BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 40
A
AUTHOR: Yamada
B
VERSION: June 4, 2012
HEARING DATE: June 12, 2012
4
FISCAL: Yes
0
CONSULTANT: Mareva Brown
Note: As AB 40 bill has been substantially amended since it
was first heard in this committee on March 5, 2011, a new
analysis has been prepared to reflect its current language.
SUBJECT
Elder abuse reporting
SUMMARY
Requires mandated reporters of elder or dependent adult
abuse to report suspected crimes of physical abuse which
are believed to have occurred in a long-term care facility
to local law enforcement within two hours, with follow up
written reports to both the law enforcement entity and the
Long-Term Care Ombudsman (LTCO), as well as to the
appropriate licensing agency. In cases of suspected abuse
where the perpetrator has a diagnosis of dementia and the
injury is not significant, permits the mandated reporter to
determine, based upon his or her training experience,
whether to report to local law enforcement or the LTCO.
Current law requires mandated reporters of elder and
dependent adult abuse to report to either the LTCO or local
law enforcement.
ABSTRACT
Continued---
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Current Law
1.Under the Elder and Dependent Adult Civil Protection Act
(EADACPA), requires any mandated reporter Ýdefined as
any person who has assumed the care or custody of an
elder or dependent adult (compensated or not), 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] who, within the scope of his or her
employment or professional capacity, observes or has
knowledge of physical abuse, abandonment, abduction,
isolation, financial abuse, or neglect, or is told by an
elder or dependent adult, as defined, that he or she has
experienced abuse above, or reasonably suspects abuse,
to report the known or suspected abuse, to appropriate
parties, as specified below.
a. For abuse that has occurred in a long-term care
facility, except a state developmental center or
state mental health hospital, requires the mandated
reporter to make a report to the local ombudsperson
or the local law enforcement agency.
b. For suspected or alleged abuse occurring in a
state mental hospital or state developmental center,
requires the report to be made to the Department of
Mental Health or the Department of Developmental
Services, or to the local law enforcement agency.
c. For abuse that occurs any place other than what is
described above, requires the report to be made to
the adult protective services agency or the local law
enforcement agency.
1.Specifies that the known or suspected abuse shall be
reported by telephone immediately, or as soon as
practicably possible, and by a written report sent
within two working days.
2.Requires the local ombudsperson or the local law
enforcement agency to, as soon as practicable, except
immediately in the case of an emergency, report known or
suspected abuse to the appropriate state departments
(Department of Public Health, Department of Social
STAFF ANALYSIS OF SENATE BILL 40 (Yamada) Page
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Services, and the Department of Aging) with regulatory
oversight for the type of long-term care facility, as
specified. Also requires the local ombudsperson or
local law enforcement agency to make reports to the
Bureau of Medi-Cal Fraud and Elder Abuse any case of
known or suspected criminal activity, and 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.
3.Provides for exceptions to reporting, when specified
conditions have been met, and provides for civil or
criminal penalties for failure to report.
4.Provides for cross reporting between licensing entities,
county adult protective services, and ombudsmen, as
specified. Specifically requires local law enforcement
to cross report to the local ombudsman for cases in a
long-term care facility.
5.Establishes the Long-Term Care Ombudsman program under
the Older Americans Act (OAA) and places it within the
California Department of Aging (CDA) under the Older
Californians Act (OCA) in order to encourage community
contact and involvement with elderly patients or
residents of long-term care facilities or residential
facilities through the use of volunteers and volunteer
programs. Federal law generally prohibits ombudsman from
making a disclosure of personal information pertaining to
an ombudsman program client, unless the client provides
written consent.
6.Establishes within the federal Patient Protection and
Affordable Care Act of 2010 the Elder Justice Act of 2009
(EJA), with specified reporting requirements. (42 U.S.C.
§1320b-25) Among these is:
a. A mandate that specified individuals report to
local law enforcement any reasonable suspicion of a
crime against any individual who is a resident of, or
receiving care from, a long term care facility as
follows:
i) If the events that cause the suspicion result
in serious bodily injury, the individual shall
report the suspicion immediately, but not later than
STAFF ANALYSIS OF SENATE BILL 40 (Yamada) Page
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two hours after forming the suspicion.
ii) If the events that cause the suspicion do not
result in serious bodily injury, the individual
shall report the suspicion not later than 24 hours
after forming the suspicion.
b. Requires that skilled nursing facilities that
receive at least $10,000 in federal Medicare and
Medicaid funds are bound by these reporting
requirements.
7.Provides in state law that any person who is not a
mandated reporter who knows, or reasonably suspects, that
an elder or a dependent adult has been the victim of
abuse in a long-term care facility may report that abuse
to a long-term care ombudsman program or local law
enforcement agency.
This bill:
1.Requires mandated reporters to report physical abuse, as
defined, which occurs within a long-term care facility,
except a state mental hospital or state developmental
center, to local law enforcement by telephone within two
hours, with the required written follow-up report to be
sent to both the law enforcement agency and the LTCO
within 24 hours, as well as to the appropriate licensing
agency.
2.Defines those crimes that must be reported to law
enforcement, at a minimum, to include those defined in
WIC 15610.63, which include assault, battery, sexual
assault, unreasonable physical restraint, improper use of
a physical or chemical restraint or psychotropic drugs,
as specified, and other related crimes.
3.Specifies that, when applicable, reports made pursuant to
this section shall be deemed as satisfying the following
reporting requirements:
a. The federal Elder Justice Act of 2009
b. Incident reports, including abuse, that are
required by state law to be made to licensing agencies
pursuant to HSC 1418.91
c. Reports to licensing pursuant to California Code of
Regulations Title 22, § 72541, which require
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facilities to report to licensing unusual incidents
including fires, epidemic outbreaks, major accidents
and other incidents.
4.Requires that local law enforcement agencies, upon
receiving a report of suspected abuse from a mandated
reporter in a long term care facility, shall coordinate
efforts with the local ombudsman to provide the most
immediate and appropriate response warranted.
5.Permits local ombudsman offices and local law enforcement
agencies to develop protocols to implement the
collaboration required by this section.
6.In situations where the suspected abuse is allegedly
caused by a resident with a physician's diagnosis of
dementia, and the mandated reporter determines there is
no significant or substantial injury, as specified, the
reporter shall report either to the local law enforcement
agency or the LTCO, as specified.
7.Requires that if the suspected abuse is other than
physical abuse, the mandated reporter in a long-term care
facility shall report by telephone and written report to
either the local ombudsman or local law enforcement
agency.
8.Adds the option for reporting to both the LTCO and law
enforcement for persons who are not mandated reporters
who suspect that an elder or a dependent adult has been
the victim of abuse in a long-term care facility.
FISCAL IMPACT
According to the Assembly Appropriations Committee, costs
associated with the ombudsman receiving additional
complaints would be minor and absorbable within existing
resources, while minor non-reimbursable costs would accrue
to local government for additional enforcement, offset to
some extent by additional fine revenues.
BACKGROUND AND DISCUSSION
Author's statement
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The author states that the State Long-term Care Ombudsman
program operates under two conflicting mandates: federal
law prohibits any disclosure of personal information
pertaining to an ombudsman program client, unless the
client provides written consent; while state law mandates
cross reporting of abuse reports with local law
enforcement, in order to assure resolution. The author
asserts that this conflict is causing criminal abuse and
neglect to persist, because ombudsman employees and
volunteers are unable to share the contents of their
reports with law enforcement. The author highlights that
the consent issue is exacerbated by the high number of
long-term care facility residents-up to 65 percent, who
have diminished capacity and are unable to provide consent.
Ombudsman and elder and dependent adult abuse reporting
The state's Long-Term Care Ombudsman program is
administered through the California Department of Aging 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 to carry-out their duties. According to the CDA
website, 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 residents of long-term care
facilities.
In April 2010, Disability Rights California, Investigations
Unit, issued a report that documented several problems with
elder and dependent adult abuse reporting and investigation
in nursing homes, which are one type of long-term care
facility. Of the findings, the report stated that reports
of criminal abuse are frequently made to the long-term care
ombudsman and are never referred to law enforcement, and
criminal investigations are not thorough and produce
insufficient evidence for prosecution. In several of its
case studies, it appeared that physical evidence was not
gathered in a timely way, which weakened evidence
sufficient for prosecution.
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In November 2009, the California State Senate Office of
Oversight and Outcomes (SOOO), a non-partisan team from the
office of the Senate President pro Tempore that
investigates and measures government performance, issued a
47-page report entitled, California's Elder Abuse
Investigators: Ombudsmen Shackled by Conflicting Laws and
Duties, highlighting the role of the ombudsman in
investigating instances of abuse and its inherent
limitations, due to consent requirements for ombudsman
under federal law, among other factors. The report noted:
Over three decades, the state has strayed far
from the original intent of the federal
program. The Older Americans Act envisioned ombudsmen
as advocates for the elderly
in nursing homes, listening to their concerns and
working with administrators to improve
living conditions. Like all the states, California
established its own ombudsman program
with the help of federal funding.
In the 1980s, the state made ombudsmen key
players in another new initiative
- requiring health care professionals and others who
work in facilities to report
suspected abuse and neglect. Ombudsmen became legally
responsible for receiving and
investigating these mandated reports. But there was a
hitch: they were also bound by a
requirement in the federal law to obtain consent from
long-term care residents before
releasing their names or forwarding their complaints
to other agencies.
The conflict put ombudsmen in the difficult
position of knowing about abuse or neglect, but being
forced by federal law to remain silent. The state
long-term care ombudsman's office found that
three-quarters of residents who made abuse and neglect
complaints refused to consent to release of their
identities. California is one of only four states
that put ombudsmen in this bind. The rest rely
instead on Adult Protective Services, state agencies
that license long-term care facilities, or others not
constrained by the consent requirement in the Older
Americans Act. ÝEmphasis added.]
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Additionally, the report noted several other problems that
hindered prompt and thorough reporting of abuse and
neglect. Among them:
While some local programs ban volunteers from
doing these complex
investigations, others rely on them, raising questions
about whether they are
qualified or prepared to handle such high-stakes
cases. Volunteers themselves
report feeling overwhelmed. They also feel torn by
their dual roles. They work
with facilities to correct the everyday problems faced
by residents. Yet they must
act as adversaries of those facilities in abuse and
neglect investigations.
Until last month, the state ombudsman
interpreted federal law to require consent
from witnesses, including the alleged abuser, before
ombudsmen could forward
full reports to outside agencies. This interpretation
put California at odds with
other states and went beyond what the federal
government itself says the law
requires. It further handcuffed local programs
charged with handling serious
abuse and neglect complaints. The state still has not
revised its erroneous view
that witnesses have the right to block the forwarding
of full reports, but as a result
of this investigation, that interpretation is under
review.
In the absence of regulations or other
guidance, local ombudsman programs have
widely varying understandings of the state office's
requirements. Many fail to get
consent at all, even from the long-term care resident.
Some intentionally ignore
consent requirements when they consider the case too
serious. Others, including
volunteers, simply don't know the rules. The state
ombudsman says the office
failed to follow its own five year plan and state law
requiring regulations because
the department lacks a regulation writer. The office
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submitted regulations ten
years ago, but the Office of Administrative Law found
them deficient, and they
were never revised.
In its review of other states, the SOOO report stated that,
"California is almost alone among the states in depending
on ombudsmen to investigate mandated reports." Recent data
show that ombudsmen receive more than 50,000 complaints
statewide. Between 6,400 and 7,100 involve abuse or
neglect.
The Disability Rights California report made several
recommendations to improve abuse reporting and
investigation, including a recommendation to report to law
enforcement and the ombudsman. The SOOO report also
recommended the Legislature consider dual reporting to
these two entities; however, this recommendation was in
addition to several alternative options, such as
centralized reporting, dual reporting to different
entities, prohibiting ombudsman volunteers from conducting
investigations, as well as other complementary (rather than
alternative) recommendations.
Other groups have also weighed in. Some recommend dual
reporting to the licensing agency and local law
enforcement. Yet others are proponents of a centralized
reporting entity, such as a licensing agency or adult
protective services, which could disseminate information as
needed.
Related legislation
SB 110 (Liu) chapter 617, Statutes of 2010, requires law
enforcement to retain exclusive responsibility for criminal
investigations against elders, dependent adults and persons
with disabilities when Adult Protective Services and local
ombudsman are conducting concurrent investigations.
SB 718 (Vargas) of 2011 allows mandated reporters of elder
and dependent adult abuse to make reports through the
Internet, as specified. Died in Senate Appropriations.
AB 1765 (Blakeslee) of 2008 required a mandated reporter in
a long term care facility report suspected abuse to both
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the adult protective services agency and the local law
enforcement agency.. Hearing cancelled at author's
request.
AB 2100 (Wolk), Chapter 481, Statutes of 2008, requires the
local ombudsperson or local law enforcement to whom a case
of abuse against an elder or dependent adult has been
reported, in addition to existing reporting requirements,
to 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. ÝThis is an example
of another conflicting mandate for ombudsmen, when consent
cannot be obtained.]
PRIOR VOTES
Assembly Floor: 58 - 18
Assembly Appropriations:17 - 0
Assembly Public Safety: 6 - 0
Assembly Aging & LTC: 4 - 2
QUESTIONS & COMMENTS
As AB 40 was originally heard in this committee, it would
have required mandated reporters in long term care
facilities to report suspected abuse of any kind to both
the local law enforcement agency and the LTCO.
The original analysis of this bill recommended that the
author amend AB 40 to require mandated reporters report
incidents to the local law enforcement agency, with
permission to also report to the ombudsman to avoid dual
reporting. It suggested reports made by Adult Protective
Services, which currently are required to be reported to
law enforcement or the LTCO, be made directly to law
enforcement, with permission to also report to the LTCO.
The original analysis also raised concerns about lack of
coordination among responding agencies, as follows:
1.Interaction between ombudsman and law enforcement is
lacking. The bill requires dual reports to be made; yet,
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the bill does not provide for any interaction between
ombudsman and law enforcement, which appears to be
necessary as the ombudsman is considered the residents'
advocate. When law enforcement is called 100 percent of
the time, such interaction with the local ombudsman can
be considered paramount in cases involving residents who
have dementia. Additionally, both local law enforcement
and local ombudsmen have many tasks and few resources.
The scope of their duties allows them to play different
roles and fulfill different functions in dealing with a
suspected or known case of abuse. Interaction and
coordination between the two parties can reduce confusion
and duplication of effort. In child welfare services,
such responses to abuse are coordinated between county
child welfare departments, local law enforcement, and
licensing agencies.
2.With greater coordination, dual may be reporting
unnecessary. Statute requires local law enforcement to
cross-report to the ombudsman when suspected or known
abuse occurs in a long-term care facility. If
coordination between local law enforcement and the
ombudsman is also required, a single report to law
enforcement may suffice, as both parties would have
access to the same information, while alleviating
mandated reporters from making two phone calls, followed
by two reports.
In response to these concerns, staff recommended adding the
following language:
(1) When a local law enforcement agency receives an
initial report of suspected abuse in a long-term care
facility, pursuant to 15630 or 15630.1, 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. If the mandated report involves a
resident with dementia, or otherwise involves a
resident who does not have decision-making capacity,
the local law enforcement agency shall work
collaboratively with the local ombudsman in the
response to the mandated report. The State Long-Term
Care Ombudsman may develop protocols, in collaboration
with law enforcement entities, to implement this
STAFF ANALYSIS OF SENATE BILL 40 (Yamada) Page
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section.
Responding to concerns raised by the analysis and
stakeholders, the author amended the bill and convened
several stakeholder meetings. The result was a decision to
align reporting with the Elder Justice Act of 2009.
Current amendments modify the original bill in the
following ways:
1. Requires a single initial telephone report be made
to law enforcement rather than requiring that mandated
reporters report to both law enforcement and the
ombudsman. Requires the subsequent written report
shall be made to both law enforcement and the
ombudsman, as well as to licensing. This enables the
ombudsman to discuss the case with law enforcement
without requiring the victim's authorization.
2. Conforms reporting requirements for long term care
facilities with those of Elder Justice Act by imposing
a two-hour window on initial telephone reports in
instances involving suspected physical abuse, and
shortening the follow-up written report deadline from
48 to 24 hours. Federal law requires that Skilled
Nursing Facilities receiving at least $10,000 in
medical or Medicare funds must comply with this
requirement, which specifies the report must go to law
enforcement. This bill would extend these reporting
requirements to other types of long term care
facilities.
3. Defines those crimes required to be reported to law
enforcement as those in WIC 15610.63, which are crimes
of physical abuse. The prior version did not limit
the nature of crimes to be reported.
4. Removes all language mandating reporting by banking
and financial institutions.
5. Requires law enforcement and the local ombudsman
coordinate on suspected crimes of abuse in long term
care facilities, and specifies there must be
collaboration between the two entities in cases
involving a client with dementia or who otherwise
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lacks decision-making capacity. Permits the
development of MOUs between the ombudsman and law
enforcement to fulfill this requirement. This reflects
language recommended in the original staff analysis.
6. In situations where the suspected abuse is
perpetrated by a resident with a physician's diagnosis
of dementia, and there is no significant or
substantial injury, permits mandated reporters, based
on their training and experience, to report to the
LTCO or local law enforcement, as is current law and
practice.
Additional recommendations
The Elder Justice Act requires reporting to law enforcement
within two hours for crimes that involve "serious bodily
injury," with a follow-up report required within 24 hours.
It requires that crimes involving less than serious bodily
injury be reported to law enforcement within 24 hours. This
bill requires all suspected crimes of physical abuse -
regardless of the nature of the injury - to be reported
within two hours. The California Association of Health
Facilities argued that this language would result in
over-reporting of crimes to law enforcement and lessen the
chance of coordination with the ombudsman on lesser
incidents. Conforming this language to the Elder Justice
Act removes CAHF's opposition to the bill.
Staff recommends the following amendment:
(A) 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, the following shall occur:
(i) If the suspected abuse results in serious bodily
injury, 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 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
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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.
(ii) If the suspected abuse does not result in serious
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.
(ii) (iii) In lieu of the procedure described in
clause (i), W hen 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 s (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 15630(b)(1)(A) , 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.
POSITIONS
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Support: American Federation of State, County and
Municipal Employees
California Advocates for Nursing Home Reform
California Association of Health Facilities
California Long-Term Care Ombudsman
Association
California School Employees Association
Catholic Charities Diocese of Stockton
Congress of California Seniors
Consumer Federation of California
Crime Victims United of California
Disability Rights California
Fresno Madera Ombudsman Program
Long Term Care Ombudsman Services of San
Luis Obispo County
National Association of Social Workers
Office of the State Long-Term Ombudsman
Ombudsman Services of Contra Costa
Ombudsman Services of Northern California
Ombudsman Program of Lake and Mendocino
Counties
Ombudsman Services of Northern California in
Placer County
The Arc and United Cerebral Palsy in
California
Oppose: None received
-- END --