BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 40| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 40 Author: Yamada (D) Amended: 8/23/12 in Senate Vote: 21 SENATE HUMAN SERVICES COMMITTEE : 7-0, 6/12/12 AYES: Liu, Emmerson, Berryhill, Hancock, Strickland, Wright, Yee SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/16/12 AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price, Steinberg ASSEMBLY FLOOR : 58-18, 5/23/11 - See last page for vote SUBJECT : Elder and dependent adult abuse: reporting SOURCE : Author DIGEST : This bill 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 CONTINUED AB 40 Page 2 enforcement or the LTCO. Existing law requires mandated reporters of elder and dependent adult abuse to report to either the LTCO or local law enforcement. Senate Floor Amendments of 8/23/12 address chaptering conflicts with SB 1051 (Liu). ANALYSIS : 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 requires that, if the suspected abuse results in serious bodily injury, as defined, 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, immediately, and no later than within two hours of the reporter observing, obtaining knowledge of, or suspecting the physical abuse. This bill requires that a written report be made to the local ombudsman, the corresponding licensing agency, and the local law enforcement agency within two hours of the reporter observing, obtaining knowledge of, or suspecting the physical abuse. This bill requires 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 CONTINUED AB 40 Page 3 investigator of the State Department of State Hospitals or the State Department of Developmental Services or to a local law enforcement agency or to the local ombudsman. This bill deletes the local ombudsman from the list of persons to whom the mandated reporter may report under these circumstances. This bill authorizes 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. According to the staff of the Assembly Aging and Long Term Care Committee: Originally introduced to overcome a conflict of mandates within the Ombudsman program. Federal authorization imposes a strict confidentiality standard under which, no personally identifying information acquired during a complaint investigation may be released by the Ombudsman program to anyone (including law enforcement) without the written consent of the subject of the report. 70%+ of people living in long-term care facilities have limited capacity to give consent. So, when criminal level reports of abuse are reported to the Ombudsman, that information typically stays with the Ombudsman, and a criminal investigation never takes place, justice is not attained. Since AB 40 introduction, a new reporting protocol has been promulgated as a result of the federal "Elder Justice Act." This new protocol-specific to nursing homes -requires that criminal level abuse be reported to law enforcement-not the Ombudsman. So, while in the Senate, a stake-holder process was undertaken to use AB 40 codify the Elder Justice Act protocol into California's reporting statutes. The result is a compromise that everyone involved agreed to, and it greatly improves reporting of criminal level abuse. Under AB40: Acts of criminal abuse (those incidents described in 15610.63 + abandonment, abduction, isolation, CONTINUED AB 40 Page 4 financial abuse or neglect) must be reported to law enforcement within 2 hours if there is serious bodily injury, otherwise 24 hours, and follow-up written reports must be made to the licensing agency, law enforcement, and Ombudsman-this overcomes the confidentiality barrier because everyone gets the same information at the same time-this is a federal requirement under the Elder Justice Act which we are codifying into state statute. We then extend that reporting protocol via state law from nursing homes only, to nursing homes and assisted living/RCFEs-so one protocol for the entire continuum of long-term care facilities. We also streamline the reporting process. When a report is made under this protocol, the "incident report" required of the facility need not be made-this is because the licensing agency already gets the written report, so we eliminate a redundant reporting mandate. We also carve out incidents between demented individuals that do not result in injury-agitation and aggressiveness are known symptoms of dementia, and residents often interact with each other which could result in a slap, or a shove-we exempt these incidents from this reporting protocol-though reports are still required-just not under the new aggressive protocol. They are reported under existing protocol. We encourage the Ombudsman and Law Enforcement to collaborate on the most appropriate immediate response-sometimes, law enforcement is not necessary and Ombudsman can make the initial response. Upon their assessment, they can determine whether law enforcement's involvement is necessary. We also define "Serious Bodily Injury" using the Elder Justice Act definition. For all other incidents that warrant a report, the protocol remains the same-no changes. CONTINUED AB 40 Page 5 Background Ombudsman and elder and dependent adult abuse reporting . The state's LTCO program is administered through the Department of Aging and 35 local programs contracted through the network of local area agencies on aging. 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 Department of Aging'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 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 LTCO 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. In November 2009, the California State Senate Office of Oversight and Outcomes, 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes CONTINUED AB 40 Page 6 According to the Senate Appropriations Committee: One-time minor costs for the Department of Social Services and Department of Public Health to develop instructions to implement the revised reporting requirements. Potential cost pressure on state agencies to provide training/guidance to ombudsmen and mandated reporters on the revised reporting requirements. Non-reimbursable local enforcement costs associated with increased investigation of elder abuse reports offset to a degree by fine revenue. Ongoing costs to the Judicial Branch, potentially in the range of $25,000 to $50,000 (General Fund) for additional misdemeanor and felony court filings. Potential ongoing increased local and state incarceration costs in excess of $100,000 statewide to the extent the provisions of this bill result in a significant increase in reports to law enforcement and subsequent prosecutions. SUPPORT : (Verified 8/16/12) AFSCME 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 Program of Lake and Mendocino Counties Ombudsman Services of Contra Costa Ombudsman Services of Northern California CONTINUED AB 40 Page 7 Ombudsman Services of Northern California in Placer County The Arc and United Cerebral Palsy in California ARGUMENTS IN SUPPORT : The author's office states that the State LTCO 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's office 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's office highlights that the consent issue is exacerbated by the high number of long-term care facility residents-up to 65%, who have diminished capacity and are unable to provide consent. ASSEMBLY FLOOR : 58-18, 5/23/11 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani, Gatto, Gordon, Hagman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning, Nestande, Perea, V. Manuel Pérez, Portantino, Skinner, Solorio, Swanson, Torres, Wieckowski, Williams, Yamada, John A. Pérez NOES: Conway, Donnelly, Beth Gaines, Garrick, Grove, Halderman, Jones, Knight, Logue, Mansoor, Miller, Morrell, Nielsen, Norby, Silva, Smyth, Valadao, Wagner NO VOTE RECORDED: Cook, Gorell, Olsen, Pan CTW/DLW:dmd 8/24/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED AB 40 Page 8 CONTINUED