BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                    AB 40|
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                                 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 
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          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 

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          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, 

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                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.


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           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


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          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

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          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

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