BILL NUMBER: AB 40	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 21, 2011

INTRODUCED BY   Assembly Member Yamada

                        DECEMBER 6, 2010

   An act to amend  Section 15630   Sections
15630, 15630.1, and 15631  of the Welfare and Institutions Code,
relating to elder abuse.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 40, as amended, Yamada. Elder abuse: reporting.
   The Elder Abuse and Dependent Adult Civil Protection Act
establishes various procedures for the reporting, investigation, and
prosecution of elder and dependent adult abuse. The act requires
certain persons, called mandated reporters, to report known or
suspected instances of elder or dependent adult abuse. The act
requires a mandated reporter  , and authorizes any person who is
not a mandated reporter,  to report the abuse to the local
 ombudsperson   ombudsman  or the local law
enforcement agency if the abuse occurs in a long-term care facility.
Failure to report physical abuse and financial abuse of an elder or
dependent adult under the act is a misdemeanor.
   This bill would, instead, require the mandated reporter , and
authorize any person who is not a mandated reporter,  to report
the abuse to both the local  ombudsperson  
ombudsman  and the local law enforcement agency.  This
bill would also make various technical, nonsubstantive changes.
 
   Existing law requires a mandated reporter of suspected financial
abuse of an elder or dependent adult, as defined, to report a known
or suspected instance of financial abuse, as described, to the local
ombudsman or the local law enforcement agency if the mandated
reporter knows that the elder or dependent adult resides in a
long-term care facility.  
   This bill would, instead, require the mandated reporter to report
the abuse to both the local ombudsman and the local law enforcement
agency. This bill would also make various technical nonsubstantive
changes. 
   By changing the scope of an existing crime, this bill would impose
a state-mandated local program. By increasing the duties of local
law enforcement agencies, this bill would impose a state-mandated
local program.
   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 with regard to certain mandates no
reimbursement is required by this act for a specified reason.
   With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
   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.  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 dependent
adult, 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 elder or
dependent adults, or any elder or dependent adult 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, abandonment,
abduction, isolation, financial abuse, or neglect, or is told by an
elder or dependent adult that he or she has experienced behavior,
including an act or omission, constituting physical abuse, as defined
in Section 15610.63, 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 both the local  ombudsperson
  ombudsman  and the local law enforcement agency.
   The local  ombudsperson   ombudsman  and
the local law enforcement agency shall, as soon as practicable,
except in the case of an emergency or pursuant to a report required
to be made pursuant to clause (v), in which case these actions shall
be taken immediately, do all of the following:
   (i) Report to the State Department of Public Health any case of
known or suspected abuse 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 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 Public Health and the
California Department of Aging any case of known or suspected abuse
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 Elder Abuse any
case of known or suspected criminal activity.
   (v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
   (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 Elder 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.
   (2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult 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,
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.
   (B) This subdivision shall not be construed to modify or limit a
clergy member's duty to report known or suspected elder and dependent
adult abuse if 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 dependent adult 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 elder or dependent care.
   (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 if all of the following conditions exist:
   (i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63, 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 dependent adult 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 if 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 categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care  ombudsperson 
 ombudsman  , 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 dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
   (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   ombudsman  program. Except
in an emergency, the local  ombudsperson  
ombudsman  shall report any case of known or suspected abuse to
the State Department of Public Health 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
  ombudsman  . Except in an emergency, the local
 ombudsperson   ombudsman  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) If two or more mandated reporters are present and jointly have
knowledge or reasonably suspect that types of abuse of an elder or a
dependent adult for which a report is or is not mandated have
occurred, and 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 dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other adult responsible
for the elder's or dependent adult's care, the nature and extent of
the elder's or dependent adult's condition, the date of the incident,
and any other information, including information that led that
person to suspect elder or dependent adult abuse, 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 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, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, 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, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, if 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 discovers the offense.
   (i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
   SEC. 2.    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 dependent adult" 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 dependent adult who has direct contact with the elder or
dependent adult or who reviews or approves the elder or dependent
adult's financial documents, records, or transactions, in connection
with providing financial services with respect to an elder or
dependent adult, 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 dependent adult, 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 a dependent
adult 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 dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman  or
  and  local law enforcement agency.
   (e) An allegation by the elder or dependent adult, 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 dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult 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
dependent adult reasonably believes that financial abuse of an elder
or dependent adult 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 dependent adult" 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 dependent adult is the victim of
financial abuse as defined in Section 15610.30.
   (i) Reports of suspected financial abuse of an elder or dependent
adult 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. 3.    Section 15631 of the   Welfare
and Institutions Code   is amended to read: 
   15631.  (a) Any person who is not a mandated reporter under
Section 15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse to
a long-term care ombudsman program or local law enforcement agency
 or both the long-term care ombudsman program and 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 a dependent
adult 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.
   SEC. 2.   SEC. 4.   No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution for certain costs that may be incurred by a
local agency or school district because, in that regard, 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.
   However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.