BILL ANALYSIS Ó
AB 2149
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Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 2149 (Butler) - As Amended: April 26, 2012
SUBJECT : Elder and dependent adult abuse: settlement
agreements: gag order.
SUMMARY : Prohibits settlement agreements in civil cases
involving abuse of older and/or dependent adults from containing
restrictions related to contacting investigatory agencies.
Specifically, this bill :
1)Prohibits settlement agreements related to neglect, or related
to the physical or financial abuse of an elder or dependent
adult from including a provision that anyone involved in the
case be barred from contacting or cooperating with the county
Adult Protective Services agency (APS), law enforcement, the
long-term care ombudsman, the California Department of Aging
(CDA), the California Department of Justice (DOJ), or the
Licensing and Certification Division (L&C) of the California
Department of Public Health (DPH).
2)Prohibits settlement agreements related to the abuse of an
elder or dependent adult from including a provision that
anyone involved in the case be barred from filing a complaint
or reporting a violation of law to the county APS agency, law
enforcement, the long-term care ombudsman, the CDA, the DOJ,
or the DPH L&C.
3)Prohibits settlement agreements related to the abuse of an
elder or dependent adult from including a provision that
anyone involved in the case be required to withdraw a
complaint or violation filed with the county APS agency, law
enforcement, the long-term care ombudsman, the CDA, the DOJ,
or the DPH L&C.
EXISTING LAW
1)Establishes the Elder and Dependent Adult Civil Protection Act
(EADACPA) within the Welfare and Institutions Code which
acknowledges that older and dependent adults may be
particularly at-risk for abuse, neglect, or abandonment; that
they require special attention to their needs and problems;
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that they are a disadvantaged class; that cases of abuse of
older or dependent adults are seldom prosecuted as criminal
matters due to problems of proof, court delays, and a lack of
incentives to prosecute; and that it is the intent of the
legislature to enable interested persons to engage attorneys
to take up the cause of the abused elderly and dependent
adults through civil actions.
2)Declares that crimes against elders and dependent adults are
deserving of special consideration and protection, not unlike
the special protections provided for minor children, because
elders and dependent adults may be confused, on various
medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand
or report criminal conduct, or to testify in court proceedings
on their own behalf.
3)Provides for punishments in the form of prison sentences of up
to eleven years, and fines of up to $6,000 for willful acts
against older and dependent adults that are likely to cause
unjustifiable physical pain or mental suffering, and in the
case of caregivers, willfully allows or causes the person or
the health of an older or dependent adult to be injured.
4)Defines physical abuse of an elder or dependent adult as
assault, assault with a deadly weapon, sexual assault,
battery, prolonged constraint or deprivation of food or water,
or the use of physical restraints or psychotropic medications
as punishment, or for a period beyond that which has been
ordered by a physician, or for reasons not directed by a
physician.
5)Declares confidential settlement agreements as "disfavored"
and specifically carves out information that is evidence of
abuse of an elder or dependent adult financial abuse, neglect,
and physical abuse, or if there is a substantial probability
that prejudice will result from the disclosure and that the
party's interest in the information cannot be adequately
protected through redaction.
6)Prohibits disclosure of information obtained in mediation from
discovery as long as the information is non-criminal.
FISCAL EFFECT : No known costs to the state.
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Author's Statement:
"Under California's current Elder Abuse and Dependent Adult
Civil Protection Act, while in civil litigation, abusers can ask
for their victims to sign settlement agreements that prohibit
the victim or victim's family from contacting or cooperating
with Adult Protective Services, local law enforcement or other
government agencies. Because of this loop hole, many abusers
never face further investigation or prosecution. AB 2149 would
not allow victims of elder and dependent adult abuse to have
their voices silenced when seeking recourse in civil court."
COMMENTS :
As noted in the author's statement, the author is concerned
about situations in which the alleged abuser asks the plaintiff
to sign a settlement agreement that requests a plaintiff to
withdraw a complaint, or prohibits the victim from contacting or
filing a report, with a county APS program, a local law
enforcement agency, the long-term care ombudsman, the CDA, the
DOJ, or the DPH L&C. Background provided by the author and
supporters suggest that "gag clauses" often impair efforts to
identify, investigate, and prosecute abusers. Therefore, AB
2149 has very little to do with the parties of a settlement
agreement, and far more to do with the well-being of others who
may be in jeopardy because of resulting, suppressed
investigatory activities. Furthermore, mandated reporters who
are comprised of caregivers, health care professionals, clergy,
law enforcement and others, may find themselves placed in
double-jeopardy if they adhere to illegal gag-clauses and place
their professional licenses at risk, as well as risk facing a 6
month jail sentence for failure to report a known incident of
elder or dependent adult abuse.
Existing law disfavors confidentiality agreements in EADACPA
cases (Code of Civil Procedure 2017.310), and provides for
noncriminal information to be not discoverable in settlement
agreements (Evidence Code Section 1190). There is no explicit
prohibition from using confidentiality agreements regarding
investigatory entities, though they are likely to be
unenforceable if challenged. The mere presence of such language
in a settlement agreement may have a chilling effect upon a
victim and family members from reporting known criminal acts not
intended to be protected by confidentiality clauses in
settlement agreements. AB 2149 would provide for both parties
to begin settlement negotiations with clearly articulated
boundaries that assure that no party misunderstands this
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important fact, and provides for an environment where legal,
enforceable settlement agreements can be developed quickly in
order to save time and avoid further, costly litigation.
Cases of abuse and neglect are not necessarily isolated
incidents--if one vulnerable person has been abused or neglected
in an institutional setting, there is likelihood that others
have been similarly abused or neglected. Outside institutions,
predatory elder and dependent adult abusers often have multiple
victims. Gag clauses in settlement agreements have the effect
of preventing law enforcement and other agencies from combatting
"systemic problems," due to implied prohibitions to share
information on criminal or potentially criminal acts. It is not
difficult to imagine how other vulnerable people remain at risk
of systemic or predatory abusers when alleged victims who are
subjects of settlement agreements are intimidated from sharing
their knowledge of criminal acts. AB 2149 assures that parties
of settlement agreements are not confronted with implied
barriers to reporting criminal acts to the agencies described in
the bill. Furthermore, AB 2149 assures that the agencies
described in the bill are free to carry out their statutory
responsibilities to protect the health and welfare of
vulnerable, older or dependent adults. Settlement agreements
that serve to prevent victims from contacting, providing
information to, or otherwise cooperating with investigatory
agencies impede the mandated functions of these agencies,
functions already challenged by low reporting statistics.
Elder and dependent adult abuse is widely documented as under
reported. Vulnerable people are reluctant to report such crimes
because perpetrators are often family members, or people with
care responsibilities over the victim. Retaliation is a real
fear and concern amongst victims because reporting may elicit
even greater hostilities. According to the National Center on
Elder Abuse (NCEA) at the United States Administration on Aging
(AoA), no one knows precisely how many older Americans are being
abused, neglected, or exploited because there are no official
national statistics. However, studies of prevalence and
incidence conducted over the past several years by independent
investigators show that:
1)Between 1 and 2 million Americans age 65 or older have been
injured, exploited, or otherwise mistreated by someone upon
whom they depended on for care or protection (Elder
Mistreatment: Abuse, Neglect and Exploitation in an Aging
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America, 2003, Washington, DC: National Research Council Panel
to Review Risk and Prevalence of Elder Abuse and Neglect);
2)The estimated frequency of elder abuse range from 2% to 10%
(Lachs, Mark S., and Karl Pillemer, October 2004, "Elder
Abuse," The Lancet, Vol. 364: 1192-1263,);
3)Only about 1 in 14 incidents of abuse, excluding incidents of
self-neglect, are reported to authorities. (Pillemer, Karl,
and David Finkelhorn, 1988, "The Prevalence of Elder Abuse: A
Random Sample Survey," The Gerontologist, 28: 51-57);
4)Only 1 in 25 cases of financial exploitation is reported,
(Wasik, John F. 2000. "The Fleecing of America's Elderly,"
Consumers Digest, March/April); and,
5)According to the NCEA's own study from 1998, for every case of
elder abuse, neglect, exploitation, or self-neglect reported
to authorities, about five more go unreported. (National Elder
Abuse Incidence Study. 1998. Washington, DC).
Statewide data from the Long-Term Care Ombudsman's office show
5,996 complaints of abuse in long-term care facilities where
about 250,000 vulnerable people reside, out of roughly 39,000
complaints received during FY 2010/11. The California
Department of Social Services reports that roughly 255,000
complaints of abuse in the community at large (not including
long-term care facilities) have been received during the past
calendar year. According to the California Department of
Finance's (DOF) Demographic Research Unit, California is home to
the largest number of seniors in the nation and their numbers
are expanding at an unprecedented pace. DOF estimates that
California's 65+ population will have grown 43% between 2010 and
2020 (from 4.4 million to 6.35 million). By 2030 the 65+
population will reach nearly 9 million people. Along with the
increase in the aged population will come a corresponding
increase in disability, vulnerability and dependency. These
figures do not reflect the number of non-elderly individuals who
are dependent upon others due to impairments.
Supporters Argue
The California Advocates for Nursing Home Reform (CANHR),
sponsors of AB 2149, assert that many abusers never face further
investigations or prosecution once the victim, or family of the
victim, enter into settlement agreements. The California Senior
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Legislature (CSL), a co-sponsor of AB 2149, writes that
including gag clauses, preventing an elderly victim of financial
or physical abuse from contacting law enforcement or adult
protective services agencies is inconsistent with their efforts
to protect and enhance the quality of life for aging
Californians. The California Commission on Aging, the principle
advocate for older Californians, states that the incidence of
abuse of dependent adults is increasing across the nation. A
prohibition of the use of non-contact or non-cooperation
provisions takes an important step toward stopping abuse in its
tracks; perpetrators should not be protected from exposure, nor
should they be shielded from on-going scrutiny. The California
State Sherriff's Association writes, since aged and dependent
victims of abuse usually have fewer support systems and
reserves-physical, psychological and economic-the impact of
abuse and neglect is magnified. A single incident of
mistreatment is more likely to trigger a downward spiral leading
to loss of independence, serious illness, even death. AB 2149
will help assure that the dependent adults in our state will
live with dignity, integrity, independence, and without abuse,
neglect or exploitation. Ombudsman & HICAP Services of Northern
California, a project of Legal Services of Northern California
states that abuse cases often result in litigation and are
settled by initiation of family members. This leaves other
residents in facilities at risk of systemic problems because
advocacy services, such as the long-term care ombudsman, are
side-stepped due to gag-clauses. The Los Angeles District
Attorney's office states AB 2149 will assist in deterring civil
settlements from interfering with a witness in a criminal
investigation or prosecution.
Opponents Argue
Aging Services of California (ASC), in an opposition letter to
the Judiciary Committee, states that the association members see
no basis for positing such sweeping change to the efficacy of
voluntary settlement agreements intended to end costly
litigation. ASC asserts that AB 2149 will increase the cost of
caring for and providing services to frail and disabled persons
in California. The elimination of voluntary confidential
settlements will force more cases to trial, increasing
litigation costs, and the cost of liability insurance, which
will be reflected in increased Medi-Cal costs. ASC asserts that
state law already provides protections from cloaking evidence of
abuse as described in the EADACPA, and enforcement is determined
by the court. The CalChamber asserts that AB 2149 discourages
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settlement agreements in elder and dependent adult abuse cases,
and that the expansion of current law will ultimately "?harm
elderly and dependent adult plaintiffs who wish to negotiate
quick settlements, and drive up the cost of care at elder-care
facilities?" CalChamber also states that AB 2149 is duplicative
of existing law.
Related Legislation
AB 634 (Steinberg) Chapter 232, Statutes of 2003, established
state policy disfavoring confidential settlement agreements in
any civil action, the factual foundation for which establishes a
cause of action for a violation of the Elder Abuse and Dependent
Adult Civil Protection Act (EADACPA), such as financial abuse,
neglect, or physical abuse.
DOUBLE REFERRAL
AB 2149 is the subject of a dual policy committee referral. AB
2149 was heard in the Assembly Committee on Judiciary on April
25th where it passed out on a 6-4 vote.
RECOMMENDATIONS
In order to assure the entire spectrum of investigative entities
are covered in the gag-clause prohibitions of AB 2149, the
author may wish to consider adding the Community Care Licensing
Division of the Department of Social Services which licenses and
enforces laws and regulations in assisted living (non-medical)
long-term care facilities, the Office of Protective Services
within the Department of Developmental Services, as well as the
Bureau of Medi-Cal Fraud and Elder Abuse within the Department
of Justice.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (CANHR) -
Co-Sponsor
California Commission on Aging (CCoA) - Co-Sponsor
California Senior Legislature (CSL) - Co-Sponsor
American Federation of State, County and Municipal Employees
(AFSCME)
California State Sheriff's Association (CSSA)
Consumer Attorneys of California
Ombudsman & HICAP Services of Northern California
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Los Angeles County District Attorney
State Long-Term Care Ombudsman
Opposition
Aging Services of California
California Chamber of Commerce
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990