BILL ANALYSIS Ó
AB 40
Page 1
Date of Hearing: May 3, 2011
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 40 (Yamada) - As Amended: March 21, 2011
SUMMARY : Requires mandated reporters of elder and dependent
adult abuse, if the abuse occurs in a long-term care facility,
to report known or suspected instances of abuse and neglect to
both the local ombudsman and the local law enforcement agency;
requires mandated reports of financial abuse of an elder or
dependent adult to also report known or suspected financial
abuse to both the local ombudsman and the local law enforcement
agency; and makes conforming changes.
EXISTING LAW :
1)Defines a "mandated reporter" as any person who has assumed
the care or custody of an elder or dependent adult, including
administrators, supervisors, or licensed staff of a public or
private facility that provides care to elder or dependent
adults, elder or dependent adult care custodian, health
practitioner, clergy member, employee of county adult
protective services, or a local law enforcement agency.
ÝWelfare and Institutions Code (WIC) Section 15630(a)(1).]
2)Requires any mandated reporter under the Elder Abuse and Adult
Civil Protection Act who, within the scope of his or her
employment, observes, has knowledge of physical abuse,
financial abuse or neglect, or is told by an elder or
dependent adult that he or she has experienced abuse, or
reasonably suspects abuse, to immediately report the known or
suspected abuse, as specified. ÝWIC Section 15630(b)(1).]
3)Provides that if the abuse has occurred in long-term care
facility, except a state mental hospital or developmental
center, the report shall be made to the local ombudsperson or
the local law enforcement agency. ÝWIC Section
15630(b)(1)(a).]
4)Provides that failure to report elder abuse under the mandated
AB 40
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reporting requirement is a misdemeanor, punishable by
imprisonment in the county jail not to exceed six months; by a
fine of not more than $1,000; or by both. Failure to report
abuse that results in a death or great bodily injury shall be
punished by imprisonment in the county jail not to exceed one
year; by a fine not to exceed $5,000; or by both. ÝWIC
Section 15630(h).]
5)Defines "mandated reporter of suspected financial abuse of an
elder or dependent adult" to mean all officers and employees
of financial institutions. ÝWIC Section 15630l.1(a).]
6)Defines "financial institution as a depository institution, an
institution-affiliated party, or a federal, state or
institution-affiliated party credit union. ÝWIC Section
15630l.1(b).]
7)States that "financial abuse" of an elder or dependent adult
occurs when a person or entity does any of the following:
a) Takes, secretes, appropriates, or retains real or
personal property of an elder or dependent adult to a
wrongful use or with intent to defraud, or both; or,
b) Assists in taking, secreting, appropriating, or
retaining real or personal property of an elder or
dependent adult to a wrongful use or with intent to
defraud, or both. ÝWIC Section 15630l.1(c).]
8)Provides that 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's 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 and 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 practice, that reasonably appears to be
financial abuse, or who reasonably suspects that abuse based
upon the information before him or her standing alone, 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 or the local law enforcement agency.
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ÝWIC Section 156301.1(d).]
9)Provides that if the mandated reporter knows that an elder or
dependent adult resides in a long-term facility, the report of
known or suspected financial abuse shall be made to the local
ombudsman or local law enforcement. ÝWIC Section
15630.1(d)(3).]
10)Specifies that 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 if both of the
following conditions are met:
a) The mandated reporter is aware of no other corroborating
or independent evidence of the alleged abuse; and,
b) In the exercise of his or her professional judgment, the
mandated reporter reasonably believes that the abuse did
not occur. ÝWIC Section 15630.1(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 40 requires
mandated reporters to report physical abuse which occurs
within a long-term care facility, and financial abuse of a
resident of a long-term care facility, to both the local
Long-Term Care Ombudsman (LTCO) and local law enforcement.
Current law requires a mandated reporter to report to the
local LTCO or local law enforcement."
2)Background : The LTCO program is administered through the
California Department of Aging (CDA) and 35 local programs
contracted through the network of local area agencies on aging
(AAA). The program utilizes approximately 950 volunteers and
155 paid full-time and part-time staff to serve as
resident/patient advocates of residents in over 9,000
long-term care facilities. Volunteers initially receive a
minimum of 36 hours of training. According to CDA's Web site,
the primary responsibility of the program is to investigate
and endeavor to resolve complaints made by, or on behalf of,
individual residents in long-term care facilities. The goal
of the program is to advocate for the rights of all long-term
care facility residents.
AB 40
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According to the author, the LTCO program is operating under
conflicting mandates. Under the OAA mandate, LTCO serves as a
resident advocate and is prohibited from disclosing
information on reports of abuse to any person without the
written consent of the subject of the report. However, under
California's mandated reporting laws, LTCO is required to
receive and initiate investigations of reports of abuse. The
author contends that the LTCO is not designed to carry-out
investigative roles due to LTCO's federal prohibition from
disclosing information on reports - a prohibition which
precludes reporting to law enforcement and licensing agencies
even when the subject's well-being may be in jeopardy.
Without the consent of the resident involved, or his or her
legal representatives, criminal activities that would
otherwise be subject to swift and decisive action by law
enforcement and licensing agencies is left to the advocacy
devices of volunteers.
The Welfare and Institutions Code acknowledges the conflict, yet
affirms that LTCO can only cross-report with the consent of
the resident ÝWIC Section 15640(d)], further stating that 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."
According to the author, this becomes particularly troubling
in abuse cases reported to the LTCO where the victim is unable
to offer consent to share information with law enforcement
personnel in order to complete a thorough investigation and
secure justice; a loophole is created which allows criminal
activity to go unchecked.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Health Care Districts
California District Attorneys Association
Crime Victims United of California
Disability Rights California
Los Angeles County District Attorney's Office
AB 40
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Opposition
California Association of Health Facilities
California Association of Marriage and Family Therapists
California Hospital Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744