BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2149 (Butler)
As Amended May 21, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
TW
SUBJECT
Elder and Dependent Adult Abuse: Settlement: Gag Order
DESCRIPTION
This bill would prohibit, and make void as against public
policy, the inclusion of any of the following provisions in a
settlement agreement of claims related to the Elder Abuse and
Dependent Adult Civil Protection Act (EADACPA), whether made
before or after the filing of an EADACPA action:
a provision prohibiting any party from contacting or
cooperating with the state or local government agencies, as
specified;
a provision prohibiting any party from filing a complaint
with, or reporting any violation of law to, state or local
government agencies, as specified; and
a provision that requires any party to withdraw a complaint he
or she has filed with, or a violation he or she has reported
to, state or local government agencies, as specified.
BACKGROUND
The California Legislature, in recognition of the need of
special protection for California's vulnerable elder and
dependent adult population, has enacted significant criminal and
civil protections for elders and dependent adults. In 1983, the
Legislature determined that crimes against dependent adults
deserved special consideration and established enhanced criminal
penalties against individuals who perpetrate crimes, including
great bodily harm, infliction of pain, endangerment, and false
imprisonment, against dependent adults. In 1986, the
Legislature extended these protections to elders.
(more)
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In 1992, the Legislature enacted SB 679 (Mello, Ch. 774, Stats.
1991), which established the Elder Abuse and Dependent Adult
Civil Protection Act (EADACPA). EADACPA provides enhanced civil
remedies to ensure adequate representation of and protection for
victims of elder or dependent adult physical and financial abuse
and neglect.
Although EADACPA allows civil suits to be brought against elder
and dependent adult abusers, many of these suits are settled
prior to litigation or even before the filing of an action.
Oftentimes, the settlement agreements of these actions include
provisions, sometimes referred to as "secrecy clauses" or "gag
clauses," that prohibit the parties from disclosing any
information about the claims to outside sources. Through the
use of gag clauses, wrongdoers can hide misconduct from the
public, potentially jeopardizing public welfare and safety.
Several attempts have been made to enact legislation to prohibit
the use of confidential settlement agreements that restrict a
party from divulging information related to the claims being
settled. SB 11 (Escutia, 2001) and AB 36 (Steinberg, 2001)
would have prohibited the use of gag clauses in elder and
dependent adult abuse actions, as well as in cases involving
personal injury/wrongful or environmental hazards. SB 11 died
on the Assembly Third Reading File, while AB 36 was held in the
Senate Rules Committee where it died without a hearing.
AB 634 (Steinberg, Ch. 242, Stats. 2003) established a test for
the court to determine whether good cause exists to enforce a
confidential settlement agreement or a stipulated protective
order that hides information that is evidence of abuse of an
elder or dependent adult in violation of the EADACPA. Like AB
36 and SB 11, AB 634 limited the enforcement of a confidential
settlement agreement or stipulated protective order if that
confidentiality will hide specified information from public
disclosure, but AB 634 only applied to EADACPA cases.
AB 1700 (Pavley, 2005) also would have prohibited settlement
agreements of claims based upon a public danger, including
claims that that an action caused significant or substantial
bodily injury to a child, elder, or dependent adult. AB 1700
died on the Inactive File on the Assembly Floor.
This bill, sponsored by California Advocates for Nursing Home
Reform, would prohibit provisions in settlement agreements of
EADACPA claims that limit the ability of any party to report to
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or participate in investigations by law enforcement or state and
local government agencies regarding neglect or physical or
financial abuse of an elder or dependent adult.
CHANGES TO EXISTING LAW
Existing law , the Elder Abuse and Dependent Adult Civil
Protection Act (EADACPA), generally provides civil protections
and remedies for victims of elder and dependent adult abuse and
neglect. (Welf. & Inst. Code Sec. 15600 et seq.)
Existing law , under the Civil Discovery Act, declares that it is
the state's policy that confidential settlement agreements are
disfavored in any civil action the factual foundation for which
establishes a cause of action for a violation of EADACPA. (Code
Civ. Proc. Sec. 2017.310(a).)
Existing law limits recognition or enforcement of a confidential
settlement agreement of EADACPA claims unless a party proves:
(1) the information is privileged under existing law; (2) the
information is not evidence of abuse of an elder or dependent
adult; or (3) the party seeking to uphold the confidentiality of
the information has demonstrated that 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. (Code Civ. Proc. Sec.
2017.310(b).)
This bill would provide that an agreement to settle a civil
action for physical abuse, neglect, or financial abuse of an
elder or dependent adult shall not include any of the following
provisions, whether the agreement is made before or after filing
the action:
a provision that prohibits any party to the dispute from
contacting or cooperating with the county adult protective
services agency, the local law enforcement agency, the
long-term care ombudsman, the California Department of Aging,
the Department of Justice, the Licensing and Certification
Division of the State Department of Public Health, the State
Department of Developmental Services, the State Department of
Mental Health, a licensing or regulatory agency that has
jurisdiction over the license or certification of the
defendant, any other governmental entity, a protection and
advocacy agency, or the defendant's current employer
(collectively, Listed Entities) if the defendant's job
responsibilities include contact with elders, dependent
adults, or children, provided that the party contacting or
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cooperating with one of these entities had a good faith belief
that the information he or she provided is relevant to the
concerns, duties, or obligations of that entity;
a provision that prohibits any party to the dispute from
filing a complaint with, or reporting any violation of law to,
the Listed Entities; or
a provision that requires any party to the dispute to withdraw
a complaint he or she has filed with, or a violation he or she
has reported to, the Listed Entities.
This bill would provide that any of these provisions is void as
against public policy.
COMMENT
1. Stated need for the bill
The author writes:
Current law allows a gag clause to be placed when settling in
a civil lawsuit of elder or dependent adult abuse. This bill
would ban those gag clauses from being placed in a settlement
and stopping this continued cycle of abuse from happening.
California Advocates for Nursing Home Reform (CANHR), a
co-sponsor of this bill, writes:
California's Elder Abuse and Dependent Adult Civil Protection
Act Ý(EADACPA)], enacted in 1991, gives abused seniors,
dependent adults and their survivors the right to sue for
civil damages when abuse happens - whether physical or
financial abuse. Victims seeking recourse under California's
Elder Abuse law through litigation are sometimes asked to sign
settlement agreements - agreements that prohibit the victim or
the victim's family from contacting or cooperating with
entities such as Adult Protective Services, local law
enforcement or other governmental agencies. Thus many abusers
never face further investigation or prosecution.
By providing that such provisions are void against public
policy, AB 2149 enhances the ability of government agencies to
deter elder abuse in California.
2. Prohibiting gag clauses in EADACPA settlement agreements
Existing law provides that confidential settlement agreements of
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civil EADACPA claims are void unless the confidential
information is privileged under existing law, the information is
not evidence of neglect or abuse under EADACPA, or the party
seeking to keep the information confidential can demonstrate
resulting prejudice if the information is disclosed. (Code Civ.
Proc. Sec. 2017.310(b).) Although existing law prohibits
confidential settlement agreements in certain circumstances,
this bill would prohibit the use of certain clauses in all
EADACPA claim settlement agreements that restrict a party's
disclosure of information to law enforcement and government
agencies that protect the welfare of elders and dependent
adults.
The American Federation of State, County and Municipal
Employees, AFL-CIO (AFSCME) notes in support of this bill that
"Ýa]buse of elders and dependent adults is on the rise. In
2010, it is estimated that there were over 600,000 cases of
vulnerable adult abuse reported or unreported in California,
with approximately 40 Ýpercent] identified as financial abuse.
In addition, California is a prime target for financial abuse as
the nation's highest retirement destination, with an estimated
6.5 million people over age 60 living in the Golden State in
2010. California continues to be the state with the greatest
number of elder abuse cases in the United States, accounting for
10.6 Ýpercent] of all elder abuse cases in the U.S."
The Arc California and United Cerebral Palsy in California, in
support of this bill, state that "Ýp]eople with disabilities,
including disabilities caused by aging, suffer from a much
higher rate of abuse and other crime that the general
population. Most of these vile crimes are never reported to the
appropriate law enforcement or regulatory agencies, and the
perpetrators remain free to continue their serial crimes."
Further, many EADACPA claims are not filed with the court but
are settled prior to the filing of a civil action. As such, law
enforcement and protective services are unaware of, unable to
investigate, and unable to protect the public from individuals
who neglect or physically or financially abuse elders and
dependent adults. The Los Angeles County District Attorney's
Office asserts in support of this bill that it will "assist in
deterring civil settlements from interfering with a witness in a
criminal investigation or prosecution."
The California Commission on Aging, a co-sponsor of this bill,
argues in support of this bill as follows:
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By prohibiting the use of non-contact or non-cooperation
provisions in settlement agreements in cases alleging abuse of
an elder or dependent adult, AB 2149 takes an important step
toward stopping abuse in its tracks. Perpetrators of physical
or financial abuse should not be protected from exposure, nor
should they be shielded from ongoing scrutiny. Prosecutors,
adult protective service professionals, or law enforcement
should not have to - nor are they equipped to - track civil
cases in order to identify where appropriate follow-up
investigations are warranted.
The National Association of Social Workers, a supporter of this
bill, contends that, because abuse victims are asked to sign
settlement agreements that limit their ability to report the
abuse to adult protective services, local law enforcement, and
other government agencies, many abusers do not face further
investigation or criminal prosecution. As such, these abusers
may continue to abuse other elders and dependent adults without
penal consequence.
This bill, by prohibiting gag clauses in EADACPA settlement
agreements that prohibit a party from disclosing information to
certain local and state government agencies or the defendant's
current employer, would allow victims and their families to
report abuse and neglect and potentially help to end systemic
violence and financial abuse against elders and dependent
adults.
3. Opposition Concerns
The California Chamber of Commerce argues that this bill would
expand the settlement agreement restrictions agreed upon in AB
634 (Steinberg, Ch. 242, Stats. 2003) and "allow information
unrelated to abuse and not likely to be probative of systemic
abuse, including technical violations of the law." In response,
the author argues that this bill would allow individuals
involved in EADACPA claims to provide information of physical
and financial abuse to law enforcement and elder and dependent
adult protection agencies. This information, in turn, may
assist law enforcement and protection agencies identify whether
or not there is in fact systemic abuse and whether the conduct
involved in the EADACPA claim merits a criminal investigation.
It should be noted that existing law provides for criminal
investigations and separate penalties in addition to civil
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protections for elder and dependent adult victims of abuse and
neglect. The fact that a wrongdoer settles a civil claim with a
victim does not inherently mean the wrongdoer should not also be
held responsible for criminal violations under the law. Should
the wrongdoer merely have made a technical violation of the
criminal law, which opponents do not actually define but which
may be evidence of systemic problems within a facility or with a
particular individual, reporting such a technical violation to
law enforcement may be appropriate to protect the greater good.
The Civil Justice Association of California argues that this
bill would undermine an individual's ability to negotiate for
him or herself and settle disputes outside of the court, will
lead to more litigation, and overburden court resources. In
response, the author argues that this bill does not preclude
EADACPA settlement agreements or make reporting EADACPA claims
information to law enforcement mandatory. But victims should
not be required to keep silent through gag clauses, especially
if there may be more victims who are unable to give voice to
their own situations. As argued by the Long Term Care Ombudsman
& Health Insurance Counseling & Advocacy Program Services of
Northern California, a supporter of this bill, "Ýa] resident
affected or other residents living in the same facility may in
no way reap from the settlement. The settlement may not resolve
the systemic problem. Advocacy services, such as the long-term
care ombudsman and/or regulatory intervention, Ýare]
side-stepped due to a gag clause."
4. Bill would affect existing contracts
The U.S. Constitution, under the Contracts Clause, provides that
no state shall pass any law impairing the obligation of
contracts. (U.S. Const., art. I, sec. 10.) The California
Constitution also declares that no law may be passed impairing
the obligation of a contract. (Cal. Const., art. I, sec. 9.)
As currently in print, this bill would apply to EADACPA claim
settlement agreements that have already been executed. As such,
this bill would violate the Contracts Clause because it
interferes with existing contractual rights. To avoid any
potential interference with those contracts, the author proposes
to amend this bill to provide for prospective application of
this bill to EADACPA claim settlement agreements.
Author's amendment :
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On page 3, after line 30, insert "(c) This section shall
apply only to an agreement entered on or after January 1,
2013."
Support : American Federation of State, County and Municipal
Employees; Association of Regional Center Agencies; California
State Association of Counties; California State Sheriffs'
Association; Consumer Attorneys of California; Consumer
Federation of California; County Welfare Directors Association
of California; Long Term Care Ombudsman & Health Insurance
Counseling & Advocacy Services of Northern California; Los
Angeles County District Attorney's Office; National Association
of Social Workers - California Chapter; State Independent Living
Council; State Long-Term Care Ombudsman; The Arc California;
United Cerebral Palsy California Collaboration
Opposition : Aging Services of California; California Chamber of
Commerce; Civil Justice Association of California
HISTORY
Source : California Advocates for Nursing Home Reform;
California Commission on Aging; California Senior Legislature
Related Pending Legislation :
SB 558 (Simitian, 2011) would change the evidentiary standard of
proof for elder and dependent abuse or neglect cases from clear
and convincing to preponderance of the evidence and would
clarify that punitive damages may not be imposed against an
employer unless the requirements for other civil case exemplary
damages against employers are satisfied. SB 558 is currently in
the Assembly Appropriations Committee under submission.
Prior Legislation :
AB 1700 (Pavley, 2005) See Background.
AB 634 (Steinberg, Ch. 242, Stats. 2003) See Background and
Comment 3.
AB 36 (Steinberg, 2001) See Background.
SB 11 (Escutia, 2001) See Background.
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SB 679 (Mello, Ch. 774, Stats. 1991) See Background.
Prior Vote :
Assembly Floor (Ayes 43, Noes 24)
Assembly Committee on Aging and Long Term Care (Ayes 4, Noes 2)
Assembly Committee on Judiciary (Ayes 6, Noes 4)
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