BILL NUMBER: AB 40	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JUNE 18, 2012
	AMENDED IN SENATE  JUNE 4, 2012
	AMENDED IN SENATE  MARCH 21, 2012
	AMENDED IN ASSEMBLY  MARCH 21, 2011

INTRODUCED BY   Assembly Member Yamada

                        DECEMBER 6, 2010

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


	LEGISLATIVE COUNSEL'S DIGEST


   AB 40, as amended, Yamada. Elder and dependent adult 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 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 require that  , if the suspected abuse results
in serious bodily injury,  a mandated reporter make a telephone
report to report suspected or alleged physical abuse, as defined,
that occurs in a long-term care facility, to the local law
enforcement agency, within 2 hours of the reporter observing,
obtaining knowledge of, or suspecting the physical abuse. The bill
would require that a written report be made to the local ombudsman,
the corresponding licensing agency, and the local law enforcement
agency within 24 hours of the reporter observing, obtaining knowledge
of, or suspecting the physical abuse.  The bill would require
that, if the suspected abuse does not result in serious bodily
injury, a mandated reporter make a report by telephone and in writing
within 24 hours of the reporter observing, obtaining knowledge of,
or suspecting the physical abuse, as specified. 
   Existing law authorizes a mandated reporter who has knowledge, or
reasonably suspects, that types of elder or dependent adult abuse for
which reports are not mandated occurred in a state mental hospital
or a state developmental center, to report 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 ombudsman.
   This bill would delete the local ombudsman from the list of
persons to whom the mandated reporter may report under these
circumstances. This bill would authorize a person who is not a
mandated reporter to report suspected or alleged abuse that occurred
in a long-term care facility to both a long-term care ombudsman
program or local law enforcement agency.
   By changing the scope of an existing crime, this bill would impose
a state-mandated local program. By increasing the duties of local
officials, 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 or through a
confidential Internet reporting tool, as authorized by Section 15658,
immediately or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report
shall be made through the confidential Internet reporting tool
established in Section 15658, within two working days  , as
follows:   . 
   (A)  (i)    If the suspected or
alleged abuse is physical abuse, as defined in Section 15610.63, and
the abuse occurred in a long-term care facility, except a state
mental health hospital or a state developmental center,  a
  the following shall occur: 
    (i)     If the suspected abuse results in
serious bodily injury, a  telephone report shall be made to the
local law enforcement agency within two hours of the mandated
reporter observing, obtaining knowledge of, or suspecting the
physical abuse, and a written report shall be made to the local
ombudsman, the corresponding licensing agency, and the local law
enforcement agency within 24 hours of the mandated reporter
observing, obtaining knowledge of, or suspecting the physical abuse.
 When  
   (ii) If the suspected abuse does not result in great bodily
injury, a telephone report shall be made to the local law enforcement
agency within 24 hours of the mandated reporter observing, obtaining
knowledge of, or suspecting the physical abuse, and a written report
shall be made to the local ombudsman, the corresponding licensing
agency, and the local law enforcement agency within 24 hours of the
mandated reporter observing, obtaining knowledge of, or suspecting
the physical abuse.  
   (iii) When the suspected abuse is allegedly caused by a resident
with a physician's diagnosis of dementia, and there is no significant
or substantial injury, as reasonably determined by the mandated
reporter, drawing upon his or her training or experience, the
reporter shall report to the local ombudsman or law enforcement
agency by telephone, in writing, or through the confidential Internet
reporting tool established in Section 15658, within two working
days. 
    (iv)     When  applicable, reports
made pursuant to  this subparagraph   clauses
(i) and (ii)  shall be deemed to satisfy the reporting
requirements of the federal Elder Justice Act of 2009, Subtitle H of
the federal Patient Protection and Affordable Care Act (Public Law
111-148), Section 1418.91, and 22 CCR 72541. When a local law
enforcement agency receives an initial report of suspected abuse in a
long-term care facility pursuant to this  paragraph
  subparagraph  , the local law enforcement agency
shall coordinate efforts with the local ombudsman to provide the most
immediate and appropriate response warranted to investigate the
mandated report. The local ombudsman and local law enforcement
agencies may collaborate to develop protocols to implement this
subparagraph. 
   (ii) In lieu of the procedure described in clause (i), when the
suspected abuse is allegedly caused by a resident with a physician's
diagnosis of dementia, and there is no significant or substantial
injury, as reasonably determined by the mandated reporter, drawing
upon his or her training or experience, the reporter shall report to
the local ombudsman or law enforcement agency by telephone, in
writing, or through the confidential Internet reporting tool
established in Section 15658, within two working days. 
   (B) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, or any other law, the department may implement
subparagraph (A), in whole or in part, by means of all-county
letters, provider bulletins, or other similar instructions without
taking regulatory action.
   (C) If the suspected or alleged abuse is abuse other than physical
abuse, as defined in Section 15610.63, and the abuse occurred in a
long-term care facility, except a state mental health hospital or a
state developmental center, a telephone report and a written report
shall be made to the local ombudsman or the local law enforcement
agency.
   The local 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.
   (D) 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.
   (E) 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 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
ombudsman program. Except in an emergency, the local 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. Except in an emergency, the local
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 or
Internet report, as authorized by Section 15658, 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 or Internet report, as authorized by
Section 15658, 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 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. 3.  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.