BILL ANALYSIS Ó AB 367 Page 1 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. AB 367 Page 2 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. AB 367 Page 3 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 AB 367 Page 4 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' AB 367 Page 5 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) AB 367 Page 6 Concerns County Welfare Directors Association of California (CWDA) Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. / (916) 319-3990