of the criminal, civil, or
administrative hearings, and shall not subsequently be released
except in accordance with this subdivision. If the confidential
information does not result in a criminal, civil, or administrative
proceeding, it shall be sealed after the State Department of
Health Services Public Health or the State
Department of Social Services decides that no further action will be
taken in the matter of suspected licensing violations. Except as
otherwise provided in this subdivision, confidential information in
the possession of the State Department of Health Services
Public Health or the State Department of Social
Services shall not contain the name of the person with a
developmental disability.
(o) To any board which licenses and certifies professionals in the
fields of mental health and developmental disabilities pursuant to
state law, when the Director of Developmental Services has reasonable
cause to believe that there has occurred a violation of any
provision of law subject to the jurisdiction of a board and the
records are relevant to the violation. The information shall be
sealed after a decision is reached in the matter of the suspected
violation, and shall not subsequently be released except in
accordance with this subdivision. Confidential information in the
possession of the board shall not contain the name of the person with
a developmental disability.
(p) To governmental law enforcement agencies by the director of a
regional center or state developmental center, or his or her
designee, when (1) the person with a developmental disability has
been reported lost or missing or (2) there is probable cause to
believe that a person with a developmental disability has committed,
or has been the victim of, murder, manslaughter, mayhem, aggravated
mayhem, kidnapping, robbery, carjacking, assault with the intent to
commit a felony, arson, extortion, rape, forcible sodomy, forcible
oral copulation, assault or battery, or unlawful possession of a
weapon, as provided in Section 12020 of the Penal Code.
This subdivision shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
treatment unless relevant to the crime involved.
This subdivision shall not be construed as an exception to, or in
any other way affecting, the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code, or
Chapter 2 (commencing with Section 15600) and Chapter 4 (commencing
with Section 15750) of Part 3.2 of Division 9.
(q) To the Youth Authority and Adult Correctional Agency or any
component thereof, as necessary to the administration of justice.
(r) To an agency mandated to investigate a report of abuse filed
pursuant to either Section 11164 of the Penal Code or Section 15630
of the Welfare and Institutions Code for the purposes of either a
mandated or voluntary report or when those agencies request
information in the course of conducting their investigation.
(s) When a person with developmental disabilities, or the parent,
guardian, or conservator of a person with developmental disabilities
who lacks capacity to consent, fails to grant or deny a request by a
regional center or state developmental center to release information
or records relating to the person with developmental disabilities
within a reasonable period of time, the director of the regional or
developmental center, or his or her designee, may release information
or records on behalf of that person provided both of the following
conditions are met:
(1) Release of the information or records is deemed necessary to
protect the person's health, safety, or welfare.
(2) The person, or the person's parent, guardian, or conservator,
has been advised annually in writing of the policy of the regional
center or state developmental center for release of confidential
client information or records when the person with developmental
disabilities, or the person's
parent, guardian, or conservator, fails to respond to a request for
release of the information or records within a reasonable period of
time. A statement of policy contained in the client's individual
program plan shall be deemed to comply with the notice requirement of
this paragraph.
(t) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents or copies thereof that are no longer in the possession
of the employee or the employee's legal representative because they
were from any source containing confidential information protected by
this section, and all copies of those records and documents, within
10 days of the date that the adverse action becomes final except for
the actual records and documents submitted to the administrative
tribunal as a component of an appeal from the adverse action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents
that are no longer in the possession of the employee or the employee'
s legal representatives because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that have been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
SEC. 89. Section 4689.2 of the Welfare and Institutions Code is
amended to read:
4689.2. (a) It is the intent of the Legislature in enacting this
section to require the filing of fingerprints of those individuals
whose contact with consumers receiving services and supports from
service providers vendorized by the Regional Center, including family
home agencies, as defined in subdivision (c) of Section 4689.1, and
family homes, as defined in subdivision (b) of Section 4689.1, may
pose a risk to the consumers' health and safety. It is also the
intent of the Legislature that parent vendors and consumer vendors
who provide services for themselves are to be exempt from this
requirement.
(b) As part of the vendor approval process for family home
agencies and family homes, the State Department of Developmental
Services shall secure from the Department of Justice and, if
applicable, the Federal Bureau of Investigation, a full criminal
history to determine whether the applicant or any other person
specified in subdivision (c) has ever been convicted of, or arrested
for, a crime other than a minor traffic violation. If it is found
that the applicant, or any other person specified in subdivision (c),
has been convicted of, or is awaiting trial for, a crime other than
a minor traffic violation, the vendor application shall be denied,
unless the director grants an exemption pursuant to subdivision (f).
If no criminal record information has been recorded, the Department
of Justice shall provide the applicant and the State Department of
Developmental Services with a statement of that fact. All
other nonlicensed service providers, excluding family homes and
family home agencies as described above, shall require the
fingerprinting of any person applying to become employed by the
provider to perform tasks as defined in paragraphs (1) through (4),
inclusive, of subdivision (c). The provider may employ the applicant
only after receipt and review of the criminal background check
report. The provider may terminate the application before receipt of
the criminal background check report. The provider shall receive and
review subsequent arrest and conviction notices from the Department
of Justice and has the authority to reassign or terminate employment
based on the subsequent arrest notifications. fact.
(c) In addition to the applicant, this section shall be applicable
to criminal convictions of the following persons:
(1) Adults responsible for administration or direct supervision of
staff.
(2) Any adult other than a consumer residing in the family home.
(3) Any adult who provides assistance to the consumer in dressing,
grooming, bathing, or personal hygiene.
(4) Any staff person, employee, consultant, or volunteer who has
frequent and routine contact with the consumer. In determining who
has frequent contact, any consultant or volunteer shall be exempt
unless the volunteer is used to replace or supplement staff or family
home personnel in providing services or supports, or both, to
consumers. In determining who has routine contact, staff and
employees under direct onsite supervision of the family home agency
and who are not providing direct services and supports or who have
only occasional or intermittent contact with consumers shall be
exempt.
(5) The executive director of the entity applying for
vendorization or other person serving in like capacity.
(6) Officers of the governing body of the applicant, or other
persons with a financial interest in the applicant, as determined
necessary by the department by regulation. The criteria used in the
development of these regulations shall be based on the person's
capability to exercise substantial influence over the operation of
the family home agency or family home.
(d) (1) Subsequent to vendorization, any person specified in
subdivision (c) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a family home
agency or a family home, be fingerprinted and sign a declaration
under penalty of perjury regarding any prior criminal convictions.
The vendor shall submit these fingerprints to the Department of
Justice not later than four calendar days following employment,
residence, or initial presence in the family home agency or family
home. These fingerprints shall be on a card provided by the State
Department of Developmental Services for the purpose of obtaining a
permanent set of fingerprints. If fingerprints are not submitted to
the Department of Justice, as required in this section, that failure
shall result in a sanction and the fingerprints shall then be
submitted to the State Department of Developmental Services for
processing. Upon request of the vendor, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprints.
(2) Within 30 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of
Developmental Services of the criminal record information, as
provided in subdivision (b). If no criminal record information has
been recorded, the Department of Justice shall provide the vendor and
the State Department of Developmental Services with a statement of
that fact within 15 calendar days of receipt of the fingerprints. If
new fingerprints are required for processing, the Department of
Justice shall, within 15 calendar days from the date of receipt of
the fingerprints, notify the vendor that the fingerprints were
illegible.
(3) (A) Except for persons specified in paragraph (2) of
subdivision (c), the vendor shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of
Developmental Services, on the basis of the fingerprints submitted to
the Department of Justice, that the person has been convicted of, or
is awaiting trial for, a sex offense against a minor, or has been
convicted for an offense specified in Section 243.4, 273a, 273d, or
Section 368.2 or 368.3 of the Penal Code, or has been convicted of a
felony, the State Department of Developmental Services shall notify
the vendor to act immediately to terminate the person's employment,
remove the person from the family home, or bar the person from
entering the family home. The State Department of Developmental
Services may subsequently grant an exemption pursuant to subdivision
(f).
(B) If the conviction or arrest was for another crime, except a
minor traffic violation, the vendor shall, upon notification by the
State Department of Developmental Services, act immediately to do
either of the following:
(i) Terminate the person's employment, remove the person from the
family home, or bar the person from entering the family home.
(ii) Seek an exemption pursuant to subdivision (f). The State
Department of Developmental Services shall determine if the person
shall be permitted to remain in the family home until a decision on
the exemption is rendered.
(e) For purposes of this section or any other provision of this
chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Developmental Services is permitted to take
following the establishment of a conviction may be taken when the
time for appeal has elapsed, or the judgment of conviction has been
affirmed on appeal or when an order granting probation is made
suspending the imposition of sentence, notwithstanding a subsequent
order pursuant to Sections 1203.4 and 1203.4a of the Penal Code
permitting the person to withdraw his or her plea of guilty, or
dismissing the accusation, information, or indictment. For purposes
of this section or any other provision of this chapter, the record of
a conviction, or a copy thereof certified by the clerk of the court
or by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice and, if applicable, the
Federal Bureau of Investigation, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(f) After review of the record, the Director of Developmental
Services may grant an exemption from denial of vendor approval
pursuant to subdivision (b), or for employment in a family home
agency or family home of residence or presence in a family home as
specified in subdivision (c), if the director has substantial and
convincing evidence to support a reasonable belief that the applicant
and the person convicted of the crime, if other than the applicant,
are of such good character as to justify vendor approval or granting
an exemption for purposes of subdivision (c). Except as otherwise
provided in this subdivision, no exemption shall be granted if the
conviction was for an offense specified in Section 220, 243.4, 264.1,
paragraph (1) of subdivision (a) of Section 273a, Section 273d, 288,
289, or subdivision (a) or (b) of Section 368 of the Penal Code, or
for another crime against an individual specified in subdivision (c)
of Section 667.5 of the Penal Code. The director may grant an
exemption if the employee, prospective employee, or other person
identified in subdivision (c) who was convicted of a crime against an
individual in paragraph (1), (2), (7), or (8) of subdivision (c) of
Section 667.5 of the Penal Code, has been rehabilitated as provided
in Section 4852.03 of the Penal Code and has maintained the conduct
required in Section 4852.05 of the Penal Code for at least 10 years
and has the recommendation of the district attorney representing the
employee's county of residence, or if the employee, prospective
employee, or other persons identified in subdivision (c) has received
a certificate of rehabilitation pursuant to Chapter 3.5 (commencing
with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
(g) For purposes of compliance with this section, the department
may permit an individual to transfer a current criminal record
clearance, as described in subdivision (b), from one family home
agency or family home to another, as long as the criminal record
clearance has been processed through the State Department of
Developmental Services.
(h) If a family home agency or a family home is required by law to
deny employment or to terminate employment of any employee based on
written notification from the state department pursuant to
subdivision (c) the family home agency or the family home shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(i) (1) Any person specified in paragraphs 1 to 4, inclusive, of
subdivision (c), and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in any nonlicensed
regional center vendorized service provider, excluding family homes
and family home agencies as described above, be digitally
fingerprinted through the Department of Justice and sign a
declaration under penalty of perjury regarding any prior criminal
convictions. The provider may employ the applicant only after
receipt and review of the criminal background check report. The
provider may terminate the application before receipt of the criminal
background check report. The provider shall receive and review
subsequent arrest and conviction notices from the Department of
Justice and has the authority to reassign or terminate employment
based on the information provided in the subsequent arrest
notifications. Nonlicensed regional center vendorized service
providers shall fingerprint all current employees specified in
paragraphs (1) to (4), inclusive, of subdivision (c) on or before
July 1, 2009. If fingerprints of current employees are not submitted
to the Department of Justice on or before July 1, 2009, or if a
provider hires an employee before receiving the background check
reports from the Department of Justice, as required in this section,
that failure shall result in a sanction and the fingerprints shall
then be submitted to the State Department of Developmental Services
for processing. Upon request of the vendor, who shall enclose a
self-addressed stamped postcard or designate an e-mail address for
this purpose, the Department of Justice shall verify receipt of the
fingerprints.
(2) The provider shall not charge a fee to any person described in
paragraphs (1) to (4), inclusive, of subdivision (c) or to any
consumer for carrying out the requirements of this section.
(3) Within 15 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the provider of the criminal
record information. If no criminal record information has been
recorded, the Department of Justice shall provide the provider with a
statement of that fact within 15 calendar days of receipt of the
fingerprints. The Department of Justice shall notify the provider of
any subsequent arrests or convictions of the applicant within 30 days
of the arrest or conviction.
SEC. 90. Section 4900 of the Welfare and Institutions Code is
amended to read:
4900. (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 Part 3.2 (commencing
with Section 15590) 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 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.
SEC. 91. Section 4901 of the Welfare and Institutions Code is
amended to read:
4901. (a) The protection and advocacy agency, for purposes of
this division, shall be a private nonprofit corporation and shall
meet all of the requirements of federal law applicable to protection
and advocacy systems, including, but not limited to, the requirement
that it establish a grievance procedure for clients or prospective
clients of the system to ensure that people with disabilities have
full access to services of the system.
(b) State officers and employees, in taking any action relating to
the protection and advocacy agency, shall meet the requirements of
federal law applicable to protection and advocacy systems.
(c) The authority of the protection and advocacy agency set forth
in this division shall not diminish the authority of the protection
and advocacy agency under federal statutes pertaining to the
authority of protection and advocacy systems, or under federal rules
and regulations adopted in implementation of those statutes.
(d) Nothing in this division shall be construed to supplant the
jurisdiction or the responsibilities of adult protective services
programs pursuant to Chapter 11 (commencing with Section 15600), or
Chapter 13 (commencing with Section 15750), of Part 3 of Division 9.
(e) (1) Nothing in this division shall be construed to supplant
the duties or authority of the State Long-Term Care Ombudsman Program
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The protection and advocacy agency shall cooperate with the
Office of the State Long-Term Care Ombudsman when appropriate, as
provided in Section 9717.
(f) (1) Nothing in this division shall be construed to alter or
impact Part 3.2 (commencing with Section 15590) of Division 9,
including the confidentiality requirements of Section 15633 and the
legal responsibility of the protection and advocacy agency to report
elder or adult with a disability abuse or neglect as required by
paragraph (1) of subdivision (b) of Section 15630.
(2) The adult protective services agency shall retain the
responsibility to investigate any report of abuse or neglect in
accordance with Chapter 4 (commencing with Section 15750) of Part 3.2
of Division 9 when the reported abuse or neglect is within the
jurisdiction of the adult protective services agency.
SEC. 92. Section 4903 of the Welfare and Institutions Code is
amended to read:
4903. (a) The protection and advocacy agency shall have access to
the records of any of the following people with disabilities:
(1) Any person who is a client of the agency, or any person who
has requested assistance from the agency, if that person or the agent
designated by that person, or the legal guardian, conservator, or
other legal representative of that person, has authorized the
protection and advocacy agency to have access to the records and
information. If a person with a disability who is able to authorize
the protection and advocacy agency to access his or her records
expressly denies this access after being informed by the protection
and advocacy agency of his or her right to authorize or deny access,
the protection and advocacy agency may not have access to that person'
s records.
(2) Any person, including any individual who cannot be located, to
whom all of the following conditions apply:
(A) The individual, due to his or her mental or physical
condition, is unable to authorize the protection and advocacy agency
to have access to his or her records.
(B) The individual does not have a legal guardian, conservator, or
other legal representative, or the individual's representative is a
public entity, including the state or one of its political
subdivisions.
(C) The protection and advocacy agency has received a complaint
that the individual has been subject to abuse or neglect, or has
determined that probable cause exists to believe that the individual
has been subject to abuse or neglect.
(3) Any person who is deceased, and for whom the protection and
advocacy agency has received a complaint that the individual had been
subjected to abuse or neglect, or for whom the agency has determined
that probable cause exists to believe that the individual had been
subjected to abuse or neglect.
(4) Any person who has a legal guardian, conservator, or other
legal representative with respect to whom a complaint has been
received by the protection and advocacy agency, or with respect to
whom the protection and advocacy agency has determined that probable
cause exists to believe that the person has been subjected to abuse
or neglect, whenever all of the following conditions exist:
(A) The representative has been contacted by the protection and
advocacy agency upon receipt of the representative's name and
address.
(B) The protection and advocacy agency has offered assistance to
the representatives to resolve the situation.
(C) The representative has failed or refused to act on behalf of
the person.
(b) Individual records that shall be available to the protection
and advocacy agency under this section shall include, but not be
limited to, all of the following information and records related to
the investigation, whether written or in another medium, draft or
final, including, but not limited to, handwritten notes, electronic
files, photographs, videotapes, or audiotapes:
(1) Information and records prepared or received in the course of
providing intake, assessment, evaluation, education, training, or
other supportive services, including, but not limited to, medical
records, financial records, monitoring reports, or other reports,
prepared or received by a member of the staff of a facility, program,
or service that is providing care, treatment, or services.
(2) Reports prepared by an agency charged with investigating
reports of incidents of abuse, neglect, injury, or death occurring at
the program, facility, or service while the individual with a
disability is under the care of a member of the staff of a program,
facility, or service, or by or for a program, facility, or service,
that describe any or all of the following:
(A) Abuse, neglect, injury, or death.
(B) The steps taken to investigate the incidents.
(C) Reports and records, including, but not limited to, personnel
records prepared or maintained by the facility, program, or service
in connection with reports of incidents, subject to the following:
(i) If a state statute specifies procedures with respect to
personnel records, the protection and advocacy agency shall follow
those procedures.
(ii) Personnel records shall be protected from disclosure in
compliance with the fundamental right of privacy established pursuant
to Section 1 of Article I of the California Constitution. The
custodian of personnel records shall have a right and a duty to
resist attempts to allow the unauthorized disclosure of personnel
records, and may not waive the privacy rights that are guaranteed
pursuant to Section 1 of Article I of the California Constitution.
(D) Supporting information that was relied upon in creating a
report, including, but not limited to, all information and records
that document interviews with persons who were interviewed, physical
and documentary evidence that was reviewed, or related investigative
findings.
(3) Discharge planning records.
(c) Information in the possession of a program, facility, or
service that must be available to the agency investigating instances
of abuse or neglect pursuant to paragraph (1) of subdivision (a) of
Section 4902, whether written or in another medium, draft or final,
including, but not limited to, handwritten notes, electronic files,
photographs, videotapes, audiotapes, or records, shall include, but
not be limited to, all of the following:
(1) Information in reports prepared by individuals and entities
performing certification or licensure reviews, or by professional
accreditation organizations, as well as related assessments prepared
for a program, facility, or service by its staff, contractors, or
related entities, subject to any other provision of state law
protecting records produced by medical care evaluation or peer review
committees.
(2) Information in professional, performance, building, or other
safety standards, or demographic and statistical information,
relating to the facility.
(d) The authority of the protection and advocacy agency to have
access to records does not supersede any prohibition on discovery
specified in Sections 1157 and 1157.6 of the Evidence Code, nor does
it supersede any prohibition on disclosure subject to the
physician-patient privilege or the psychotherapist-patient privilege.
(e) (1) The protection and advocacy agency shall have access to
records of individuals described in paragraph (1) of subdivision (a)
of Section 4902 and in subdivision (a), and other records that are
relevant to conducting an investigation, under the circumstances
described in those subdivisions, not later than three business days
after the agency makes a written request for the records involved.
(2) The protection and advocacy agency shall have immediate access
to the records, not later than 24 hours after the agency makes a
request, without consent from another party, in a situation in which
treatment, services, supports, or other assistance is provided to an
individual with a disability, if the agency determines there is
probable cause to believe that the health or safety of the individual
is in serious and immediate jeopardy, or in a case of death of an
individual with a disability.
(f) Confidential information kept or obtained by the protection
and advocacy agency shall remain confidential and may not be subject
to disclosure. This subdivision shall not, however, prevent the
protection and advocacy agency from doing any of the following:
(1) Sharing the information with the individual client who is the
subject of the record or report or other document, or with his or her
legally authorized representative, subject to any limitation on
disclosure to recipients of mental health services as provided in
subsection (b) of Section 10806 of Title 42 of the United States
Code.
(2) Issuing a public report of the results of an investigation
that maintains the confidentiality of individual service recipients.
(3) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies that are responsible for facility
licensing or accreditation, employee discipline, employee licensing
or certification suspension or revocation, or criminal prosecution.
(4) Pursuing alternative remedies, including the initiation of
legal action.
(5) Reporting suspected elder or adult with a disability abuse
pursuant to the Elders and Adults with Disabilities Civil Protection
Act (Chapter 2 (commencing with Section 15600) of Part 3.2 of
Division 9).
(g) The protection and advocacy agency shall inform and train
employees as appropriate regarding the confidentiality of client
records.
SEC. 93. Section 5328 of the Welfare and Institutions Code is
amended to read:
5328. All information and records obtained in the course of
providing services under Division 4 (commencing with Section 4000),
Division 4.1 (commencing with Section 4400), Division 4.5 (commencing
with Section 4500), Division 5 (commencing with Section 5000),
Division 6 (commencing with Section 6000), or Division 7 (commencing
with Section 7100), to either voluntary or involuntary recipients of
services shall be confidential. Information and records obtained in
the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons in
the provision of services or appropriate referrals, or in the course
of conservatorship proceedings. The consent of the patient, or his or
her guardian or conservator shall be obtained before information or
records may be disclosed by a professional person employed by a
facility to a professional person not employed by the facility who
does not have the medical or psychological responsibility for the
patient's care.
(b) When the patient, with the approval of the physician, licensed
psychologist, social worker with a master's degree in social work,
or licensed marriage and family therapist, who is in charge of the
patient, designates persons to whom information or records may be
released, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family. Nothing in this subdivision shall be
construed to authorize a licensed marriage and family therapist to
provide services or to be in charge of a patient's care beyond his or
her lawful scope of practice.
(c) To the extent necessary for a recipient to make a claim, or
for a claim to be made on behalf of a recipient for aid, insurance,
or medical assistance to which he or she may be entitled.
(d) If the recipient of services is a minor, ward, or conservatee,
and his or her parent, guardian, guardian ad litem, or conservator
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(e) For research, provided that the Director of Mental Health or
the Director of Developmental Services designates by regulation,
rules for the conduct of research and requires the research to be
first reviewed by the appropriate institutional review board or
boards. The rules shall include, but need not be limited to, the
requirement that all researchers shall sign an oath of
confidentiality as follows:
Date
As a condition of doing research concerning persons who have
received services from ____ (fill in the facility, agency or person),
I, ____, agree to obtain the prior informed consent of such persons
who have received services to the maximum degree possible as
determined by the appropriate institutional review board or boards
for protection of human subjects reviewing my research, and I further
agree not to divulge any information obtained in the course of such
research to unauthorized persons, and not to publish or otherwise
make public any information regarding persons who have received
services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) If the recipient of services who applies for life or
disability insurance designates in writing the insurer to which
records or information may be disclosed.
(j) To the attorney for the patient in any and all proceedings
upon presentation of a release of information signed by the patient,
except that when the patient is unable to sign the release, the staff
of the facility, upon satisfying itself of the identity of the
attorney, and of the fact that the attorney does represent the
interests of the patient, may release all information and records
relating to the patient except that nothing in this article shall be
construed to compel a physician, licensed psychologist, social worker
with a master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(k) Upon written agreement by a person previously confined in or
otherwise treated by a facility, the professional person in charge of
the facility or his or her designee may release any information,
except information that has been given in confidence by members of
the person's family, requested by a probation officer charged with
the evaluation of the person after his or her conviction of a crime
if the professional person in charge of the facility determines that
the information is relevant to the evaluation. The agreement shall
only be operative until sentence is passed on the crime of which the
person was convicted. The confidential information released pursuant
to this subdivision shall be transmitted to the court separately from
the probation report and shall not be placed in the probation
report. The confidential information shall remain confidential except
for purposes of sentencing. After sentencing, the confidential
information shall be sealed.
() Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) To county patients' rights advocates who have been given
knowing voluntary authorization by a client or a guardian ad litem.
The client or guardian ad litem, whoever entered into the agreement,
may revoke the authorization at any time, either in writing or by
oral declaration to an approved advocate.
(n) To a committee established in compliance with Section 4070.
(o) In providing information as described in Section 7325.5.
Nothing in this subdivision shall permit the release of any
information other than that described in Section 7325.5.
(p) To the county mental health director or the director's
designee, or to a law enforcement officer, or to the person
designated by a law enforcement agency, pursuant to Sections 5152.1
and 5250.1.
(q) If the patient gives his or her consent, information
specifically pertaining to the existence of genetically handicapping
conditions, as defined in Section 125135 of the Health and Safety
Code, may be released to qualified professional persons for purposes
of genetic counseling for blood relatives upon request of the blood
relative. For purposes of this subdivision, "qualified professional
persons" means those persons with the qualifications necessary to
carry out the genetic counseling duties under this subdivision as
determined by the genetic disease unit established in the State
Department of Health Services Public Health
under Section 125000 of the Health and Safety Code. If the
patient does not respond or cannot respond to a request for
permission to release information pursuant to this subdivision after
reasonable attempts have been made over a two-week period to get a
response, the information may be released upon request of the blood
relative.
(r) When the patient, in the opinion of his or her
psychotherapist, presents a serious danger of violence to a
reasonably foreseeable victim or victims, then any of the information
or records specified in this section may be released to that person
or persons and to law enforcement agencies as the psychotherapist
determines is needed for the protection of that person or persons.
For purposes of this subdivision, "psychotherapist" means anyone so
defined within Section 1010 of the Evidence Code.
(s) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
(t) (1) To a law enforcement officer who personally lodges with a
facility, as defined in paragraph (2), a warrant of arrest or an
abstract of such a warrant showing that the person sought is wanted
for a serious felony, as defined in Section 1192.7 of the Penal Code,
or a violent felony, as defined in Section 667.5 of the Penal Code.
The information sought and released shall be limited to whether or
not the person named in the arrest warrant is presently confined in
the facility. This paragraph shall be implemented with minimum
disruption to health facility operations and patients, in accordance
with Section 5212. If the law enforcement officer is informed that
the person named in the warrant is confined in the facility, the
officer may not enter the facility to arrest the person without
obtaining a valid search warrant or the permission of staff of the
facility.
(2) For purposes of paragraph (1), a facility means all of the
following:
(A) A state hospital, as defined in Section 4001.
(B) A general acute care hospital, as defined in subdivision (a)
of Section 1250 of the Health and Safety Code, solely with regard to
information pertaining to a mentally disordered person subject to
this section.
(C) An acute psychiatric hospital, as defined in subdivision (b)
of Section 1250 of the Health and Safety Code.
(D) A psychiatric health facility, as described in Section 1250.2
of the Health and Safety Code.
(E) A mental health rehabilitation center, as described in Section
5675.
(F) A skilled nursing facility with a special treatment program
for chronically mentally disordered patients, as described in
Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the
California Code of Regulations.
(u) Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to Section 15610.55,
15753.5, or 15761. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused elder or adult with a disability pursuant to
Chapter 4 (commencing with Section 15750) of Part 3.2 of Division 9.
(v) The amendment of subdivision (d) enacted at the 1970 Regular
Session of the Legislature does not constitute a change in, but is
declaratory of, the preexisting law.
(w) This section shall not be limited by Section 5150.05 or 5332.
(x) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents from any source containing confidential information
protected by this section, and all copies of those records and
documents, within 10 days of the date that the adverse action becomes
final except for the actual records and documents or copies thereof
that are no longer in the possession of the employee or the employee'
s legal representative because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and
documents from any source containing confidential information
protected by this section, and all copies of those records and
documents, within 10 days of the date that the adverse action becomes
final, except for the actual records and documents or copies thereof
that are no longer in the possession of the employee or the employee'
s legal representatives because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that has been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
SEC. 94. Section 5328.5 of the Welfare and Institutions Code is
amended to read:
5328.5. Information and records described in Section 5328 may be
disclosed in communications relating to the prevention,
investigation, or treatment of elder abuse or adult with a disability
abuse pursuant to Chapter 2 (commencing with Section 15600) and
Chapter 4 (commencing with Section 15750), of Part 3.2 of Division 9.
SEC. 94.5. Section 9726 of the Welfare
and Institutions Code is repealed.
9726. (a) The office shall establish a toll-free telephone
hotline, in Sacramento, to receive telephone calls concerning any
crises discovered by any person in a long-term care facility, as
defined in subdivision (b) of Section 9701. The telephone hotline
established under this section shall be operated to include at least
all of the following:
(1) The telephone hotline shall be available 24 hours a day, seven
days a week.
(2) The operator shall respond to a crisis call by contacting the
appropriate office, agency, or individual in the local community in
which the crisis occurred.
(3) The toll-free hotline telephone number shall be posted
conspicuously in either the facility foyer, lobby, residents'
activity room, or other conspicuous location easily accessible to
residents in each licensed facility by the licensee. The office shall
issue, in conjunction with the State Department of Social Services
and the State Department of Health Services, guidelines concerning
the posting of the toll-free number. The posting shall, at a minimum,
include the purpose of the hotline number.
(b) The office shall respond to hotline telephone calls.
(c) The toll-free telephone hotline shall be staffed in a manner
consistent with available resources in the department. The department
may contract for the services of individuals to staff the telephone
hotline. The department shall seek to provide opportunities for older
individuals to be employed to staff the hotline. The State
Department of Health Services and the State Department of Social
Services, and other appropriate departments, shall make available to
the department and the office training and technical assistance as
needed.
SEC. 95. Section 10850 of the Welfare and Institutions Code is
amended to read:
10850. (a) Except as otherwise provided in this section, all
applications and records concerning any individual made or kept by
any public officer or agency in connection with the administration of
any provision of this code relating to any form of public social
services for which grants-in-aid are received by this state from the
United States government shall be confidential, and shall not be open
to examination for any purpose not directly connected with the
administration of that program, or any investigation, prosecution, or
criminal or civil proceeding conducted in connection with the
administration of any such program. The disclosure of any information
that identifies by name or address any applicant for or recipient of
these grants-in-aid to any committee or legislative body is
prohibited, except as provided in subdivision (b).
(b) Except as otherwise provided in this section, no person shall
publish or disclose or permit or cause to be published or disclosed
any list of persons receiving public social services. Any county
welfare department in this state may release lists of applicants for,
or recipients of, public social services, to any other county
welfare department or the State Department of Social Services, and
these lists or any other records shall be released when requested by
any county welfare department or the State Department of Social
Services. These lists or other records shall only be used for
purposes directly connected with the administration of public social
services. Except for those purposes, no person shall publish,
disclose, or use or permit or cause to be published, disclosed, or
used any confidential information pertaining to an applicant or
recipient.
Any county welfare department and the State Department of Social
Services shall provide any governmental entity that is authorized by
law to conduct an audit or similar activity in connection with the
administration of public social services, including any committee or
legislative body so authorized, with access to any public social
service applications and records described in subdivision (a) to the
extent of the authorization. Those committees, legislative bodies and
other entities may only request or use these records for the purpose
of investigating the administration of public social services, and
shall not disclose the identity of any applicant or recipient except
in the case of a criminal or civil proceeding conducted in connection
with the administration of public social services.
However, this section shall not prohibit the furnishing of this
information to other public agencies to the extent required for
verifying eligibility or for other purposes directly connected with
the administration of public social services, or to county
superintendents of schools or superintendents of school districts
only as necessary for the administration of federally assisted
programs providing assistance in cash or in-kind or services directly
to individuals on the basis of need. Any person knowingly and
intentionally violating this subdivision is guilty of a misdemeanor.
Further, in the context of a petition for the appointment of a
conservator for a person who is receiving or has received aid from a
public agency, as indicated above, or in the context of a criminal
prosecution for a violation of Section 368.2, 368.3, 368.4, 368.5, or
368.6 of the Penal Code both of the following shall apply:
(1) An Adult Protective Services employee or Ombudsman may answer
truthfully at any proceeding related to the petition or prosecution,
when asked if he or she is aware of information that he or she
believes is related to the legal mental capacity of that aid
recipient or the need for a conservatorship for that aid recipient.
If the Adult Protective Services employee or Ombudsman states that he
or she is aware of such information, the court may order the Adult
Protective Services employee or Ombudsman to testify about his or her
observations and to disclose all relevant agency records.
(2) The court may order the Adult Protective Services employee or
Ombudsman to testify about his or her observations and to disclose
any relevant agency records if the court has other independent reason
to believe that the Adult Protective Services employee or Ombudsman
has information that would facilitate the resolution of the matter.
(c) The State Department of Social Services may make rules and
regulations governing the custody, use, and preservation of all
records, papers, files, and communications pertaining to the
administration of the laws relating to public social services under
their jurisdiction. The rules and regulations shall be binding on all
departments, officials and employees of the state, or of any
political subdivision of the state and may provide for giving
information to or exchanging information with agencies, public or
political subdivisions of the state, and may provide for giving
information to or exchanging information with agencies, public or
private, that are engaged in planning, providing, or securing social
services for or in behalf of recipients or applicants; and for making
case records available for research purposes, provided that making
these case records available will not result in the disclosure of the
identity of applicants for or recipients of public social services
and will not disclose any personal information in a manner that would
link the information disclosed to the individual to whom it
pertains, unless the department has complied with subdivision (t) of
Section 1798.24 of the Civil Code.
(d) Any person, including every public officer and employee, who
knowingly secures or possesses, other than in the course of official
duty, an official list or a list compiled from official sources,
published or disclosed in violation of this section, of persons who
have applied for or who have been granted any form of public social
services for which state or federal funds are made available to the
counties is guilty of a misdemeanor.
(e) This section shall not be construed to prohibit an employee of
a county welfare department from disclosing confidential information
concerning a public social services applicant or recipient to a
state or local law enforcement agency investigating or gathering
information regarding a criminal act committed in a welfare
department office, a criminal act against any county or state welfare
worker, or any criminal act witnessed by any county or state welfare
worker while involved in the administration of public social
services at any location. Further, this section shall not be
construed to prohibit an employee of a county welfare department from
disclosing confidential information concerning a public social
services applicant or recipient to a state or local law enforcement
agency investigating or gathering information regarding a criminal
act intentionally committed by the applicant or recipient against any
off-duty county or state welfare worker in retaliation for an act
performed in the course of the welfare worker's duty when the person
committing the offense knows or reasonably should know that the
victim is a state or county welfare worker. These criminal acts shall
include only those that are in violation of state or local law.
Disclosure of confidential information pursuant to this subdivision
shall be limited to the applicant's or recipient's name, physical
description, and address.
(f) The provisions of this section shall be operative only to the
extent permitted by federal law and shall not apply to, but exclude,
Chapter 7 (commencing with Section 14000) of this division, entitled
"Basic Health Care", and for which a grant-in-aid is received by the
state under Title XIX of the Social Security Act.
SEC. 96. Section 11325.9 of the Welfare and Institutions Code is
amended to read:
11325.9. (a) The department shall develop three-year pilot
projects in Alameda County, San Bernardino County, and Ventura
County, at the option of each county, to create an integrated and
coordinated case management system for delivery of services to
CalWORKs families who face multiple barriers to employment. This
pilot program shall permit the exchange of information and records
between members of a multidisciplinary services team for the purpose
of coordinating services relevant to the prevention, identification,
and treatment of the family's barriers to employment. Information
shared between members of the multidisciplinary services team shall
be maintained in a manner to ensure maximum protection of the family'
s privacy. Information shall not be shared between the team or
otherwise disclosed, except as otherwise authorized by law, once an
individual and his or her family no longer receive CalWORKs benefits
or services.
(b) For purposes of this section and Sections 11325.91 to
11325.96, inclusive:
(1) "Multidisciplinary service team" or "team" means a team of two
or more persons trained and qualified to provide one or more of the
services listed in paragraph (2) who are assigned the responsibility,
within an integrated welfare system, for identifying the
educational, health, and social service needs of a member of an
assistance unit, and for developing a plan to address those needs.
Team members may include any of the following:
(A) Representatives of public employment services agencies under
contract with the CalWORKs program.
(B) Psychiatrists, psychologists, or other trained counseling
personnel involved in mental health treatment.
(C) Providers of substance abuse treatment.
(D) Medical personnel with sufficient training to provide health
services.
(E) Any public or private school teacher, administrative officer,
supervisor of child welfare and attendance, or certificated public
personnel employee.
(F) Representatives of a domestic violence shelter.
(G) Probation officers.
(H) Social workers with experience or training in child abuse or
abuse of elders or adults with disabilities.
(I) Representatives from public housing agencies.
(J) Other team members may be added if necessary and if approved
by the client if the team member agrees to abide by the
confidentiality requirements in Section 11325.93.
(2) "Integrated welfare system" means programs established by the
state or by the pilot project county governments to provide two or
more of the following services to households in which recipients of
benefits under this chapter reside:
(A) Child welfare services.
(B) Employment services.
(C) Health care services.
(D) Mental health services.
(E) Substance abuse prevention and treatment.
(F) Child abuse prevention, identification, and treatment.
(G) Elder or adult with a disability abuse prevention,
identification, and treatment.
(H) Public housing services.
(I) Domestic violence counseling services.
(J) Juvenile probation services. However, representatives of
juvenile probation may provide information to other team members, but
may not receive information, records, or copies of records, from
other team members.
(K) Educational services for children and adults.
(L) Nutrition services.
(M) Child care and development services.
(N) Learning disability evaluation.
(3) "Targeted population" means long-term welfare-dependent
families with multiple barriers to employment, including, but not
limited to, substance abuse, mental illness, child abuse and neglect,
and domestic violence.
SEC. 97. Section 12305.81 of the Welfare and Institutions Code is
amended to read:
12305.81. (a) Notwithstanding any other provision of law, a
person shall not be eligible to provide or receive payment for
providing supportive services for 10 years following a conviction
for, or incarceration following a conviction for, fraud against a
government health care or supportive services program, including
Medicare, Medicaid, or services provided under Title V, Title XX, or
Title XXI of the federal Social Security Act or a violation of
subdivision (a) of Section 273a of the Penal Code, or Section 368.2,
368.3, 368.4, 368.5, or 368.6 of the Penal Code, or similar
violations in another jurisdiction. The department and the State
Department of Health Services Public Health
shall develop a provider enrollment form that each person
seeking to provide supportive services shall complete, sign under
penalty of perjury, and submit to the county. The form shall contain
statements to the following effect:
(1) A person who, in the last 10 years, has been convicted for, or
incarcerated following conviction for, fraud against a government
health care or supportive services program is not eligible to be
enrolled as a provider or to receive payment for providing supportive
services.
(2) An individual who, in the last 10 years, has been convicted
for, or incarcerated following conviction for, a violation of
subdivision (a) of Section 273a of the Penal Code or Section 368.2,
368.3, 368.4, 368.5, or 368.6 of the Penal Code, or similar
violations in another jurisdiction, is not eligible to be enrolled as
a provider or to receive payment for providing supportive services.
(3) A statement declaring that the person has not, in the last 10
years, been convicted or incarcerated following conviction for a
crime involving fraud against a government health care or supportive
services program.
(4) A statement declaring that he or she has not, in the last 10
years, been convicted for, or incarcerated following conviction for,
a violation of subdivision (a) of Section 273a of the Penal Code or
Section 368.2, 368.3, 368.4, 368.5, or 368.6 of the Penal Code, or
similar violations in another jurisdiction.
(5) The person agrees to reimburse the state for any overpayment
paid to the person as determined in accordance with Section 12305.83,
and that the amount of any overpayment, individually or in the
aggregate, may be deducted from any future warrant to that person for
services provided to any recipient of supportive services, as
authorized in Section 12305.83.
(b) The department shall include the text of subdivision (a) of
Section 273a of the Penal Code and Section 368.2, 368.3, 368.4,
368.5, or 368.6 of the Penal Code on the provider enrollment form.
(c) A public authority or nonprofit consortium that is notified by
the department or the State Department of Health Services
Public Health that a supportive services
provider is ineligible to receive payments under this chapter or
under Medi-Cal law shall exclude that provider from its registry.
(d) A public authority or nonprofit consortium that determines
that a registry provider is not eligible to provide supportive
services based on the requirements of subdivision (a) shall report
that finding to the department.
SEC. 98. Section 14100.2 of the Welfare and Institutions Code is
amended to read:
14100.2. (a) All types of information, whether written or oral,
concerning a person, made or kept by any public officer or agency in
connection with the administration of any provision of this chapter,
Chapter 8 (commencing with Section 14200), or Chapter 8.7 (commencing
with Section 14520) and for which a grant-in-aid is received by this
state from the United States government pursuant to Title XIX of the
Social Security Act shall be confidential, and shall not be open to
examination other than for purposes directly connected with the
administration of the Medi-Cal program. However, in the context of a
petition for the appointment of a conservator for a person with
respect to whom this information is made or kept, and in the context
of a criminal prosecution for a violation of Section 368.2, 368.3,
368.4, 368.5, or 368.6 of the Penal Code with respect to such a
person, all of the following shall apply:
A public officer or employee of any such agency may answer
truthfully, at any proceeding related to the petition or prosecution,
when asked if he or she is aware of information that he or she
believes is related to the legal mental capacity of that aid
recipient or the need for a conservatorship for that aid recipient.
If the officer or employee states that he or she is aware of this
information, the court may order the officer or employee to testify
about his or her observations and to disclose any relevant agency
records if the court has an other independent reason to believe that
the officer or employee has information that would facilitate the
resolution of the matter.
(b) Except as provided in this section and to the extent permitted
by federal law or regulation all information about applicants and
recipients as provided for in subdivision (a) to be safeguarded
includes, but is not limited to, names and addresses, medical
services provided, social and economic conditions or circumstances,
agency evaluation of personal information, and medical data,
including diagnosis and past history of disease or disability.
(c) Purposes directly connected with the administration of the
Medi-Cal program, Chapter 8 (commencing with Section 14200), or
Chapter 8.7 (commencing with Section 14520) encompass those
administrative activities and responsibilities in which the State
Department of Health Care Services Public
Health and its agents are required to engage to insure
effective program operations. These activities include, but are not
limited to: establishing eligibility and methods of reimbursement;
determining the amount of medical assistance; providing services for
recipients; conducting or assisting an investigation, prosecution, or
civil or criminal proceeding related to the administration of the
Medi-Cal program; and conducting or assisting a legislative
investigation or audit related to the administration of the Medi-Cal
program.
(d) Any officer, agent, or employee of the State Department of
Health Care Services Public Health or
of any public agency shall provide the Joint Legislative Audit
Committee and the State Auditor with any and all the information
described in subdivision (b) within a reasonable period of time as
determined by the committee in consultation with the State Department
of Health Care Services Public Health
, after receipt of a request from the committee approved by a
majority of the members of the committee. The Joint Legislative Audit
Committee and the State Auditor may use that information only for
the purpose of investigating or auditing the administration of the
Medi-Cal program, Chapter 8 (commencing with Section 14200), or
Chapter 8.7 (commencing with Section 14520), and shall not use that
information for commercial or political purposes. In any case where
disclosure of information is authorized by this section, the Joint
Legislative Audit Committee or the State Auditor shall not disclose
the identity of any applicant or recipient, except in the case of a
criminal or civil proceeding conducted in connection with the
administration of the Medi-Cal program.
(e) The access to information provided in subdivision (d) shall be
permitted only to the extent and under the conditions provided by
federal law and regulations governing the release of such
information.
(f) The State Department of Health Care Services
Public Health may make rules and regulations
governing the custody, use and preservation of all records, papers,
files, and communications pertaining to the administration of the
laws relating to the Medi-Cal program, Chapter 8 (commencing with
Section 14200), or Chapter 8.7 (commencing with Section 14520). The
rules and regulations shall be binding on all departments, officials,
and employees of the state, or of any political subdivision of the
state and may provide for giving information to or exchanging
information with agencies, public or political subdivisions of the
state, and may provide for giving information to or exchanging
information with agencies, public or private, which are engaged in
planning, providing or securing such services for or in behalf of
recipients or applicants; and for making case records available for
research purposes, provided, that the research will not result in the
disclosure of the identity of applicants for or recipients of those
services.
(g) Upon request, the department shall release to the negotiator
established pursuant to Article 2.6 (commencing with Section 14081)
all computer tapes and any modifications thereto, including paid
claims, connected with the administration of the Medi-Cal program
which are in the possession or under the control of the department,
including tapes prepared prior to the effective date of this section.
To ensure compliance with federal law and regulations, the
department shall make the minimum necessary modifications to its
computer tapes prior to releasing the tapes to the negotiator in
order to assure the confidentiality of the identity of all applicants
for, or recipients of, those services. The department shall not make
any modifications to paid claims tapes that affect information
regarding beneficiaries' aid categories or counties of origin.
(h) Any person who knowingly releases or possesses confidential
information concerning persons who have applied for or who have been
granted any form of Medi-Cal benefits or benefits under Chapter 8
(commencing with Section 14200) or Chapter 8.7 (commencing with
Section 14520) for which state or federal funds are made available in
violation of this section is guilty of a misdemeanor.
SEC. 99. Part 3.2 (commencing with Section 15590) is added to
Division 9 of the Welfare and Institutions Code, immediately
following Section 15520, to read:
PART 3.2. Crimes Against Elders and People with Disabilities
CHAPTER 1. GENERAL PROVISIONS
15590. (a) The Office of Emergency Services is the lead agency
for implementation of this chapter and for providing leadership and
coordination to state agencies with responsibilities to protect
elders and people with disabilities from crime, abuse, and
neglect abuse, neglect, and other crimes and to
assist them when they become crime victims. Subject to the
availability of adequate funding, the lead agency shall maintain
contact with the appropriate federal, state, and local agencies and
with the subject-matter experts listed in Section 15592 to assist it
in carrying out its responsibilities.
(b) The Office of Emergency Services is the successor to the
former Crime Victims with Disabilities Initiative of the State
Department of Mental Health and the former "It's a Crime" public
information program of the Department of Justice. The State
Department of Mental Health and the Department of Justice shall
transfer to the Office of Emergency Services any records and
other materials produced by
those former programs that the Office of Emergency Services requests.
15591. (a) There is in the Office of Emergency Services a Think
Tank on Victims of Crime and Abuse with
Disabilities program.
(b) The Director of the Office of Emergency Services shall select
participants in the program, including, but not limited to,
participants selected from the list of subject-matter experts in
Section 15592, and shall select a chair of the program from among the
participants.
(c) The program is the successor to the former Think Tank on
Abuse Victims with Disabilities program of the State Council on
Development Disabilities. The council shall transfer to the program
any records and other materials produced by that former program that
the Office of Emergency Services requests.
(d) Upon the availability of adequate federal funding, and in
consultation with the subject-matter experts, the program shall
study, make recommendations to the agency in which the program is
located and other public agencies concerning, and raise public
awareness of the problems of abuse and other crimes against people
with disabilities.
15592. As used in this part:
(a) "Civil neglect" means neglect that does not
constitute a criminal act or omission.
(b) "Criminal neglect" means neglect that constitutes a criminal
act or omission.
(c) "Crimes against elders and individuals with
disabilities" includes, but is not limited to, elder and adult
with disability abuse, criminal neglect, and violations of
Section 368.2 or 368.3 of the Penal Code and Section 15630
.
(b)
(d) "Subject-matter experts" includes, but is not
limited to, the following, or their successor organizations, the
Arc of California; Associated Programs of the University of
Southern California; Association of Regional Center Agencies;
California Coalition Against Sexual Assault; California
Consortium of Child Abuse Councils; California County Welfare
Directors, District Attorneys, Police Chiefs, and Sheriffs
Associations; California Foundation for Independent Living
Centers; California Partnership to End Domestic Violence;
Center for Independent Living in Fresno; Community Access
Center in Riverside; Crime Autism Center for
Excellence at California State University, Sacramento; Crime
Victims with Disabilities Think Tank; Departments of Aging,
Developmental Services, Justice, Mental Health, Social Services,
and Corrections and Rehabilitation; Easter Seal Superior
California in Sacramento; Educational Psychology Department
of the University of Alberta, Canada; Los Angeles City
Department on Disability; National Alliance for the Mentally Ill;
Office of Emergency Services; Project REACH; Senate Office of
Research; Sociology Departments of the University of California at
Berkeley, Davis, and Irvine and the University of Toledo, Ohio; State
Council on Developmental Disabilities; State Office of Child Abuse
Prevention; Tarjan Center of the University of California at Los
Angeles; Ventura and Tulare County District Attorneys'
Offices; University Centers for Excellence in Developmental
Disabilities at the University of California at Davis and Los
Angeles and the University of Southern California; and the protection
and advocacy agency that the Governor designates pursuant to Section
4900.
15593. (a) The Legislature finds and declares as follows:
(1) Crimes against victims with disabilities , including
abuse and criminal neglect, occur in the jurisdiction of every
law enforcement agency.
(2) Every law enforcement officer encounters persons with
disabilities who may be particularly vulnerable to crime and who have
a disproportionately high likelihood of becoming victims.
(3) Persons with disabilities in population groups, including, but
not limited to, the following often become victims of serious crime
including domestic violence and sexual assault:
(A) Children.
(B) Elders.
(C) Homeless persons.
(D) Inmates of prisons, jails, and other incarceration facilities.
(E) Residents of public and private treatment and care facilities
of all kinds.
(4) Many crimes against victims with disabilities are motivated in
whole or in part by preexisting negative attitudes toward the
victims' disabilities, including hostility to persons who arouse
guilt, fear of or revulsion to persons whose visible traits are
disturbing to others, a perception that persons with disabilities are
inferior or deserving of victimization, belief that persons with
particular disabilities are weak and therefore easy targets, and
resentment of those who need and increasingly demand alternative
physical and social accommodations. Law enforcement agencies must
investigate these crimes as hate crimes and report them to the
Department of Justice as Section 13023 of the Penal Code requires.
(5) Preventing, recognizing, and responding to crimes against
victims with disabilities often require law enforcement skills beyond
those needed for other crimes. Investigating and successfully
prosecuting crimes against victims with disabilities often require
officers specializing in investigating these crimes.
(b) It is the intent of the Legislature to strongly encourage each
law enforcement agency, including those with jurisdictions covering
treatment or local incarceration facilities, to do each of the
following:
(1) Establish or designate a unit to do each of the following:
(A) Investigate crimes against victims with disabilities, except
to the extent that those duties may be assigned to other specialized
units that investigate crimes against children, elders, or homeless
persons, domestic violence, hate crimes, sexual assault, or other
categories of crime that include significant numbers of crimes
against victims with disabilities.
(B) Assist or consult other officers in cases involving victims,
suspects, or witnesses with disabilities.
(2) Provide advanced officer training concerning crimes against
victims with disabilities to each officer in the unit created or
designated under paragraph (1) and each officer in any other
specialized investigation unit described in subparagraph (A) of
paragraph (1).
(3) Provide the Commission on Peace Officer Standards and Training
telecourse "Crime Victims with Disabilities" to, at a minimum, every
officer in the law enforcement agency who has not recently taken the
course required by Section 13515.
(c) By February 1, 2009, the Commission on Peace Officer Standards
and Training shall inform law enforcement agencies of the importance
and urgency that the law now attaches to dealing with crimes against
victims with disabilities, and shall inform them of each of the
following:
(A) Subdivisions (a) and (b).
(B) Subdivision (d) of Section 13516 of the Penal Code concerning
units to investigate sexual assault.
(C) Subdivision (b) of Section 13519.64 of the Penal Code
concerning the commission telecourse "Law Enforcement Response to
Homelessness Update."
(D) Subdivision (b) and subparagraph (I) of paragraph (2) of
subdivision (d) of Section 836 concerning arrests.
(D) Subparagraph (I) of paragraph (2) of subdivision (d) of
Section 836 of the Penal Code concerning arrests.
(E) Paragraph (2) of subdivision (b) of Section
13516.5 of the Penal Code, concerning state law enforcement agencies.
(F) Subdivision (c) of Section 15630 and Section 15640 concerning
the cross-reporting requirements of local law enforcement agencies.
(G) The inquiry that the commission will make later in
2009 pursuant to subdivision (d).
(d) By August 1, 2009, the Commission on Peace Officer Standards
and Training shall inquire with law enforcement agencies concerning:
(A) The law enforcement agencies' compliance with subdivision (b)
and with subdivision (d) of Section 13516 and subdivision (b) of
Section 13519.64 of the Penal Code.
(B) Any other information the commission considers necessary to
carry out the requirements of the act enacted during the 2007-08
Regular Session that added this section.
SEC. 100. The heading of Chapter 11 (commencing with Section
15600) of Part 3 of Division 9 of the Welfare and Institutions Code
is amended and renumbered to read:
CHAPTER 2. ELDERS AND ADULTS WITH DISABILITIES CIVIL
PROTECTION ACT
SEC. 101. Section 15600 of the Welfare and
Institutions Code is amended to read:
15600. (B) Any other information the commission considers
necessary to carry out the requirements of the act enacted during the
2007-08 Regular Session that added this section.
(a) The Legislature recognizes that elders and adults with
disabilities may be subjected to crime, abuse, neglect, or
abandonment and that this state has a responsibility to protect these
persons.
(b) The Legislature further recognizes that a significant number
of these persons are elderly. The Legislature desires to direct
special attention to the needs and problems of elderly persons,
recognizing that these persons constitute a significant and
identifiable segment of the population and that they are more subject
to risks of abuse, neglect, and abandonment.
(c) The Legislature further recognizes that a significant number
of these persons have developmental disabilities and that mental and
verbal limitations often leave them vulnerable to abuse and incapable
of asking for help and protection.
(d) The Legislature recognizes that most elders and adults with
disabilities who are at the greatest risk of abuse, neglect, or
abandonment by their families or caretakers suffer physical
impairments and other poor health that place them in a dependent and
vulnerable position.
(e) The Legislature further recognizes that factors which
contribute to abuse, neglect, or abandonment of elders and adults
with disabilities are economic instability of the family, resentment
of caretaker responsibilities, stress on the caretaker, and abuse by
the caretaker of drugs or alcohol.
(f) The Legislature declares that this state shall foster and
promote community services for the economic, social, and personal
well-being of its citizens in order to protect those persons
described in this section.
(g) The Legislature further declares that uniform state
guidelines, which specify when county adult protective service
agencies are to investigate allegations of abuse of elders and adults
with disabilities and the appropriate role of local law enforcement
is necessary in order to ensure that a minimum level of protection is
provided to elders and adults with disabilities in each county.
(h) The Legislature further finds and declares that infirm elderly
persons and adults with disabilities are a disadvantaged class, that
cases of abuse of these persons are seldom prosecuted as criminal
matters, and few civil cases are brought in connection with this
abuse due to problems of proof, court delays, and the lack of
incentives to prosecute these suits.
(i) The Legislature further finds and declares that reports of
crimes should be investigated by peace officers with training
appropriate to the crimes.
(j) Therefore, it is the intent of the Legislature in enacting
this chapter to provide that adult protective services agencies,
local long-term care ombudsman programs, and local law enforcement
agencies shall receive referrals or complaints from public or private
agencies, from any mandated reporter submitting reports pursuant to
Section 15630, or from any other source having reasonable cause to
know that the welfare of an elder or an adult with a disability is
endangered, and shall take any actions considered necessary to
protect the elder or adult with a disability and correct the
situation and ensure the individual's safety.
(k) It is the further intent of the Legislature in adding Article
8.5 (commencing with Section 15657) to this chapter to enable
interested persons to engage attorneys to take up the cause of abused
elderly persons and adults with disabilities.
SEC. 101. Section 15600 of the Welfare
and Institutions Code is amended to read:
15600. (a) The Legislature recognizes that abuse and
criminal neglect are crimes that elders and dependent
adults with disabilities may be subjected to
crime, abuse, neglect, or abandonment and that this state
has a responsibility to protect these persons.
(b) The Legislature further recognizes that a significant number
of these persons are elderly. The Legislature desires to direct
special attention to the needs and problems of elderly persons,
recognizing that these persons constitute a significant and
identifiable segment of the population and that they are more subject
to risks of abuse, neglect, and abandonment.
(c) The Legislature further recognizes that a significant number
of these persons have developmental disabilities and that mental and
verbal limitations often leave them vulnerable to abuse and incapable
of asking for help and protection.
(d) The Legislature recognizes that most elders and
dependent adults with disabilities who are at
the greatest risk of abuse, neglect, or abandonment by their families
or caretakers suffer physical impairments and other poor health that
place them in a dependent and vulnerable position.
(e) The Legislature further recognizes that factors which
contribute to abuse, neglect, or abandonment of elders and
dependent adults with disabilities are economic
instability of the family, resentment of caretaker responsibilities,
stress on the caretaker, and abuse by the caretaker of drugs or
alcohol.
(f) The Legislature declares that this state shall foster and
promote community services for the economic, social, and personal
well-being of its citizens in order to protect those persons
described in this section.
(g) The Legislature further declares that uniform state
guidelines, which specify when county adult protective service
agencies are to investigate allegations of abuse of elders and
dependent adults with disabilities and
the appropriate role of local law enforcement is necessary in order
to ensure that a minimum level of protection is provided to elders
and dependent adults with disabilities
in each county.
(h) The Legislature further finds and declares that infirm elderly
persons and dependent adults with
disabilities are a disadvantaged class, that cases of abuse of
these persons are seldom prosecuted as criminal matters, and few
civil cases are brought in connection with this abuse due to problems
of proof, court delays, and the lack of incentives to prosecute
these suits.
(i) The Legislature further finds and declares that reports of
crimes should be investigated by peace officers with training
appropriate to the crimes.
(i) Therefore, it is the intent of the Legislature in enacting
this chapter to provide that adult protective services agencies,
local long-term care ombudsman programs, and local law enforcement
agencies shall receive referrals or complaints from public or private
(j) It is the intent of the Legislature
that local law enforcement agencies receive complaints and reports
of crimes, and that adult protective services agencies receive
complaints and reports of civil neglect, from public and private
agencies, from any mandated reporter submitting reports
pursuant to Section 15630, or from any other source having reasonable
cause to know that the welfare of an elder or dependent
an adult with a disability is
endangered, and shall take any actions considered necessary to
protect the elder or dependent adult with a
disability and correct the situation and ensure the individual'
s safety.
(j)
(k) It is the further intent of the Legislature in
adding Article 8.5 (commencing with Section 15657) to this chapter to
enable interested persons to engage attorneys to take up the cause
of abused elderly persons and dependent adults
with disabilities .
SEC. 102. Section 15601 of the Welfare and Institutions Code is
amended to read:
15601. The purposes of this act are to:
(a) Require health practitioners, care custodians, clergy members,
and employees of county adult protective services agencies and local
law enforcement agencies to report known or suspected cases of abuse
of elders and adults with disabilities and to encourage community
members in general to do so.
(b) Collect information on the numbers of abuse victims,
circumstances surrounding the act of abuse and neglect ,
and other data which will aid the state in establishing adequate
services to aid all victims of abuse and neglect in a
timely, compassionate manner.
(c) Provide for protection under the law for all those persons who
report suspected cases of abuse and neglect , provided
that the report is not made with malicious intent.
SEC. 103. Section 15610.05 of the Welfare and Institutions Code is
amended to read:
15610.05. "Abandonment" means the desertion or willful forsaking
of an elder or an adult with a disability by anyone having care or
custody of that person under circumstances in which a reasonable
person would continue to provide care and custody.
SEC. 104. Section 15610.06 of the Welfare and Institutions Code is
amended to read:
15610.06. "Abduction" means the removal from this state and the
restraint from returning to this state, or the restraint from
returning to this state, of any elder or adult with a disability who
does not have the capacity to consent to the removal from this state
and the restraint from returning to this state, or the restraint from
returning to this state, as well as the removal from this state or
the restraint from returning to this state, of any conservatee
without the consent of the conservator or the court.
SEC. 105. Section 15610.07 of the Welfare and Institutions Code is
amended to read:
15610.07. "Abuse of an elder or an adult with a disability" means
either of the following:
(a) Physical abuse, neglect, financial abuse,
abandonment, isolation, abduction, or other treatment with resulting
physical harm or pain or mental suffering.
(b) The deprivation by a care custodian of goods or services that
are necessary to avoid physical harm or mental suffering.
SEC. 106. Section 15610.10 of the Welfare and Institutions Code is
amended to read:
15610.10. "Adult protective services" means those preventive and
remedial activities performed on behalf of elders and adults with
disabilities who are unable to protect their own interests, harmed or
threatened with harm, caused physical or mental injury due to the
action or inaction of another person or their own action as a result
of ignorance, illiteracy, incompetence, mental limitation, substance
abuse, or poor health, lacking in adequate food, shelter, or
clothing, exploited of their income and resources, or deprived of
entitlement due them.
SEC. 107. Section 15610.13 of the Welfare and Institutions Code is
amended to read:
15610.13. "Adult protective services agency" means a county
welfare department, except persons who do not work directly with
elders or adults with disabilities as part of their official duties,
including members of support staff and maintenance staff.
SEC. 108. Section 15610.17 of the Welfare and Institutions Code is
amended to read:
15610.17. "Care custodian" means an administrator or an employee
of any of the following public or private facilities or agencies, or
persons providing care or services for elders or adults with
disabilities, including members of the support staff and maintenance
staff:
(a) Twenty-four-hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(b) Clinics.
(c) Home health agencies.
(d) Agencies providing publicly funded in-home supportive
services, nutrition services, or other home and community-based
support services.
(e) Adult day health care centers and adult day care.
(f) Secondary schools that serve 18- to 22-year-old adults with
disabilities and postsecondary educational institutions that serve
adults with disabilities or elders.
(g) Independent living centers.
(h) Camps.
(i) Alzheimer's Disease day care resource centers.
(j) Community care facilities, as defined in Section 1502 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(k) Respite care facilities.
() Foster homes.
(m) Vocational rehabilitation facilities and work activity
centers.
(n) Designated area agencies on aging.
(o) Regional centers for persons with developmental disabilities.
(p) State Department of Social Services and State Department of
Health Services Public Health licensing
divisions.
(q) County welfare departments.
(r) Offices of patients' rights advocates and clients' rights
advocates, including attorneys.
(s) The office of the long-term care ombudsman.
(t) Offices of public conservators, public guardians, and court
investigators.
(u) Any protection or advocacy agency or entity that is designated
by the Governor to fulfill the requirements and assurances of the
following:
(1) 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, for protection and
advocacy of the rights of persons with developmental disabilities.
(2) The Protection and Advocacy for the Mentally Ill Individuals
Act of 1986, as amended, contained in Chapter 114 (commencing with
Section 10801) of Title 42 of the United States Code, for the
protection and advocacy of the rights of persons with mental illness.
(v) Humane societies and animal control agencies.
(w) Fire departments.
(x) Offices of environmental health and building code enforcement.
(y) Any other protective, public, sectarian, mental health, or
private assistance or advocacy agency or person providing health
services or social services to elders or adults with disabilities.
SEC. 109. Section 15610.19 of the Welfare and Institutions Code is
amended to read:
15610.19. "Clergy member" means a priest, imam, minister, rabbi,
religious practitioner, or similar functionary of a church, gurdwara,
mandir, mosque, synagogue, temple, or other recognized religious
denomination or organization. "Clergy member" does not include unpaid
volunteers whose principal occupation or vocation does not involve
active or ordained ministry in a religious denomination or
organization, and who periodically visit elders or adults with
disabilities on behalf of that religious denomination or
organization.
SEC. 110. Section 15610.23 of the Welfare and Institutions Code is
amended to read:
15610.23. (a) "Adult with a disability" has the same meaning as
in Section 368.1 of the Penal Code.
(b) "Disability" has the same meaning as in Section 368.1 of the
Penal Code.
SEC. 111. Section 15610.30 of the Welfare and Institutions Code is
amended to read:
15610.30. (a) "Financial abuse" of an elder or an adult with a
disability occurs when a person or entity does any of the following:
(1) Takes, secretes, appropriates, or retains real or personal
property of an elder or adult with a disability to a wrongful use or
with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, or retaining real
or personal property of an elder or an adult with a disability to a
wrongful use or with intent to defraud, or both.
(b) A person or entity shall be deemed to have taken, secreted,
appropriated, or retained property for a wrongful use if, among other
things, the person or entity takes, secretes, appropriates or
retains possession of property in bad faith.
(1) A person or entity shall be deemed to have acted in bad faith
if the person or entity knew or should have known that the elder or
adult with a disability had the right to have the property
transferred or made readily available to the elder or adult with a
disability or to his or her representative.
(2) For purposes of this section, a person or entity should have
known of a right specified in paragraph (1) if, on the basis of the
information received by the person or entity or the person or entity'
s authorized third party, or both, it is obvious to a reasonable
person that the elder or adult with a disability has a right
specified in paragraph (1).
(c) For purposes of this section, "representative" means a person
or entity that is either of the following:
(1) A conservator, trustee, or other representative of the estate
of an elder or an adult with a disability.
(2) An attorney-in-fact of an elder or an adult with a disability
who acts within the authority of the power of attorney.
SEC. 112. Section 15610.37 of the Welfare and Institutions Code is
amended to read:
15610.37. "Health practitioner" means a physician and surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, licensed clinical
social worker or associate clinical social worker, marriage, family,
and child counselor, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, any emergency medical technician I or II,
paramedic, or person certified pursuant to Division 2.5 (commencing
with Section 1797) of the Health and Safety Code, a psychological
assistant registered pursuant to Section 2913 of the Business and
Professions Code, a marriage, family, and child counselor trainee, as
defined in subdivision (c) of Section 4980.03 of the Business and
Professions Code, or an unlicensed marriage, family, and child
counselor intern registered under Section 4980.44 of the Business and
Professions Code, state or county public health
or social service employee who treats an elder
or an adult with a disability for any condition, or a coroner.
SEC. 113. Section 15610.39 of the Welfare and Institutions Code is
amended to read:
15610.39. "Imminent danger" means a substantial probability that
an elder or an adult with a disability is in imminent or immediate
risk of death or serious physical harm, through either his or her own
action or inaction, or as a result of the action or inaction of
another person.
SEC. 114. Section 15610.40 of the Welfare and Institutions Code is
amended to read:
15610.40. "Investigation" means that activity undertaken to
determine the validity of a report of elder or adult with a
disability abuse.
SEC. 115. Section 15610.43 of the Welfare and Institutions Code is
amended to read:
15610.43. (a) "Isolation" means any of the following:
(1) Acts intentionally committed for the purpose of preventing,
and that do serve to prevent, an elder or an adult with a disability
from receiving his or her mail or telephone calls.
(2) Telling a caller or prospective visitor that an elder or an
adult with a disability is not present, or does not wish to talk with
the caller, or does not wish to meet with the visitor where the
statement is false, is contrary to the express wishes of the elder or
the adult with a disability, whether he or she is competent or not,
and is made for the purpose of preventing the elder or adult with a
disability from having contact with family, friends, or concerned
persons.
(3) False imprisonment, as defined in Section 236 of the Penal
Code.
(4) Physical restraint of an elder or an adult with a disability,
for the purpose of preventing the elder or adult with a disability
from meeting with visitors.
(b) The acts set forth in subdivision (a) shall be subject to a
rebuttable presumption that they do not constitute isolation if they
are performed pursuant to the instructions of a physician and surgeon
licensed to practice medicine in the state, who is caring for the
elder or adult with a disability at the time the instructions are
given, and who gives the instructions as part of his or her medical
care.
(c) The acts set forth in subdivision (a) shall not constitute
isolation if they are performed in response to a reasonably perceived
threat of danger to property or physical safety.
SEC. 116. Section 15610.45 of the Welfare and Institutions Code is
amended to read:
15610.45. "Local law enforcement agency" means a city police or
county sheriff's department, or a county probation department, except
persons who do not work directly with elders or adults with
disabilities as part of their official duties, including members of
support staff and maintenance staff.
SEC. 117. Section 15610.53 of the Welfare and Institutions Code is
amended to read:
15610.53. "Mental suffering" means fear, agitation, confusion,
severe depression, or other forms of serious emotional distress that
is brought about by forms of intimidating behavior, threats,
harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten,
or cause severe depression or serious emotional distress of the elder
or adult with a disability.
SEC. 118. Section 15610.55 of the Welfare and Institutions Code is
amended to read:
15610.55. (a) "Multidisciplinary personnel team" means any team
of two or more persons who are trained in the prevention,
identification, and treatment of abuse of elders or adults with
disabilities and who are qualified to provide a broad range of
services related to abuse of elders or adults with disabilities.
(b) A multidisciplinary personnel team may include, but is not
limited to, all of the following:
(1) Psychiatrists, psychologists, or other trained counseling
personnel.
(2) Police officers or other law enforcement agents.
(3) Medical personnel with sufficient training to provide health
services.
(4) Social workers with experience or training in prevention of
abuse of elders or adults with disabilities.
(5) Public guardians.
(6) The local long-term care ombudsman.
SEC. 119. Section 15610.57 of the Welfare and Institutions Code is
amended to read:
15610.57. (a) "Neglect" means either of the following:
(1) The negligent failure of any person having the care or custody
of an elder or an adult with a disability to exercise that degree of
care that a reasonable person in a like position would exercise.
(2) The negligent failure of an elder or an adult with a
disability to exercise that degree of self care that a reasonable
person in a like position would exercise.
(b) Neglect includes, but is not limited to, all of the following:
(1) Failure to assist in personal hygiene, or in the provision of
food, clothing, or shelter.
(2) Failure to provide medical care for physical and mental health
needs. No person shall be deemed neglected or abused for the sole
reason that he or she voluntarily relies on treatment by spiritual
means through prayer alone in lieu of medical treatment.
(3) Failure to protect from health and safety hazards.
(4) Failure to prevent malnutrition or dehydration.
(5) Failure of an elder or an adult with a disability to satisfy
the needs specified in paragraphs (1) to (4), inclusive, for himself
or herself as a result of poor cognitive functioning, mental
limitation, substance abuse, or chronic poor health.
SEC. 120. Section 15610.63 of the Welfare and Institutions Code is
amended to read:
15610.63. "Physical abuse" means any of the following:
(a) Assault, as defined in Section 240 of the Penal Code.
(b) Battery, as defined in Section 242 of the Penal Code.
(c) Assault with a deadly weapon or force likely to produce great
bodily injury, as defined in Section 245 of the Penal Code.
(d) Unreasonable physical constraint, or prolonged or continual
deprivation of food or water.
(e) Sexual assault, that means any of the following:
(1) Sexual battery, as defined in Section 243.4 of the Penal Code.
(2) Rape, as defined in Section 261 of the Penal Code.
(3) Rape in concert, as described in Section 264.1 of the Penal
Code.
(4) Spousal rape, as defined in Section 262 of the Penal Code.
(5) Incest, as defined in Section 285 of the Penal Code.
(6) Sodomy, as defined in Section 286 of the Penal Code.
(7) Oral copulation, as defined in Section 288a of the Penal Code.
(8) Sexual penetration, as defined in Section 289 of the Penal
Code.
(9) Lewd or lascivious acts as defined in paragraph (2) of
subdivision (b) of Section 288 of the Penal Code.
(f) Use of a physical or chemical restraint or psychotropic
medication under any of the following conditions:
(1) For punishment.
(2) For a period beyond that for which the medication was ordered
pursuant to the instructions of a physician and surgeon licensed in
the State of California, who is providing medical care to the elder
or adult with a disability at the time the instructions are given.
(3) For any purpose not authorized by the physician and surgeon.
SEC. 121. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or an adult with a
disability, whether or not he or she receives compensation,
including administrators, supervisors, and any licensed staff of a
public or private facility that provides care or services for elders
or adults with disabilities, or any elder or adult with a disability
care custodian, health practitioner, clergy member, or employee of a
county adult protective services agency or a local law enforcement
agency, is a mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect, or is told by an elder or an adult with a
disability that he or she has experienced behavior, including an act
or omission, constituting physical abuse, as defined in Section
15610.63 of the Welfare and Institutions Code, abandonment,
abduction, isolation, financial abuse, or neglect, or reasonably
suspects that abuse, shall report the known or suspected instance of
abuse by telephone immediately or as soon as practicably possible,
and by written report sent within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
(A) The mandated reporter shall report crimes including abuse or
criminal neglect to the city police department, county sheriff's
department, or federal or tribal law enforcement agency or
correctional or penal agency with jurisdiction.
(B) The mandated reporter shall report civil neglect to the county
adult protective services agency, except that the mandated reporter
shall report civil neglect in a correctional or penal institution to
the correctional or penal agency with jurisdiction and shall report
civil neglect in areas of federal or tribal jurisdiction to the
federal or tribal agency with jurisdiction.
(C) A mandated reporter who makes a report to a local law
enforcement agency or adult protective services agency, in the
reasonable belief that it is the agency to which this section
requires him or her to report, is in substantial compliance with the
requirements of this section. However, if an employee of a local law
enforcement agency that lacks jurisdiction or of an adult protective
services agency that lacks jurisdiction receives such a report,
nothing in this subparagraph relieves that employee of his or her
responsibilities as a mandated reporter under subparagraphs (A) and
(B).
Except in an emergency, the local ombudsperson and
the local law enforcement agency shall, as soon as
practicable, do all of the following:
(i) Report to the State Department of Health Care
Services Department of Public Health, the licensing
agency, and the local long-term care ombudsman any
case of known or suspected abuse or neglect occurring in a
long-term health care facility, as defined in subdivision (a) of
Section 1418 of the Health and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse or neglect occurring in a
residential care facility for the elderly, as defined in Section
1569.2 of the Health and Safety Code, or in an adult day care
facility, as defined in paragraph (2) of subdivision (a) of Section
1502.
(iii) Report to the State Department of Health Care
Services Public Health and the California
Department of Aging any case of known or suspected abuse or
neglect occurring in an adult day health care center, as
defined in subdivision (b) of Section 1570.7 of the Health and Safety
Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Patient Abuse any
case of known or suspected criminal activity against a Medi-Cal
patient in a health care facility .
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Patient Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(D) If the incident occurred in a jail, prison, or other
correctional institution, the mandated reporter shall make the report
to the agency that operates the institution.
(v) Report to the local adult protective services agency any case
of known or suspected abuse or neglect anywhere except in a long-term
care facility, in a correctional or penal institution, or in an area
under federal or tribal jurisdiction.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or adult with a disability
abuse during a penitential communication is not subject to paragraph
(1). For purposes of this subdivision, "penitential communication"
means a communication that is intended to be in confidence,
including, but not limited to, a sacramental confession made to a
clergy member who, in the course of the discipline or practice of his
or her church, gurdwara, mandir, mosque, synagogue, temple, or
religious denomination, or organization is authorized or
accustomed to hear those communications and under the discipline
tenets, customs, or practices of his or her church, gurdwara,
mandir, mosque, synagogue, temple, or religious denomination,
or organization, has a duty to keep those communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
adult with a disability abuse when he or she is acting in the
capacity of a care custodian, health practitioner, or employee of an
adult protective services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or an adult with a disability shall not be
responsible for reporting abuse or neglect that is not reasonably
observable or discernible to a reasonably prudent person having no
specialized training or experience in the care of elders or persons
with disabilities.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or an adult
with a disability that he or she has experienced behavior
constituting physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, abandonment, abduction, isolation,
financial abuse, or neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or adult with a disability has been diagnosed with
a mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those
to:
(1) Mandated reporters who are peace officers or who are
investigators employed by law enforcement agencies.
(2) Those categories of mandated
reporters that the State Department of Health Care Services
Public Health determines, upon approval by the
Bureau of Medi-Cal Fraud and Patient Abuse and the state long-term
care ombudsperson, have access to plans of care and have the training
and experience necessary to determine whether the conditions
specified in this section have been met.
(c) (1) Any mandated
reporter who has knowledge, or reasonably suspects, that types of
elder or adult with a disability abuse or other crime against a
person with a disability for which reports are not mandated have been
inflicted upon an elder or an adult with a disability, or that his
or her emotional well-being is endangered in any other way, may
report the known or suspected instance of abuse or other
crime or civil neglect .
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Health Care Services and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse,
as soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse or
neglect of an elder or an adult with a disability for which a
report is or is not mandated have occurred, and when there is
agreement among them, the telephone report may be made by a member of
the team selected by mutual agreement, and a single report may be
made and signed by the selected member of the reporting team. Any
member who has knowledge that the member designated to report has
failed to do so shall thereafter make the report.
(e) A telephone report of a known or suspected instance of elder
or adult with a disability abuse or neglect shall include,
if known, the name of the person making the report, the name and age
of the elder or adult with a disability, the present location of the
elder or adult with a disability, the names and addresses of family
members or any other adult responsible for the care of the elder or
adult with a disability, the nature and extent of the condition of
the elder or adult with a disability, the date of the incident, and
any other information, including information that led that person to
suspect elder or adult with a disability abuse or neglect
, as requested by the agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires an employee of a
county adult protective services agency to report to a law
enforcement agency, the law enforcement agency shall, immediately
upon request, provide a copy of its investigative report concerning
the reported matter to that county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, abandonment, abduction, isolation, financial
abuse, or neglect of an elder or an adult with a disability, in
violation of this section, is a misdemeanor, punishable by not more
than six months in the county jail, by a fine of not more than one
thousand dollars ($1,000), or by both that fine and imprisonment. Any
mandated reporter who willfully fails to report, or impedes or
inhibits a report of, physical abuse, as defined in Section 15610.63
of the Welfare and Institutions Code, abandonment, abduction,
isolation, financial abuse, or neglect of an elder or an adult with a
disability, in violation of this section, where that abuse results
in death or great bodily injury, shall be punished by not more than
one year in a county jail, by a fine of not more than five thousand
dollars ($5,000), or by both that fine and imprisonment. If a
mandated reporter intentionally conceals his or her failure to report
an incident known by the mandated reporter to be abuse or severe
neglect under this section, the failure to report is a continuing
offense until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 of the Welfare and Institutions Code
discovers the offense.
(i) For purposes of this section, "adult with a disability" shall
have the same meaning as in Section 368.1.
SEC. 122. Section 15630.1 of the Welfare and Institutions Code is
amended to read:
15630.1. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or an adult with a disability"
means all officers and employees of financial institutions.
(b) As used in this section, the term "financial institution"
means any of the following:
(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an
elder or an adult with a disability who has direct contact with the
elder or adult with a disability or who reviews or approves the
financial documents, records, or transactions of the elder or adult
with a disability, in connection with providing financial services
with respect to an elder or an adult with a disability, and who,
within the scope of his or her employment or professional practice,
has observed or has knowledge of an incident, that is directly
related to the transaction or matter that is within that scope of
employment or professional practice, that reasonably appears to be
financial abuse, or who reasonably suspects that abuse, based solely
on the information before him or her at the time of reviewing or
approving the document, record, or transaction in the case of
mandated reporters who do not have direct contact with the elder or
adult with a disability, shall report the known or suspected instance
of financial abuse by telephone immediately, or as soon as
practicably possible, and by written report sent within two working
days to the local adult protective services agency or the
local law enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or an adult with
a disability for which the report is mandated has occurred, and when
there is an agreement among them, the telephone report may be made by
a member of the reporting team who is selected by mutual agreement.
A single report may be made and signed by the selected member of the
reporting team. Any member of the team who has knowledge that the
member designated to report has failed to do so shall thereafter make
that report.
(3) If the mandated reporter knows that the elder or adult with a
disability resides in a long-term care facility, as defined in
Section 15610.47, the report shall be made to the local ombudsman or
local law enforcement agency.
(e) An allegation by the elder or adult with a disability, or any
other person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The
mandated reporter of suspected financial abuse of an elder or an
adult with a disability is aware of no other corroborating or
independent evidence of the alleged financial abuse of an elder or an
adult with a disability. The mandated reporter of suspected
financial abuse of an elder or adult with a disability is not
required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or an
adult with a disability reasonably believes that financial abuse of
an elder or an adult with a disability did not occur.
(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
financial institution that is the employer of the mandated reporter
to the party bringing the action. Subdivision (h) of Section 15630
shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be
recovered only in a civil action brought against the financial
institution by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty may not be brought
for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(h) As used in this section, "suspected financial abuse of an
elder or an adult with a disability" occurs when a person who is
required to report under subdivision (a) observes or has knowledge of
behavior or unusual circumstances or transactions, or a pattern of
behavior or unusual circumstances or transactions, that would lead an
individual with like training or experience, based on the same
facts, to form a reasonable belief that an elder or an adult with a
disability is the victim of financial abuse as defined in Section
15610.30.
(i) Reports of suspected financial abuse of an elder or an adult
with a disability made by an employee or officer of a financial
institution pursuant to this section are covered under subdivision
(b) of Section 47 of the Civil Code.
(j) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 123. Section 15631 of the Welfare and Institutions Code is
amended to read:
15631. (a) Any
Any person who is not a mandated reporter under
Section 15630, who knows, or reasonably suspects, that an elder or an
adult with a disability has been the victim of abuse may report
that abuse to a long-term care ombudsman program or local
law enforcement agency when the abuse is alleged to have occurred in
a long-term care facility.
(b) Any person who
is not a mandated reporter under Section 15630, who knows, or
reasonably suspects, that an elder or an adult with a disability has
been the victim of abuse in any place other than a long-term care
facility may report the abuse to the county adult protective services
agency or local law enforcement agency. that abuse to
the local law enforcement agency.
SEC. 124. Section 15633 of the Welfare and Institutions Code, as
amended by Section 5 of Chapter 140 of the Statutes of 2005, is
amended to read:
15633. (a) The reports made pursuant to Sections 15630, 15630.1,
and 15631 shall be confidential and may be disclosed only as provided
in subdivision (b). Any violation of the confidentiality required by
this chapter is a misdemeanor punishable by not more than six months
in the county jail, by a fine of five hundred dollars ($500), or by
both that fine and imprisonment.
(b) Reports of suspected abuse of an elder or an adult with a
disability and information contained therein may be disclosed only to
the following:
(1) Persons or agencies to whom disclosure of information or the
identity of the reporting party is permitted under Section 15633.5.
(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or dependent
persons.
(B) Except as provided in subparagraph (A), any personnel of the
multidisciplinary team or agency that receives information pursuant
to this chapter, shall be under the same obligations and subject to
the same confidentiality penalties as the person disclosing or
providing that information. The information obtained shall be
maintained in a manner that ensures the maximum protection of privacy
and confidentiality rights.
(c) This section shall not be construed to allow disclosure of any
reports or records relevant to the reports of abuse of an elder or
an adult with a disability if the disclosure would be prohibited by
any other provisions of state or federal law applicable to the
reports or records relevant to the reports of the abuse, nor shall it
be construed to prohibit the disclosure by a financial institution
of any reports or records relevant to the reports of abuse of an
elder or an adult with a disability if the disclosure would be
required of a financial institution by otherwise applicable state or
federal law or court order.
(d) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 125. Section 15633 of the Welfare and Institutions Code, as
added by Section 6 of Chapter 140 of the Statutes of 2005, is amended
to read:
15633. (a) The reports made pursuant to Sections 15630 and 15631
shall be confidential and may be disclosed only as provided in
subdivision (b). Any violation of the confidentiality required by
this chapter is a misdemeanor punishable by not more than six months
in the county jail, by a fine of five hundred dollars ($500), or by
both that fine and imprisonment.
(b) Reports of suspected elder or adult with a disability abuse
and information contained therein may be disclosed only to the
following:
(1) Persons or agencies to whom disclosure of information or the
identity of the reporting party is permitted under Section 15633.5.
(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or
dependent persons elders and persons with disabilities
.
(B) Except as provided in subparagraph (A), any personnel of the
multidisciplinary team or agency that receives information pursuant
to this chapter, shall be under the same obligations and subject to
the same confidentiality penalties as the person disclosing or
providing that information. The information obtained shall be
maintained in a manner that ensures the maximum protection of privacy
and confidentiality rights.
(c) This section shall not be construed to allow disclosure of any
reports or records relevant to the reports of elder or adult with a
disability abuse if the disclosure would be prohibited by any other
provisions of state or federal law applicable to the reports or
records relevant to the reports of the abuse.
(d) This section shall become operative on January 1, 2013.
SEC. 126. Section 15633.5 of the Welfare and Institutions Code is
amended to read:
15633.5. (a) Information relevant to the incident of elder or
adult with a disability abuse may be given to an investigator from an
adult protective services agency, a local law enforcement agency,
the office of the district attorney, the office of the public
guardian, the probate court, the bureau, or an investigator of the
Department of Consumer Affairs, Division of Investigation who is
investigating a known or suspected case of elder or adult with a
disability abuse.
(b) The identity of any person who reports under this chapter
shall be confidential and disclosed only among the following agencies
or persons representing an agency:
(1) An adult protective services agency.
(2) A long-term care ombudsperson program.
(3) A licensing agency.
(4) A local law enforcement agency.
(5) The office of the district attorney.
(6) The office of the public guardian.
(7) The probate court.
(8) The bureau.
(9) The Department of Consumer Affairs, Division of Investigation.
(10) Counsel representing an adult protective services agency.
(c) The identity of a person who reports under this chapter may
also be disclosed under the following circumstances:
(1) To the district attorney in a criminal prosecution.
(2) When a person reporting waives confidentiality.
(3) By court order.
(d) Notwithstanding subdivisions (a), (b), and (c), any person
reporting pursuant to Section 15631 shall not be required to include
his or her name in the report.
SEC. 127. Section 15634 of the Welfare and Institutions Code, as
amended by Section 7 of Chapter 140 of the Statutes of 2005, is
amended to read:
15634. (a) No care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or an
adult with a disability, or employee of an adult protective services
agency or a local law enforcement agency who reports a known or
suspected instance of abuse of an elder or an adult with a disability
shall be civilly or criminally liable for any report required or
authorized by this article. Any other person reporting a known or
suspected instance of abuse of an elder or an adult with a disability
shall not incur civil or criminal liability as a result of any
report authorized by this article, unless it can be proven that a
false report was made and the person knew that the report was false.
No person required to make a report pursuant to this article, or any
person taking photographs at his or her discretion, shall incur any
civil or criminal liability for taking photographs of a suspected
victim of abuse of an elder or an adult with a disability or causing
photographs to be taken of such a suspected victim or for
disseminating the photographs with the reports required by this
article. However, this section shall not be construed to grant
immunity from this liability with respect to any other use of the
photographs.
(b) No care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or an
adult with a disability, or employee of an adult protective services
agency or a local law enforcement agency who, pursuant to a request
from an adult protective services agency or a local law enforcement
agency investigating a report of known or suspected abuse of an elder
or an adult with a disability, provides the requesting agency with
access to the victim of a known or suspected instance of abuse of an
elder or an adult with a disability, shall incur civil or criminal
liability as a result of providing that access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report abuse of an
elder or an adult with a disability, immunity does not eliminate the
possibility that actions may be brought against those persons based
upon required reports of abuse. In order to further limit the
financial hardship that those persons may incur as a result of
fulfilling their legal responsibilities, it is necessary that they
not be unfairly burdened by legal fees incurred in defending those
actions. Therefore, a care custodian, clergy member, health
practitioner, or an employee of an adult protective services agency
or a local law enforcement agency may present to the State Board of
Control a claim for reasonable attorneys' fees incurred in any action
against that person on the basis of making a report required or
authorized by this article if the court has dismissed the action upon
a demurrer or motion for summary judgment made by that person, or if
he or she prevails in the action. The State Board of Control shall
allow that claim if the requirements of this subdivision are met, and
the claim shall be paid from an appropriation to be made for that
purpose. Attorneys' fees awarded pursuant to this section shall not
exceed an hourly rate greater than the rate charged by the Attorney
General at the time the award is made and shall not exceed an
aggregate amount of fifty thousand dollars ($50,000). This
subdivision shall not apply if a public entity has provided for the
defense of the action pursuant to Section 995 of the Government Code.
(d) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 128. Section 15634 of the Welfare and Institutions Code, as
amended by Section 711 of Chapter 538 of the Statutes of 2006, is
amended to read:
15634. (a) No care custodian, clergy member, health practitioner,
or employee of an adult protective services agency or a local law
enforcement agency who reports a known or suspected instance of elder
or adult with a disability abuse shall be civilly or criminally
liable for any report required or authorized by this article. Any
other person reporting a known or suspected instance of elder or
adult with a disability abuse shall not incur civil or criminal
liability as a result of any report authorized by this article,
unless it can be proven that a false report was made and the person
knew that the report was false. No person required to make a report
pursuant to this article, or any person taking photographs at his or
her discretion, shall incur any civil or criminal liability for
taking photographs of a suspected victim of elder or adult with a
disability abuse or causing photographs to be taken of the suspected
victim or for disseminating the photographs with the reports required
by this article. However, this section shall not be construed to
grant immunity from this liability with respect to any other use of
the photographs.
(b) No care custodian, clergy member, health practitioner, or
employee of an adult protective services agency or a local law
enforcement agency who, pursuant to a request from an adult
protective services agency or a local law enforcement agency
investigating a report of known or suspected elder or adult with a
disability abuse, provides the requesting agency with access to the
victim of a known or suspected instance of elder or adult with a
disability abuse, shall incur civil or criminal liability as a result
of providing that access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report elder or adult
with a disability abuse, immunity does not eliminate the possibility
that actions may be brought against those persons based upon required
reports of abuse. In order to further limit the financial hardship
that those persons may incur as a result of fulfilling their legal
responsibilities, it is necessary that they not be unfairly burdened
by legal fees incurred in defending those actions. Therefore, a care
custodian, clergy member, health practitioner, or employee of an
adult protective services agency or a local law enforcement agency
may present to the California Victim Compensation and Government
Claims Board a claim for reasonable attorney's fees incurred in any
action against that person on the basis of making a report required
or authorized by this article if the court has dismissed the action
upon a demurrer or motion for summary judgment made by that person,
or if he or she prevails in the action. The California Victim
Compensation and Government Claims Board shall allow that claim if
the requirements of this subdivision are met, and the claim shall be
paid from an appropriation to be made for that purpose. Attorney's
fees awarded pursuant to this section shall not exceed an hourly rate
greater than the rate charged by the Attorney General at the time
the award is made and shall not exceed an aggregate amount of fifty
thousand dollars ($50,000). This subdivision shall not apply if a
public entity has provided for the defense of the action pursuant to
Section 995 of the Government Code.
(d) This section shall become operative on January 1, 2013.
SEC. 129. Section 15636 of the Welfare and Institutions Code is
amended to read:
15636. (a) Any victim of elder or adult with a disability abuse
may refuse or withdraw consent at any time to an investigation or the
provision of protective services by an adult protective services
agency or long-term care ombudsman program. The adult protective
services agency shall act only with the consent of the victim unless
a violation of the Penal Code crime has
been alleged. A local long-term care ombudsman shall act only with
the consent of the victim and shall disclose confidential information
only after consent to disclose is given by the victim or pursuant to
court order.
(b) If the elder or adult with a disability abuse victim is so
incapacitated that he or she cannot legally give or deny consent to
protective services, a petition for temporary conservatorship or
guardianship may be initiated in accordance with Section 2250 of the
Probate Code.
SEC. 130. Section 15640 of the Welfare and Institutions Code, as
amended by Section 9 of Chapter 140 of the Statutes of 2005, is
amended to read:
15640. (a) (1) An adult protective services agency shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case any
known or suspected instance of criminal activity, and to any public
agency given responsibility for investigation in that jurisdiction of
cases of elder and adult with a disability abuse, every known or
suspected instance of abuse pursuant to Section 15630 or 15630.1 of
an elder or an adult with a disability. A county adult protective
services agency shall also send a written report thereof within two
working days of receiving the information concerning the incident to
each agency to which it is required to make a telephone report under
this subdivision. Prior to making any cross-report of allegations of
financial abuse to law enforcement agencies, an adult protective
services agency shall first determine whether there is reasonable
suspicion of any criminal activity.
(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the person
making the report that he or she is required to make the report to
the long-term care ombudsman program or to a local law enforcement
agency. The adult protective services agency shall not accept the
report by telephone but shall forward any written report received to
the long-term care ombudsman.
(2) The reporting requirements of this section are in addition to,
and do not replace, the reporting requirements of adult protective
services agency employees as mandated reporters.
(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of known
or suspected elder or adult with a disability abuse determines,
pursuant to its investigation, that the abuse is being committed by a
health practitioner licensed under Division 2 (commencing with
Section 500) of the Business and Professions Code, or any related
initiative act, or by a person purporting to be a licensee, the adult
protective services agency or local law enforcement agency or
ombudsman program shall immediately, or as soon as practically
possible, report this information to the appropriate licensing
agency. The licensing agency shall investigate the report in light of
the potential for physical harm. The transmittal of information to
the appropriate licensing agency shall not relieve the adult
protective services agency or local law enforcement agency or
ombudsman program of the responsibility to continue its own
investigation as required under applicable provisions of law. The
information reported pursuant to this paragraph shall remain
confidential and shall not be disclosed.
(c) A local law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the long-term care
ombudsman program when the abuse is alleged to have occurred in a
long-term care facility or to the county adult protective services
agency when it is alleged to have occurred anywhere else, and to the
agency given responsibility for the investigation of cases of elder
and adult with a disability abuse every known or suspected instance
of abuse of an elder or adult with a disability. A local law
enforcement agency shall also send a written report thereof within
two working days of receiving the information concerning the incident
to any agency to which it is required to make a telephone report
under this subdivision.
(d)
(c) A long-term care ombudsman coordinator may report
the instance of abuse to the county adult protective services agency
or to the local law enforcement agency for assistance in the
investigation of the abuse if the victim gives his or her consent. A
long-term care ombudsman program and the Licensing and Certification
Division of the State Department of Health Services
Public Health shall immediately report by
telephone and in writing within two working days to the bureau any
instance of neglect occurring in a health care facility, that has
seriously harmed any patient or reasonably appears to present a
serious threat to the health or physical well-being of a patient in
that facility. If a victim or potential victim of the neglect
withholds consent to being identified in that report, the report
shall contain circumstantial information about the neglect but shall
not identify that victim or potential victim and the bureau and the
reporting agency shall maintain the confidentiality of the report
until the report becomes a matter of public record.
(e)
(d) When a county adult protective services agency
, or a long-term care ombudsman program
, or a local law enforcement agency receives a
report of abuse, neglect, or abandonment of an elder or an adult with
a disability alleged to have occurred in a long-term care facility,
that county adult protective services agency ,
or long-term care ombudsman coordinator , or
local law enforcement agency shall report the incident to
the licensing agency by telephone as soon as possible.
(f)
(e) County adult protective services agencies,
long-term care ombudsman programs, and local law enforcement agencies
shall report the results of their investigations of referrals or
reports of abuse to the respective referring or reporting agencies.
(g)
(f) This section shall remain in effect only until
January 1, 2013, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2013, deletes or
extends that date.
SEC. 131. Section 15640 of the Welfare and Institutions Code, as
added by Section 10 of Chapter 140 of the Statutes of 2005, is
amended to read:
15640. (a) (1) An adult
protective services agency shall immediately, or as soon as
practically possible, report by telephone to the law enforcement
agency having jurisdiction over the case any known or suspected
instance of criminal activity, and to any public agency given
responsibility for investigation in that jurisdiction of cases of
elder and adult with a disability abuse, every known or suspected
instance of abuse pursuant to Section 15630 of an elder or an adult
with a disability. A county adult protective services agency shall
also send a written report thereof within two working days of
receiving the information concerning the incident to each agency to
which it is required to make a telephone report under this
subdivision. Prior to making any cross-report of allegations of
financial abuse to law enforcement agencies, an adult protective
services agency shall first determine whether there is reasonable
suspicion of any criminal activity.
(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the person
making the report that he or she is required to make the report to
the long-term care ombudsman program or to a local law enforcement
agency. The adult protective services agency shall not accept the
report by telephone but shall forward any written report received to
the long-term care ombudsman.
(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of known
or suspected elder or adult with a disability abuse determines,
pursuant to its investigation, that the abuse is being committed by a
health practitioner licensed under Division 2 (commencing with
Section 500) of the Business and Professions Code, or any related
initiative act, or by a person purporting to be a licensee, the adult
protective services agency or local law enforcement agency or
ombudsman program shall immediately, or as soon as practically
possible, report this information to the appropriate licensing
agency. The licensing agency shall investigate the report in light of
the potential for physical harm. The transmittal of information to
the appropriate licensing agency shall not relieve the adult
protective services agency or local law enforcement agency or
ombudsman program of the responsibility to continue its own
investigation as required under applicable provisions of law. The
information reported pursuant to this paragraph shall remain
confidential and shall not be disclosed.
(c) A local law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the long-term care
ombudsman program when the abuse is alleged
to have occurred in a long-term care facility
or to the county adult protective services agency when it is alleged
to have occurred anywhere else, and to the agency given
responsibility for the investigation of cases of elders and adult
with a disability abuse every known or suspected instance of abuse of
an elder or adult with a disability. A local law enforcement agency
shall also send a written report thereof within two working days of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.
(d)
(c) A long-term care ombudsman coordinator may report
the instance of abuse to the county adult protective services agency
or to the local law enforcement agency for assistance in the
investigation of the abuse if the victim gives his or her consent. A
long-term care ombudsman program and the Licensing and Certification
Division of the State Department of Health Services
Public Health shall immediately report by
telephone and in writing within two working days to the bureau any
instance of neglect occurring in a health care facility, that has
seriously harmed any patient or reasonably appears to present a
serious threat to the health or physical well-being of a patient in
that facility. If a victim or potential victim of the neglect
withholds consent to being identified in that report, the report
shall contain circumstantial information about the neglect but shall
not identify that victim or potential victim and the bureau and the
reporting agency shall maintain the confidentiality of the report
until the report becomes a matter of public record.
(e)
(d) When a county adult protective services agency
, or a long-term care ombudsman program
, or a local law enforcement agency receives a
report of abuse, neglect, or abandonment of an elder or adult with a
disability alleged to have occurred in a long-term care facility,
that county adult protective services agency ,
or long-term care ombudsman coordinator , or
local law enforcement agency shall report the incident to
the licensing agency by telephone as soon as possible.
(f)
(e) County adult protective services agencies,
long-term care ombudsman programs, and local law enforcement agencies
shall report the results of their investigations of referrals or
reports of abuse to the respective referring or reporting agencies.
(g)
(f) This section shall become operative on January 1,
2013.
SEC. 132. Section 15650 of the Welfare and Institutions Code is
amended to read:
15650. (a) Investigation of reports of known or suspected
instances of abuse in long-term care facilities shall be the
responsibility of the long-term care ombudsman program, for instances
of physical and financial abuse, the local law enforcement agency,
and for instances of potential criminal neglect in a long-term health
care facility, the long-term care ombudsman program and the bureau.
(b) Investigations of known or suspected instances of abuse
outside of long-term care facilities shall be the responsibility of
the county adult protective services agency and the local law
enforcement agency unless another public agency is given
responsibility for investigation in that jurisdiction.
15650. (a) Local law enforcement and local
correctional agencies, state law enforcement agencies, and state
peace officers with jurisdiction, have concurrent jurisdiction over
abuse, criminal neglect, and other crimes against elders and persons
with disabilities.
(b) The Department of Corrections and Rehabilitation has
jurisdiction over abuse, neglect, and other crimes that occur against
elders and persons with disabilities in the institutions of the
department.
(c) The investigative responsibilities law
enforcement jurisdictions set forth in this section are in
addition to, and not in derogation of or substitution for, the
investigative and regulatory responsibilities of licensing agencies,
such as the State Department of Social Services Community Care
Licensing Division and the State Department of Health Care
Services Public Health Licensing and
Certification Division and their authorized representatives ,
and the statutory responsibilities of the adult protective services
agencies and the state and local long-term care ombudsman programs.
Nothing in this section prevents a law enforcement or correctional
agency from seeking or accepting assistance from any of these
agencies, or any other appropriate agencies, in a criminal
investigation, provided that the law enforcement or correctional
agency retains ultimate responsibility for the criminal investigation
.
(d) Other public agencies involved in the investigation of abuse
or advocacy of respective client populations, or both, include, but
shall not be limited to, the State Department of Mental Health and
the State Department of Developmental Services. Other public agencies
shall conduct or assist in, or both, the investigation of reports of
abuse of elders and adults with disabilities within their
jurisdiction in conjunction with county adult protective services,
local ombudsman programs and local law enforcement agencies.
(e) Each county adult protective services agency and local
long-term care ombudsman program shall maintain an
inventory of all public and private service agencies available to
assist victims of abuse, as defined by Section 15610.07. This
inventory shall be used to refer victims in the event that the county
adult protective services agency and local long-term care
ombudsman program cannot resolve the immediate needs of the
victim, and to serve the victim on a long-term, followup basis. The
intent of this section is to acknowledge that limited funds are
available to resolve all suspected cases of abuse reported to a
county adult protective services agency and local long-term care
ombudsman program .
(f) Each local ombudsman program shall maintain an
inventory of all public and private agencies available to assist
long-term care residents who are victims of abuse, as defined by
Section 15610.07. This inventory shall be used to refer
cases of abuse in the event that another agency has jurisdiction over
the resident, the abuse is verified and further investigation is
needed by a law enforcement or licensing agency, or the program does
not have sufficient resources to provide immediate assistance. The
intent of this section is to acknowledge that ombudsman
responsibility in abuse cases is to receive reports, determine the
validity of reports, refer verified abuse cases to appropriate
agencies for further action as necessary, and follow up to complete
the required report information. Other ombudsman services shall be
provided to the resident, as appropriate.
SEC. 133. Section 15653 of the Welfare and Institutions Code is
amended to read:
15653. (a) Minimum guidelines for use by county adult protective
services agencies in determining when an investigation of
abuse is warranted shall be maintained by the State
Department of Social Services in cooperation with representatives of
county government, and in consultation with the Department of Aging,
the Department of Justice, and other concerned state departments for
use by county adult protective services agencies.
(b) Uniform guidelines for local law enforcement assistance with
investigations of allegations of abuse to elders and adults with
disabilities as developed by the Department of Justice in
consultation with the department, the Department of Aging, and other
concerned state and local agencies pursuant to Section 15640, as
amended by Chapter 769 of the Statutes of 1986, shall remain in
effect until modified. Consistent with these guidelines, county adult
protective services agencies may seek local law enforcement
assistance with investigations of allegations of abuse to elders and
adults with disabilities.
SEC. 134. Section 15654 of the Welfare and Institutions Code is
amended to read:
15654. As described in subdivision (h) of Section 12528 of the
Government Code, the bureau shall offer training programs to local
law enforcement and prosecutorial personnel in investigating and
prosecuting crimes against elders and adults with disabilities, and
to the State Department of Health Services
Public Health , the State Department of Social Services, the
county adult protective services agencies and to the long-term care
ombudsman program in evaluating and documenting criminal
abuse abuse and criminal neglect against elders
and adults with disabilities.
SEC. 135. Section 15655 of the Welfare and Institutions Code is
amended to read:
15655. (a) (1) Each long-term health care facility, as defined in
Section 1418 of the Health and Safety Code, community care facility,
as defined in Section 1502 of the Health and Safety Code, or
residential care facility for the elderly, as defined in Section
1569.2 of the Health and Safety Code, that provides care to adults
shall provide training in recognizing and reporting elder and adult
with a disability abuse, as prescribed by the Department of Justice.
The Department of Justice shall, in cooperation with the State
Department of Health Services Public Health
and the State Department of Social Services, develop a minimal
core training program for use by these facilities. As part of that
training, long-term care facilities, including nursing homes and
out-of-home care facilities, shall provide to all staff being trained
a written copy of the reporting requirements and a written
notification of the staff's confidentiality rights as specified in
Section 15633.
(2) Each long-term health care facility as defined in Section 1418
of the Health and Safety Code and each community care facility as
defined in Section 1502 of the Health and Safety Code shall comply
with paragraph (1) by January 1, 2001, or, if the facility began
operation after July 31, 2000, within six months of the date of the
beginning of the operation of the facility. Employees hired after
June 1, 2001, shall be trained within 60 days of their first day of
employment.
(3) Each residential care facility as defined in Section 1569.2 of
the Health and Safety Code shall comply with paragraph (1) by July
1, 2002, or, if the facility began operation after July 1, 2002,
within six months of the date of the beginning of the operation of
the facility. Employees hired on or after July 1, 2002, shall be
trained within 60 days of their first day of employment.
(b) Each long-term health care facility, as defined in Section
1418 of the Health and Safety Code, shall be subject to review by the
State Department of Health Care Services
Public Health Licensing and Certification Unit for compliance
with the duties imposed in subdivision (a).
(c) Each community care facility, as defined in Section 1502 of
the Health and Safety Code, and residential care facility for the
elderly, as defined in Section 1569.2 of the Health and Safety Code,
shall be subject to review by the State Department of Social Services
Community Care Licensing Unit for compliance with the duties imposed
in subdivision (a).
SEC. 136. Section 15655.5 of the Welfare and Institutions Code, as
amended by Section 11 of Chapter 140 of the Statutes of 2005, is
amended to read:
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or an adult with a disability pursuant to Section 15630.1, with
instructional materials regarding abuse and neglect of an elder or
an adult with a disability and their obligation to report under this
chapter. At a minimum, the instructional materials shall include the
following:
(a) An explanation of abuse and neglect of an elder or an adult
with a disability, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or an adult with a disability.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 137. Section 15655.5 of the Welfare and Institutions Code, as
amended by Section 712 of Chapter 538 of the Statutes of 2006, is
amended to read:
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17 with instructional materials regarding elder and adult with
a disability abuse and neglect and their obligation to report under
this chapter. At a minimum, the instructional materials shall include
the following:
(a) An explanation of elder and adult with a disability abuse and
neglect, as defined in this chapter.
(b) Information on how to recognize potential elder and adult with
a disability abuse and neglect.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
(e) This section shall become operative on January 1, 2013.
SEC. 138. Section 15656 of the Welfare and Institutions Code is
amended to read:
15656. Prosecutions for crimes against elders and adults with
disabilities shall proceed pursuant to the relevant sections in the
Penal Code and other codes, including, but not limited to, Sections
28, 237, 368.2, 368.3, 368.4, 368.5, 368.6, and 422.6 of the Penal
Code.
SEC. 139. Section 15657.03 of the Welfare and Institutions Code is
amended to read:
15657.03. (a) An elder or an adult with a disability who has
suffered abuse as defined in Section 15610.07 may seek protective
orders as provided in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or adult with a disability.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the other party.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form:
"NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF THIS FORM
INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE HEARING
WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY SERVED WITH A
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER AND NOTICE
OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING EITHER IN PERSON OR
BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE ORDER IS ISSUED AT
THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR TEMPORARY
RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF THE ORDER
WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS ____. IF
THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE TEMPORARY
OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE CHANGE,
CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
() There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) (1) Fees otherwise payable by a petitioner to a law
enforcement agency for serving an order issued under this section may
be waived in any case in which the petitioner has requested a fee
waiver on the initiating petition and has filed a declaration that
demonstrates, to the satisfaction of the court, the financial need of
the petitioner for the fee waiver. The declaration required by this
subdivision shall be on one of the following forms:
(A) The form formulated and adopted by the Judicial Council for
litigants proceeding in forma pauperis pursuant to Section 68511.3 of
the Government Code, but the petitioner is not subject to any other
requirements of litigants proceeding in forma pauperis.
(B) Any other form that the Judicial Council may adopt for this
purpose pursuant to subdivision (r).
(2) In conjunction with a hearing pursuant to this section, the
court may make an order for the waiver of fees otherwise payable by
the petitioner to a law enforcement agency for serving an order
issued under this section.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
SEC. 140. Section 15657.1 of the Welfare and Institutions Code is
amended to read:
15657.1. The award of attorney's fees pursuant to subdivision (a)
of Section 15657 shall be based on all factors relevant to the value
of the services rendered, including, but not limited to, the
factors set forth in Rule 4-200
of the Rules of Professional Conduct of the State Bar of California,
and all of the following:
(a) The value of the abuse-related litigation in terms of the
quality of life of the elder or adult with a disability, and the
results obtained.
(b) Whether the defendant took reasonable and timely steps to
determine the likelihood and extent of liability.
(c) The reasonableness and timeliness of any written offer in
compromise made by a party to the action.
SEC. 141. Section 15657.3 of the Welfare and Institutions Code is
amended to read:
15657.3. (a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent
jurisdiction over civil actions and proceedings involving a claim
for relief arising out of the abduction, as defined in Section
15610.06, or the abuse of an elder or an adult with a disability, if
a conservator has been appointed for plaintiff prior to the
initiation of the action for abuse.
(b) The department of the superior court having jurisdiction over
probate conservatorships shall not grant relief under this article if
the court determines that the matter should be determined in a civil
action, but shall instead transfer the matter to the general civil
calendar of the superior court. The court need not abate any
proceeding for relief pursuant to this article if the court
determines that the civil action was filed for the purpose of delay.
(c) The death of the elder or adult with a disability does not
cause the court to lose jurisdiction of any claim for relief for
abuse of an elder or an adult with a disability.
(d) (1) Subject to paragraph (2) and subdivision (e), after the
death of the elder or adult with a disability, the right to commence
or maintain an action shall pass to the personal representative of
the decedent. If there is no personal representative, the right to
commence or maintain an action shall pass to any of the following, if
the requirements of Section 377.32 of the Code of Civil Procedure
are met:
(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section
377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate
Code, as limited in this subparagraph. As used in this subparagraph,
"an interested person" does not include a creditor or a person who
has a claim against the estate who is not an heir or beneficiary of
the decedent's estate.
(2) If the personal representative refuses to commence or maintain
an action or if the personal representative's family or an
affiliate, as those terms are defined in subdivision (c) of Section
1064 of the Probate Code, is alleged to have committed abuse of the
elder or adult with a disability, the persons described in
subparagraphs (A), (B), and (C) of paragraph (1) shall have standing
to commence or maintain an action for elder abuse. Nothing in this
paragraph shall require the court to resolve the merits of an elder
abuse action for the purposes of finding that a plaintiff who meets
the qualifications of subparagraphs (A), (B), and (C) of paragraph
(1) has standing to commence or maintain such an action.
(e) If two or more persons who are either described in
subparagraphs (A), (B), or (C) of paragraph (1) of subdivision (d),
or a personal representative claim to have standing to commence or
maintain an action for elder abuse, upon petition or motion, the
court in which the action or proceeding is pending, may make any
order concerning the parties that is appropriate to ensure the proper
administration of justice in the case pursuant to Section 377.33 of
the Code of Civil Procedure.
(f) This section does not affect the applicable statute of
limitations for commencing an action for relief for abuse of an elder
or an adult with a disability.
SEC. 142. Section 15658 of the Welfare and Institutions Code is
amended to read:
15658. (a) (1) The written abuse reports required for the
reporting of abuse, as defined in this chapter, shall be submitted on
forms adopted by the State Department of Social Services after
consultation with representatives of the various law enforcement
agencies, the California Department of Aging, the State Department of
Developmental Services, the State Department of Mental Health, the
bureau, professional medical and nursing agencies, hospital
associations and county welfare departments. These reporting forms
shall be distributed by the county adult protective services agencies
and the long-term care ombudsman programs. This reporting form may
also be used for documenting the telephone report of a known or
suspected instance of abuse of an elder or an adult with a disability
by the county adult protective services agency, local ombudsman
program, and local law enforcement agencies.
(2) The forms required by this section shall contain the following
items:
(A) The name, address, telephone number, and occupation of the
person reporting.
(B) The name and address of the victim.
(C) The date, time, and place of the incident.
(D) Other details, including the reporter's observations and
beliefs concerning the incident.
(E) Any statement relating to the incident made by the victim.
(F) The name of any individuals believed to have knowledge of the
incident.
(G) The name of the individuals believed to be responsible for the
incident and their connection to the victim.
(b) (1) Each county adult protective services agency shall report
to the State Department of Social Services monthly on the reports
received pursuant to this chapter. The reports shall be made on forms
adopted by the department. The information reported shall include,
but shall not be limited to, the number of incidents of abuse, the
number of persons abused, the type of abuse sustained, and the
actions taken on the reports. For purposes of these reports, sexual
abuse shall be reported separately from physical abuse.
(2) The county's report to the department shall not include
reports it receives from the long-term care ombudsman program
pursuant to subdivision (c).
(3) The department shall refer to the bureau monthly data
summaries of the reports of elder and adult with a disability abuse,
neglect, abandonment, isolation, and financial abuse, and other abuse
it receives from county adult protective services agencies.
(c) Each long-term care ombudsman program shall report to the
office of the Long-Term Care Ombudsman of the California Department
of Aging monthly on the reports it receives pursuant to this chapter
with a copy sent to the county adult protective services agency. The
office of the state ombudsman shall submit a summarized quarterly
report to the department based on the monthly reports submitted by
local long-term care ombudsman programs. The reports shall be on
forms adopted by the department and the office of the state
ombudsman. The information reported shall include, but shall not be
limited to, the number of incidents of abuse, the numbers of persons
abused, the type of abuse, and the actions taken on the reports. For
purposes of these reports, sexual abuse shall be reported separately
from physical abuse.
SEC. 143. Section 15659 of the Welfare and Institutions Code is
amended to read:
15659. (a) Any person who enters into employment on or after
January 1, 1995, as a care custodian, clergy member, health
practitioner, or with an adult protective services agency or a local
law enforcement agency, prior to commencing his or her employment and
as a prerequisite to that employment, shall sign a statement on a
form that shall be provided by the prospective employer, to the
effect that he or she has knowledge of Section 15630 and will comply
with its provisions. The employer shall provide a copy of Section
15630 to the employee. The statement shall inform the employee that
he or she is a mandated reporter and inform the employee of his or
her reporting obligations under Section 15630. The signed statement
shall be retained by the employer.
(b) Agencies or facilities that employ persons who were employed
prior to January 1, 1995, and who are required to make reports
pursuant to Section 15630, shall inform those persons of their
responsibility to make reports by delivering to them a copy of the
statement specified in subdivision (a).
(c) The cost of printing, distribution, and filing of these
statements shall be borne by the employer.
(d) On and after January 1, 1995, when a person is issued a state
license or certificate to engage in a profession or occupation the
members of which are required to make a report pursuant to Section
15630, the state agency issuing the license or certificate shall send
to the person a statement substantially similar to the one contained
in subdivision (a) at the same time that it transmits to the person
the document indicating licensure or certification.
(e) As an alternative to the procedure required by subdivision
(d), a state agency may cause the required statement to be printed on
all application forms for a license or certificate printed on or
after January 1, 1995.
(f) The retention of statements required by subdivision (a), and
the delivery of statements required by subdivision (b), shall be the
full extent of the employer's duty pursuant to this section. The
failure of any employee or other person associated with the employer
to report abuse of elders or adults with disabilities pursuant to
Section 15630 or otherwise meet the requirements of this chapter
shall be the sole responsibility of that person. The employer or
facility shall incur no civil or other liability for the failure of
these persons to comply with the requirements of this chapter.
SEC. 144. Section 15670 of the Welfare and Institutions Code is
amended to read:
15670. The Legislature finds and declares all of the following:
(a) Instances of elder and adult with a disability abuse are on
the rise, with the majority of the abuse occurring in the home of an
elder or a person with a disability by noncertified caregivers.
(b) This state has a responsibility to protect these persons and
to see that they are safeguarded from individuals who may pose a
threat to their well-being.
(c) Criminal background checks of individuals who provide personal
care services to elders and adults with disabilities, while not
ending all occurrences of abuse, will serve as a factor in reducing
some of these occurrences and giving senior citizens, adults with
disabilities, and their families a sense of security that care is not
being administered by individuals with dangerous criminal
backgrounds.
(d) An effective background check program will be timely,
affordable, and encompass caregivers in domestic and institutional
settings.
(e) Individuals providing personal care services to elders and
adults with disabilities should be well trained and appropriately
compensated for their services to foster the creation of a long-term,
professional work force.
(f) Therefore, it is the intent of the Legislature in enacting
this article that certified nurse assistants and certified home
health aides shall be subject to a criminal background check.
(g) It is the intent of the Legislature that the State Department
of Social Services prepare a plan by January 1, 1996, to implement a
program of criminal background checks for in-home care providers
employed under the In-Home Supportive Services program (Article 7
(commencing with Section 12300) of Chapter 3 of Part 3). The plan
shall be made available to the Legislature upon request.
SEC. 145. The heading of Chapter 12 (commencing with Section
15700) of Part 3 of Division 9 of the Welfare and Institutions Code
is amended and renumbered to read:
CHAPTER 3. PROTECTIVE PLACEMENTS AND CUSTODY OF ENDANGERED
ADULTS
SEC. 146. Section 15700 of the Welfare and Institutions Code is
amended to read:
15700. (a) The Legislature finds and declares all of the
following:
(1) Elders and adults with disabilities may be subjected to abuse,
neglect, or abandonment, and that this state has a responsibility to
protect those persons.
(2) Most elders and adults with disabilities who are at greatest
risk of abuse, neglect, or abandonment by their families or
caretakers, suffer physical impairments and other poor health that
place them in a dependent and vulnerable position.
(3) A significant number of these persons have developmental
disabilities and that mental and verbal limitations often leave them
vulnerable to abuse and incapable of asking for help and protection.
(4) In cases of severe elder and adult with a disability abuse or
neglect, endangered adults are often placed in situations that pose
an immediate risk of serious injury or death.
(5) In cases of severe elder and adult with a disability abuse or
neglect, endangered adults are frequently deprived of their personal
autonomy and dignity by their abusers, thus preventing them from
acting on their own needs or desires to free themselves from serious,
and even life-threatening, abuse or neglect.
(6) Due to limited resources, court delays, and limitations of
existing law, authorities are often unable to intervene in time to
prevent victims of abuse and neglect from being seriously injured or
killed.
(7) These limitations have left endangered adults, or elders and
adults with disabilities subject to avoidable pain, suffering, and
death, and has resulted in the expenditure of public funds of the
treatment of major injuries and health conditions that could have
been avoided with proper and timely intervention.
(b) It is the intent of the Legislature, in enacting this chapter,
to enhance the protection of elders and adults with disabilities by
providing a mechanism for temporary emergency protective custody of
elders or adults with disabilities who are suspected victims of abuse
or neglect, and who are found to be in a situation that poses an
immediate risk of serious injury or death, and when no other means
are available to mitigate the risk to the elder or adult with a
disability.
SEC. 146.5. Section 15701 of the Welfare and Institutions Code is
amended to read:
15701. The definitions contained in this article and Chapter 2
(commencing with Section 15600) shall govern the construction of this
chapter.
SEC. 147. Section 15701.05 of the Welfare and Institutions Code is
amended to read:
15701.05. "Appropriate temporary residence" means any of the
following:
(a) A home or dwelling belonging to a member of the endangered
adult's family or next of kin, if it would not constitute a risk to
the endangered adult or adult with a disability.
(b) An adult residential care facility or residential care
facility for the elderly designated by the county as an emergency
shelter and that is licensed by the State of California to deal with
the needs of elders or adults with disabilities.
(c) A 24-hour health facility, as designated by Sections 1250,
1250.2, and 1250.3 of the Health and Safety Code.
(d) This chapter shall not be used to circumvent or supplant the
involuntary detention and evaluation process provided for pursuant to
Chapter 2 (commencing with Section 5150) of Part 1 of Division 5. A
person shall not be deemed an "endangered adult" for the sole reason
that he or she voluntarily relies on treatment by spiritual means
through prayer alone, in lieu of medical treatment.
(e) This chapter shall not be used to effectuate placement in
jails or correctional treatment centers, as defined in paragraph (1)
of subdivision (j) of Section 1250 of the Health and Safety Code.
SEC. 148. The heading of Chapter 13 (commencing with Section
15750) of Part 3 of Division 9 of the Welfare and Institutions Code
is amended and renumbered to read:
CHAPTER 4. ADULT PROTECTIVE SERVICES
SEC. 148.5. Section 15750 of the
Welfare and Institutions Code is amended to read:
15750. The definitions contained in Chapter 11
2 (commencing with Section 15600) shall govern the
construction of this chapter.
SEC. 149. Section 15751 of the Welfare and Institutions Code is
amended to read:
15751. Each county welfare department shall establish and support
a system of protective services to elders and adults with
disabilities who may be subjected to neglect, abuse, or exploitation,
or who are unable to protect their own interest.
This system shall be known as the county adult protective services
system.
SEC. 150. Section 15755 of the Welfare and Institutions Code is
amended to read:
15755. A law enforcement agency may seek a search warrant from a
magistrate pursuant to the procedures set forth in Chapter 3
(commencing with Section 1523) of Title 12 of Part 2 of the Penal
Code to enable a peace officer to have access to, and to inspect,
premises if a county welfare worker has been denied access to the
premises by the person or persons in possession of the premises and
there is probable cause to believe an elder or an adult with a
disability on those premises is subject to abuse. While executing the
search warrant the peace officer may allow a county welfare worker,
or any other appropriate person, to accompany him or her.
SEC. 151. Section 15762 of the Welfare and Institutions Code is
amended to read:
15762. When an allegation of abuse of an elder or an adult with a
disability is reported to a county designated adult protective
service agency and an agency social worker has reason to believe an
elder or an adult with a disability has suffered or is at substantial
risk of abuse pursuant to Section 15630, the social worker shall
attempt to obtain consent to enter and meet privately with the elder
or adult with a disability about whom the report was made in the
residence or dwelling in which the elder or adult with a disability
resides without the presence of the person's caretaker, attendant, or
family or household member, unless the person requests the presence
of the attendant, care giver, or family member, or refuses to meet
with the social worker.
SEC. 152. Section 15763 of the Welfare and Institutions Code is
amended to read:
15763. (a) Each county shall establish an emergency response
adult protective services program that shall provide in-person
response, 24 hours per day, seven days per week, to reports of abuse
of an elder or an adult with a disability, for the purpose of
providing immediate intake or intervention, or both, to new reports
involving immediate life threats and to crises in existing cases. The
program shall include policies and procedures to accomplish all of
the following:
(1) Provision of case management services that include
investigation of the protection issues, assessment of the person's
concerns, needs, strengths, problems, and limitations, stabilization
and linking with community services, and development of a service
plan to alleviate identified problems utilizing counseling,
monitoring, followup, and reassessment.
(2) Provisions for emergency shelter or in-home protection to
guarantee a safe place for the elder or adult with a disability to
stay until the dangers at home can be resolved.
(3) Establishment of multidisciplinary teams to develop
interagency treatment strategies, to ensure maximum coordination with
existing community resources, to ensure maximum access on behalf of
elders and adults with disabilities, and to avoid duplication of
efforts.
(b) (1) A county shall respond immediately to any report of
imminent danger to an elder or an adult with a disability residing in
other than a long-term care facility, as defined in Section 9701 of
the Welfare and Institutions Code, or a residential facility, as
defined in Section 1502 of the Health and Safety Code. For reports
involving persons residing in a long-term care facility or a
residential care facility, the county shall report to the local
long-term care ombudsman program. Adult protective services staff
shall consult, coordinate, and support efforts of the ombudsman
program to protect vulnerable residents. Except as specified in
paragraph (2), the county shall respond to all other reports of
danger to an elder or an adult with a disability in other than a
long-term care facility or residential care facility within 10
calendar days or as soon as practicably possible.
(2) An immediate or 10-day in-person response is not required when
the county, based upon an evaluation of risk, determines and
documents that the elder or adult with a disability is not in
imminent danger and that an immediate or 10-day in-person response is
not necessary to protect the health or safety of the elder or adult
with a disability.
(3) The State Department of Social Services, in consultation with
the County Welfare Directors Association, shall develop requirements
for implementation of paragraph (2), including, but not limited to,
guidelines for determining appropriate application of this section
and any applicable documentation requirements.
(4) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement the requirements developed pursuant to
paragraph (3) by means of all-county letters or similar instructions
prior to adopting regulations for that purpose. Thereafter, the
department shall adopt regulations in accordance with the
requirements of Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(c) A county shall not be required to report or respond to a
report pursuant to subdivision (b) that involves danger to an elder
or an adult with a disability residing in any facility for the
incarceration of prisoners that is operated by or under contract to
the Federal Bureau of Prisons, the Department of Corrections, the
California Department of the Youth Authority, a county sheriff's
department, a county probation department, a city police department,
or any other law enforcement agency when the abuse reportedly has
occurred in that facility.
(d) A county shall provide case management services to elders and
adults with disabilities who are determined to be in need of adult
protective services for the purpose of bringing about changes in the
lives of victims and to provide a safety net to enable victims to
protect themselves in the future. Case management services shall
include the following, to the extent services are appropriate for the
individual:
(1) Investigation of the protection issues, including, but not
limited to, social, medical, environmental, physical, emotional, and
developmental.
(2) Assessment of the person's concerns and needs on whom the
report has been made and the concerns and needs of other members of
the family and household.
(3) Analysis of problems and strengths.
(4) Establishment of a service plan for each person on whom the
report has been made to alleviate the identified problems.
(5) Client input and acceptance of proposed service plans.
(6) Counseling for clients and significant others to alleviate the
identified problems and to implement the service plan.
(7) Stabilizing and linking with community services.
(8) Monitoring and followup.
(9) Reassessments, as appropriate.
(e) To the extent resources are available, each county shall
provide emergency shelter in the form of a safe haven or in-home
protection for victims. Shelter and care appropriate to the needs of
the victim shall be provided for frail and disabled victims who are
in need of assistance with activities of daily living.
(f) Each county shall designate an adult protective services
agency to establish and maintain multidisciplinary teams including,
but not limited to, adult protective services, law enforcement,
probation departments, home health care agencies, hospitals, adult
protective services staff, the public guardian, private community
service agencies, public health agencies, and mental health agencies
for the purpose of providing interagency treatment strategies.
(g) Each county shall provide tangible support services, to the
extent resources are available, which may include, but not be limited
to, emergency food, clothing, repair or replacement of essential
appliances, plumbing and electrical repair, blankets, linens, and
other household goods, advocacy with utility companies, and emergency
response units.
SEC. 153. Section 15766 of the Welfare and Institutions Code is
amended to read:
15766. The investigation of allegations of elder and adult with a
disability abuse pursuant to this chapter, and the case management
of elder and adult with a disability abuse cases shall be performed
by county merit systems civil service employees. A county adult
protective service agency may utilize a contracted private or
nonprofit telephone answering service after normal working hours and
on weekends and holidays. Such a contracted telephone service shall
immediately forward to a county merit systems civil service employee
any report of abuse or neglect of an elder or an adult with a
disability, unless the caller is: (a) requesting routine information
only; (b) reporting an incident of abuse which occurred prior to the
date of the call, which does not at the time of the call put the
victim at risk; or (c) requesting information not related to the
adult protective service program, and the person answering the
telephone meets the standards established by the department.
SEC. 153.5. Section 15767 is added to the
Welfare and Institutions Code , to read:
15767. The requirements of this chapter are in addition to, and
do not replace, the mandatory reporting requirements of Section
15630.
SEC. 154. The heading of Chapter 14 (commencing with Section
15800) of Part 3 of Division 9 of the Welfare and Institutions Code
is amended and renumbered to read:
CHAPTER 11. HOME CARE ASSESSMENT PILOT PROJECT
SEC. 155. Section 15800 of the Welfare and Institutions Code is
amended and renumbered to read:
15540. (a) The County of San Mateo shall adopt the use of the
Minimum Data Set-Home Care (MDS-HC) assessment instrument for use,
until December 31, 2008, by all home- and community-based programs
within the county that serve elders and persons with disabilities
with the primary goal of enabling them to continue to live in their
homes as independently as possible. These programs may include the
Multipurpose Senior Services Program, the In-Home Supportive Services
program, adult day health care programs, and adult day programs.
(b) For purposes of this chapter, the "Minimum Data Set-Home Care
(MDS-HC) assessment instrument" means a uniform assessment
instrument that shares a common
language with Minimum Data Set (MDS) for nursing facilities and the
Outcome and Assessment Information Set (OASIS) instrument used by
home health agencies, and that is oriented to obtaining specific
information about the client's functional abilities and needs.
SEC. 156. Section 15801 of the Welfare and Institutions Code is
amended and renumbered to read:
15541. (a) This chapter shall not modify existing program
eligibility requirements, reporting timeframes, or any other program
standards.
(b) Home health agencies licensed pursuant to Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code shall not be subject to the requirements of this chapter.
SEC. 157. Section 15802 of the Welfare and Institutions Code is
amended and renumbered to read:
15542. To ensure that program staff are adequately trained, the
use of the MDS-HC assessment instrument pursuant to this chapter
shall be phased in, beginning with the Multipurpose Senior Services
Program, and the AIDS case management services, Linkages, and In-Home
Supportive Services programs administered through the Aging and
Adult Services Division of the San Mateo County Health Services
Agency. If the County of San Mateo determines that the use of the
MDS-HC assessment instrument is successful in those programs, it
shall expand the implementation of the use of the MDS-HC assessment
instrument to include other home- and community-based programs,
including, but not limited to, adult day care and adult day health
care.
SEC. 158. Section 15803 of the Welfare and Institutions Code is
amended and renumbered to read:
15543. (a) The county shall seek funding for the evaluation of
the use of the MDS-HC assessment instrument by an independent
research organization. The results of the evaluation shall be
reported to the Legislature, and to the Long-Term Care Council,
established pursuant to Section 12803.2 of the Government Code, on or
before May 31, 2009.
(b) State funds shall not be appropriated for purposes of this
chapter. The county shall only be required to implement this chapter
to the extent that the county receives federal or private funds for
that purpose.
SEC. 159. Section 15804 of the Welfare and Institutions Code is
amended and renumbered to read:
15544. This chapter shall become inoperative on July 1, 2009, and
as of January 1, 2010, is repealed, unless a later enacted statute
that becomes operative on or before January 1, 2010, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 160. Section 16501 of the Welfare and Institutions Code is
amended to read:
16501. (a) As used in this chapter, "child welfare services"
means public social services which are directed toward the
accomplishment of any or all the following purposes: protecting and
promoting the welfare of all children, including handicapped,
homeless, dependent, or neglected children; preventing or remedying,
or assisting in the solution of problems which may result in, the
neglect, abuse, exploitation, or delinquency of children; preventing
the unnecessary separation of children from their families by
identifying family problems, assisting families in resolving their
problems, and preventing breakup of the family where the prevention
of child removal is desirable and possible; restoring to their
families children who have been removed, by the provision of services
to the child and the families; identifying children to be placed in
suitable adoptive homes, in cases where restoration to the biological
family is not possible or appropriate; and assuring adequate care of
children away from their homes, in cases where the child cannot be
returned home or cannot be placed for adoption.
"Child welfare services" also means services provided on behalf of
children alleged to be the victims of child abuse, neglect, or
exploitation. The child welfare services provided on behalf of each
child represent a continuum of services, including emergency response
services, family preservation services, family maintenance services,
family reunification services, and permanent placement services. The
individual child's case plan is the guiding principle in the
provision of these services. The case plan shall be developed within
30 days of the initial removal of the child or of the in-person
response required under subdivision (f) of Section 16501 if the child
has not been removed from his or her home, or by the date of the
jurisdictional hearing pursuant to Section 356, whichever comes
first.
(1) Child welfare services may include, but are not limited to, a
range of service-funded activities, including case management,
counseling, emergency shelter care, emergency in-home caretakers,
temporary in-home caretakers, respite care, therapeutic day services,
teaching and demonstrating homemakers, parenting training, substance
abuse testing, and transportation. These service-funded activities
shall be available to children and their families in all phases of
the child welfare program in accordance with the child's case plan
and departmental regulations. Funding for services is limited to the
amount appropriated in the annual Budget Act and other available
county funds.
(2) Service-funded activities to be provided may be determined by
each county, based upon individual child and family needs as
reflected in the service plan.
(3) As used in this chapter, "emergency shelter care" means
emergency shelter provided to children who have been removed pursuant
to Section 300 from their parent or parents or their guardian or
guardians. The department may establish, by regulation, the time
periods for which emergency shelter care shall be funded. For the
purposes of this paragraph, "emergency shelter care" may include
"transitional shelter care facilities" as defined in paragraph (11)
of subdivision (a) of Section 1502 of the Health and Safety Code.
(b) As used in this chapter, "respite care" means temporary care
for periods not to exceed 72 hours. This care may be provided to the
child's parents or guardians. This care shall not be limited by
regulation to care over 24 hours. These services shall not be
provided for the purpose of routine, ongoing child care.
(c) The county shall provide child welfare services as needed
pursuant to an approved service plan and in accordance with
regulations promulgated, in consultation with the counties, by the
department. Counties may contract for service-funded activities as
defined in paragraph (1) of subdivision (a). Each county shall use
available private child welfare resources prior to developing new
county-operated resources when the private child welfare resources
are of at least equal quality and lesser or equal cost as compared
with county-operated resources. Counties shall not contract for needs
assessment, client eligibility determination, or any other activity
as specified by regulations of the State Department of Social
Services, except as specifically authorized in Section 16100.
(d) Nothing in this chapter shall be construed to affect duties
which are delegated to probation officers pursuant to Sections 601
and 654.
(e) Any county may utilize volunteer individuals to supplement
professional child welfare services by providing ancillary support
services in accordance with regulations adopted by the State
Department of Social Services.
(f) As used in this chapter, emergency response services consist
of a response system providing in-person response, 24 hours a day,
seven days a week, to reports of abuse, neglect, or exploitation, as
required by Article 2.5 (commencing with Section 11164) of Chapter 2
of Title 1 of Part 4 of the Penal Code for the purpose of
investigation pursuant to Section 11166 of the Penal Code and to
determine the necessity for providing initial intake services and
crisis intervention to maintain the child safely in his or her own
home or to protect the safety of the child. County welfare
departments shall respond to any report of imminent danger to a child
immediately and all other reports within 10 calendar days. An
in-person response is not required when the county welfare
department, based upon an evaluation of risk, determines that an
in-person response is not appropriate. This evaluation includes
collateral, contacts, a review of previous referrals, and other
relevant information, as indicated.
(g) As used in this chapter, family maintenance services are
activities designed to provide in-home protective services to prevent
or remedy neglect, abuse, or exploitation, for the purposes of
preventing separation of children from their families.
(h) As used in this chapter, family reunification services are
activities designed to provide time-limited foster care services to
prevent or remedy neglect, abuse, or exploitation, when the child
cannot safely remain at home, and needs temporary foster care, while
services are provided to reunite the family.
(i) As used in this chapter, permanent placement services are
activities designed to provide an alternate permanent family
structure for children who because of abuse, neglect, or exploitation
cannot safely remain at home and who are unlikely to ever return
home. These services shall be provided on behalf of children for whom
there has been a judicial determination of a permanent plan for
adoption, legal guardianship, or long-term foster care.
(j) As used in this chapter, family preservation services include
those services specified in Section 16500.5 to avoid or limit
out-of-home placement of children, and may include those services
specified in that section to place children in the least restrictive
environment possible.
(k) (1) (A) In any county electing to implement this subdivision,
all county welfare department employees who have frequent and routine
contact with children shall, by February 1, 1997, and all welfare
department employees who are expected to have frequent and routine
contact with children and who are hired on or after January 1, 1996,
and all such employees whose duties change after January 1, 1996, to
include frequent and routine contact with children, shall, if the
employees provide services to children who are alleged victims of
abuse, neglect, or exploitation, sign a declaration under penalty of
perjury regarding any prior criminal conviction, and shall provide a
set of fingerprints to the county welfare director.
(B) The county welfare director shall secure from the Department
of Justice a criminal record to determine whether the employee has
ever been convicted of a crime other than a minor traffic violation.
The Department of Justice shall deliver the criminal record to the
county welfare director.
(C) If it is found that the employee has been convicted of a
crime, other than a minor traffic violation, the county welfare
director shall determine whether there is substantial and convincing
evidence to support a reasonable belief that the employee is of good
character so as to justify frequent and routine contact with
children.
(D) No exemption shall be granted pursuant to subparagraph (C) if
the person has been convicted of a sex offense against a minor, or
has been convicted of an offense specified in Section 220, 243.4,
264.1, 273d, 288, or 289 of the Penal Code, or in paragraph (1) of
Section 273a of, or Section 368.2 or 368.3 of, the Penal Code, or has
been convicted of an offense specified in subdivision (c) of Section
667.5 of the Penal Code. The county welfare director shall suspend
such a person from any duties involving frequent and routine contact
with children.
(E) Notwithstanding subparagraph (D), the county welfare director
may grant an exemption if the employee or prospective employee, who
was convicted of a crime against an individual specified in paragraph
(1) or (7) of subdivision (c) of Section 667.5 of the Penal Code,
has been rehabilitated as provided in Section 4852.03 of the Penal
Code and has maintained the conduct required in Section 4852.05 of
the Penal Code for at least 10 years and has the recommendation of
the district attorney representing the employee's or prospective
employee's county of residence, or if the employee or prospective
employee has received a certificate of rehabilitation pursuant to
Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of
the Penal Code. In that case, the county welfare director may give
the employee or prospective employee an opportunity to explain the
conviction and shall consider that explanation in the evaluation of
the criminal conviction record.
(F) If no criminal record information has been recorded, the
county welfare director shall cause a statement of that fact to be
included in that person's personnel file.
(2) For purposes of this subdivision, a conviction means a plea or
verdict of guilty or a conviction following a plea of nolo
contendere. Any action which the county welfare director is permitted
to take following the establishment of a conviction may be taken
when the time for appeal has elapsed, or the judgment of conviction
has been affirmed on appeal or when an order granting probation is
made suspending the imposition of sentence, notwithstanding a
subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal
Code permitting the person to withdraw his or her plea of guilty and
to enter a plea of not guilty, or setting aside the verdict of
guilty, or dismissing the accusation, information, or indictment. For
purposes of this subdivision, the record of a conviction, or a copy
thereof certified by the clerk of the court or by a judge of the
court in which the conviction occurred, shall be conclusive evidence
of the conviction.
SEC. 161. Section 17001.9 of the Welfare and Institutions Code is
amended to read:
17001.9. (a) Notwithstanding any other provision of this part:
(1) As a condition of providing nonemergency medical care to an
indigent adult with a disability resident of the county, other than
an involuntary detainee or prisoner, who is a sponsored alien, a
county may require that the legal sponsor of the alien sign a written
agreement to repay any aid provided to the alien during the period
of time during which the sponsor has agreed, in writing, to provide
for the alien.
(2) To the extent not inconsistent with federal law, if a county
has provided emergency medical care to an indigent adult with a
disability resident of the county, other than an involuntary detainee
or prisoner, who is a sponsored alien, and that care was provided
during the period during which the sponsor has agreed, in writing, to
provide for the alien, the county may recover the reasonable cost of
that care from the sponsor of that alien. If the county is required
to take legal action to enforce this right to recovery, the written
promise to provide for the alien shall be considered, under state
law, to be the equivalent of a written contract to pay for that
medical care.
(3) No county shall be required to provide medical care to any
sponsored alien who is eligible, with or without a share of cost, for
participation in the California Medical Assistance (Medi-Cal)
program.
(b) This section shall not apply if the sponsoring person dies or
the sponsoring organization ceases to exist.
(c) This section shall not apply with respect to any alien who is:
(1) Admitted to the United States as a result of the application,
prior to April 1, 1980, of the provisions of Section 1153 (c) of
Title 8 of the United States Code.
(2) Admitted to the United States as a result of the application,
after March 31, 1980, of Section 1157(c) of Title 8 of the Unites
States Code.
(3) Paroled into the United States under Section 1182(d)(5) of
Title 8 of the United States Code.
(4) Granted political asylum by the United States Attorney General
under Section 1158 of Title 8 of the United States Code.
(5) A Cuban or Haitian entrant, as defined in Section 501(e) of
the Refugee Education Assistance Act of 1980 (Public Law 96-422).
(6) A minor and the sponsor or the sponsor's spouse is the parent
of the alien child.
(d) This section shall become operative on the effective date of
federal law that prohibits providing Medi-Cal assistance to sponsored
aliens, and shall remain operative only as long as federal law
remains in effect. The Director of Health Services shall determine
the operative dates of this section pursuant to this subdivision and
shall execute a declaration, that shall be retained by the director,
that sets forth the operative date or termination date.
SEC. 162. Section 17401 of the Welfare and Institutions Code is
amended to read:
17401. No lien taken by a county pursuant to Section 17109 for
care provided to a person in a county hospital shall be enforced
against the home of that person (1) during his lifetime or that of
his spouse, or (2) during the minority of his children if they reside
in the home, or (3) during the lifetime of any adult with a
disability who is a child of the person who resides in the home and
who is incapable of self-support because of mental or physical
disability.
Any lien taken by a county for county hospital care shall be
released immediately when the amount owing the county for that care
is paid. The county shall render to a person to whom care has been
provided in a county hospital a statement setting forth the charges
upon which its claim for reimbursement is based. No interest or
carrying charge shall be charged in connection with any debt incurred
for county hospital care.
If a person against whose home a lien has been imposed for county
hospital care desires to sell his home, the county shall release its
lien against the original home and transfer it to the new home,
provided that it finds that its security will not be impaired. If the
person desires to borrow money for the purpose of making
improvements to his home, using his home for security, the county
shall subordinate its lien to the mortgage or other security interest
given for the loan, if the county finds that its security will not
be impaired.
If a person against whose home a lien has been imposed for county
hospital care has the home acquired by a public entity for public
use, the county shall release its lien against the original home and
transfer it to any new home the person acquires.
No lien shall be taken pursuant to Section 17109 against the home
of a person for care provided him in a county hospital, if he was
confined to the county hospital as the result of a diagnosis of
tuberculosis.
No lien shall be taken pursuant to this part against the home or
other property of any relative, except for a parent of a minor or a
spouse, liable for the support of a person confined in a county
hospital or otherwise receiving aid under this part.
In no way do the authorizations and limitations expressed in this
section enlarge upon the power of counties to take or impose liens
under existing law. Nothing contained in this section shall be
construed to permit a county to impose a lien for aid or other
assistance granted under any public assistance program established by
this code for which federal funds are received by this state, or
under the aid to the potentially self-supporting blind program.
SEC. 163. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.