BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 367
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          Date of Hearing:   April 12, 2011

                   ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
                                Mariko Yamada, Chair
                  AB 367 (Smyth) - As Introduced:  February 14, 2011
           
          SUBJECT  :   Elder and Dependent Adult Abuse Reporting

           SUMMARY  :   This bill allows mandated and non-mandated reporters 
          of elder and dependent adult abuse to report suspected elder and 
          dependent adult abuse occurring within a community to any Adult 
          Protective Services (APS) agency or law enforcement agency, 
          regardless of whether the agency lacks geographical or subject 
          matter jurisdiction or obligation to receive the report.  
          Specifically,  this bill  :   

          Permits mandated and other reporters of elder and dependent 
          adult abuse to report to any APS agency or law enforcement 
          agency, regardless of subject matter or geographical 
          jurisdiction. 

          Requires APS agencies and law enforcement agencies to accept a 
          report of elder or dependent adult abuse, even if they lack 
          subject matter or geographical jurisdiction, unless that agency 
          can immediately transfer the call to an agency with proper 
          jurisdiction.      

          Provides that if an agency outside the jurisdiction of the 
          report about a case of elder or dependent adult abuse accepts 
          the report, the agency shall immediately refer the case by 
          phone, fax, or "electronic transmission" to the appropriate 
          agency.

           EXISTING LAW  
           
          1.Defines a "mandated reporter" as any person who has assumed 
            the care or responsibility of an elder, or the care or 
            responsibility for "dependent adults," as well as, 
            administrators, supervisors and licensed staff in care 
            facilities, health care providers, the clergy, APS staff and 
            law enforcement.

          2.Defines "physical abuse," "abandonment," "abduction," 
            "isolation," "financial abuse and neglect" for purposes of 
            elder and dependent adult abuse reporting. 








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          3.Requires mandated reporters to report physical abuse, 
            abandonment, abduction, isolation, financial abuse or neglect.

          4.Requires mandated reporters to report to the local APS agency 
            or local law enforcement when the abuse, abandonment, 
            abduction, isolation, financial abuse or neglect occurs in the 
            community.  

          5.Requires mandated reporters to report to the local ombudsman 
            office or law enforcement if abuse, abandonment, abduction, 
            isolation, financial abuse or neglect occurred in a long-term 
            care facility. 

          6.Provides that failure to report elder abuse under the mandated 
            reporting requirements is a misdemeanor, and punishable by up 
            to six months in a county jail, by a fine of up to $1,000, or 
            both.  Failure to report abuse that results in a death or 
            great bodily injury may result in up to one year in a county 
            jail, a fine of up to $5,000, or both.   

          7.Defines an elder as any person residing in this state who is 
            65 years of age or older.  

          8.Defines "dependent adult" as any person between the ages of 18 
            and 64 who resides in this state and who has physical or 
            mental limitations that restrict his or her ability to carry 
            out normal activities or to protect his or her rights, such 
            as: persons who have physical or developmental disabilities or 
            whose physical or mental abilities have diminished because of 
            age.    

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Need for the bill
           The author states that AB 367 is needed because it "...seeks to 
          ease the reporting process in cases of suspected elder abuse."  
          The author states that reporters can get referred and 
          re-referred between agencies when jurisdiction is not clear.  In 
          order to support reporters, the author is proposing a new code 
          section that directs agencies "lacking subject matter or 
          geographical jurisdiction" to accept those reports, perform 
          research to determine the appropriate agency with jurisdiction 
          and the appropriate agency's contact information, then refer 
          those reports to the appropriate agency.







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           The author's statement reads as follows: 
           "When reporting a case of elder or dependent adult abuse, 
          mandated reporters may be sent from agency to agency, forced to 
          navigate local and county bureaucracies. For example, if the 
          suspected abuser lives out of the reporter's area, or even if 
          the investigation will be conducted out of this area, the 
          reporter is forced to expend valuable time and resources 
          tracking down the appropriate authority. Sadly, this 
          time-consuming obstacle can impede the prompt reporting of 
          suspected abuse.
               
          "Assembly Bill 367 alleviates this problem by applying to elder 
          and dependent adult abuse reporting a provision already used in 
          child abuse cases. With respect to child abuse and neglect, 
          current law requires that an abuse report be taken by an agency 
          that takes reports of child abuse and requires that agency to 
          refer the matter to an agency with proper jurisdiction (Penal 
          Code Section 11165.9). 
               
          "Similarly, this bill would require a county adult protective 
          services agency or a local law enforcement agency to accept a 
          report of suspected elder or dependent adult abuse to 
          immediately transfer or refer the report to an agency with 
          proper jurisdiction.

           Supporters Argue
           AB 367 assures those reports that are otherwise not investigated 
          because of a lack of jurisdiction, will be investigated because 
          the bill would insure that those reports are referred to the 
          correct agency, and it alleviates a mandated reporter's problem 
          of being directed to make a report with other agencies

          AB 367 is needed because the economic environment demands 
          bolstered protections for dependent adults of all ages.
           

           Opponents Argue
           AB 367 is an unfunded mandate that requires APS and law 
          enforcement agencies to place properly reported cases aside and 
          spend time and resources relaying reports to agencies that 
          mandated reporters are now responsible for sending. 

           Expressions of concern
           The California Welfare Director's Association recommends 
          amendments to help the author address two issues.  First, to 







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          address the lack of clarity when a mandated reporter learns of 
          abuse in a different county, and second, when a mandated 
          reporter in California learns of abuse outside California.  

           Discussion
           Existing law establishes the definition of "mandated reporters" 
          of elder and dependent adult abuse, as well as their legal 
          obligations.  Since elder and dependent adult abuse became a 
          mandate in 1982, great care has been taken in assuring that the 
          codes remain functional and relevant given the projected and 
          existing growth of, and the unique challenges to, assuring 
          protection of the elderly and dependent adult populations.

          Welfare and Institutions Code 15630 is a comprehensive mandate.  
          It establishes who mandated reporters are.  It establishes the 
          scope of the mandated reporter's duty to report.  It then lays 
          out who reports are made to, and the time frame in which to do 
          it, and what happens if they don't.  In relation to those three 
          primary directives, WIC 15630 permits mandated reporters to 
          report abuse not defined in their primary mandate, provides 
          protections for clergy, and alternative reporting mandates for 
          health practitioners exercising clinical judgment, and long-term 
          care facility staff.  It clarifies that mandated reporters are 
          not required to investigate, guides them when more than one 
          witness an incident, and assures APS and law enforcement work 
          together.      

          AB 367 adds a section to the Welfare and Institutions Codes 
          inspired by the child abuse reporting statutes to address the 
          frustrations that some mandated reporters of elder and dependent 
          adult abuse have experienced with regard to jurisdiction.  

           Questions:
           Does AB 367 create unintentional confusion in mandated reporter 
          statutes?  AB 367 may unintentionally create confusion by adding 
          additional codes with new concepts relative to jurisdiction, 
          instead of amending existing code.  The individual mandate seems 
          to have migrated from a "shall" in current law (WIC 15630) to a 
          "may" in AB 367 when mandated reporters unintentionally reach an 
          APS or law enforcement office outside the appropriate reporting 
          jurisdiction.  It appears AB 367 may create an option to report 
          when jurisdiction is in question.  AB 367 requires county APS 
          offices to receive such reports, but then uses the optional "if" 
          instead of "when" in directing a county APS offices' next steps 
          in the effort to assure the report is directed to the 
          appropriate jurisdiction.  Could a mandated reporter 'drop' 







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          reports on any APS office to relieve themselves of their duty in 
          order to avoid the minimal research necessary to direct their 
          reports to the correct agency?    

          AB 367 adds WIC 15631.5 which also uses such undefined terms as 
          "subject matter or geographical jurisdiction," (page 2, line 10) 
          and "electronic transmission," (Page 2, line 20).  The proposed 
          new section may actually unintentionally contribute to the 
          confusion and frustration that not only reporters experience, 
          but additional frustration and confusion for victims and 
          families of victims who are placing their trust in the reporting 
          system to facilitate justice.  The author may wish to consider 
          amending existing statutes, WIC 15630, the code section dealing 
          with mandated reporting, and WIC 15631, the section dealing with 
          permissive reporting in order to address his concern.   Given 
          the extensive number of potential stakeholders, an effort to 
          bring them together to develop a workable and collaborative 
          solution would be recommended.

          What impact will AB 367 have on the existing APS reporting 
          system and law enforcement?  Since 2000, APS agencies throughout 
          the state have endured $15 million in general fund reductions as 
          part of a total reduction of $28.1 million.  During that period, 
          the elderly population has increased from 3.2 million to about 
          4.2 million today.  Requiring APS agencies and law enforcement 
          agencies to take on the additional responsibilities of 
          researching and referring reports to the appropriate agency will 
          divert resources currently devoted to bringing justice to abused 
          elders and dependent adults.  Any increase to APS workload, such 
          as new research and referral obligations, will likely place more 
          burdens on an already burdened system.  Given the economic 
          climate and the likelihood of cuts at both the state and local 
          levels, this may not be the time to be adding increased duties 
          upon APS and law enforcement personnel.


           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           California Association of Marriage & Family Therapists - 
          sponsors
          California Senior Legislature (CSL)

           Opposition 
           California Advocates for Nursing Home Reform (CANHR)
           







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          Concerns
           County Welfare Directors Association of California (CWDA)
           
          Analysis Prepared by  :    Robert MacLaughlin / AGING & L.T.C. / 
          (916) 319-3990