BILL NUMBER: SB 33 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 15, 2011
INTRODUCED BY Senators Simitian and Wolk
( Principal coauthor: Assembly Member
Wagner )
DECEMBER 6, 2010
An act to repeal Section 7480 of the Government Code, and
to amend An act to amend Section 15630.1 of,
and to amend and repeal Sections 15633, 15634, 15640, and 15655.5 of,
the Welfare and Institutions Code, relating to elder and dependent
adult abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 33, as amended, Simitian. Elder and dependent adult abuse.
Existing law provides for the confidentiality of financial records
but does not prohibit various state and local officers and agencies
from requesting information from an office or branch of a financial
institution and the office or branch from responding to the request,
as to whether a person has an account or accounts at that office or
branch and, if so, any identifying numbers of the account or
accounts.
Existing law provides that a county adult protective services
office and a long-term care ombudsman when investigating the
financial abuse of an elder or dependent adult is similarly not
prohibited from requesting financial information and the office or
branch is not prohibited from responding to the request.
This bill would make a technical nonsubstantive change to the
above provisions. The
The Elder Abuse and Dependent Adult Civil Protection
Act establishes procedures for the reporting, investigation, and
prosecution of elder and dependent adult abuse. The act requires
persons, defined as mandated reporters, to report known or suspected
instances of elder or dependent adult abuse. Under the act, care
custodians of elder or dependent adults and local law enforcement
agencies are mandated reporters. A violation of the reporting
requirements by a mandated reporter is a misdemeanor.
Existing law, until January 1, 2013, includes within these
reporting requirements mandated reporters of suspected financial
abuse, as defined, and, with certain exceptions, makes failure to
comply with these requirements subject to a civil penalty.
This bill would delete the January 1, 2013, repeal date.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7480 of the Government Code,
as amended by Section 2 of Chapter 709 of the Statutes of 2010, is
repealed.
SEC. 2. SECTION 1. Section 15630.1
of the Welfare and Institutions Code is amended to read:
15630.1. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" means all
officers and employees of financial institutions.
(b) As used in this section, the term "financial institution"
means any of the following:
(1) A depository institution, as defined in Section 3(c) of the
Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of
the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in
Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752),
including, but not limited to, an institution-affiliated party of a
credit union, as defined in Section 206(r) of the Federal Credit
Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an
elder or dependent adult who has direct contact with the elder or
dependent adult or who reviews or approves the elder or dependent
adult's financial documents, records, or transactions, in connection
with providing financial services with respect to an elder or
dependent adult, and who, within the scope of his or her employment
or professional practice, has observed or has knowledge of an
incident, that is directly related to the transaction or matter that
is within that scope of employment or professional practice, that
reasonably appears to be financial abuse, or who reasonably suspects
that abuse, based solely on the information before him or her at the
time of reviewing or approving the document, record, or transaction
in the case of mandated reporters who do not have direct contact with
the elder or dependent adult, shall report the known or suspected
instance of financial abuse by telephone immediately, or as soon as
practicably possible, and by written report sent within two working
days to the local adult protective services agency or the local law
enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report may be made by a
member of the reporting team who is selected by mutual agreement. A
single report may be made and signed by the selected member of the
reporting team. Any member of the team who has knowledge that the
member designated to report has failed to do so shall thereafter make
that report.
(3) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(e) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(f) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
financial institution that is the employer of the mandated reporter
to the party bringing the action. Subdivision (h) of Section 15630
shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be
recovered only in a civil action brought against the financial
institution by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty may not be brought
for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(h) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (a) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(i) Reports of suspected financial abuse of an elder or dependent
adult made by an employee or officer of a financial institution
pursuant to this section are covered under subdivision (b) of Section
47 of the Civil Code.
SEC. 3. SEC. 2. Section 15633 of the
Welfare and Institutions Code, as amended by Section 5 of Chapter 140
of the Statutes of 2005, is amended to read:
15633. (a) The reports made pursuant to Sections 15630, 15630.1,
and 15631 shall be confidential and may be disclosed only as provided
in subdivision (b). Any violation of the confidentiality required by
this chapter is a misdemeanor punishable by not more than six months
in the county jail, by a fine of five hundred dollars ($500), or by
both that fine and imprisonment.
(b) Reports of suspected abuse of an elder or dependent adult and
information contained therein may be disclosed only to the following:
(1) Persons or agencies to whom disclosure of information or the
identity of the reporting party is permitted under Section 15633.5.
(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or dependent
persons.
(B) Except as provided in subparagraph (A), any personnel of the
multidisciplinary team or agency that receives information pursuant
to this chapter, shall be under the same obligations and subject to
the same confidentiality penalties as the person disclosing or
providing that information. The information obtained shall be
maintained in a manner that ensures the maximum protection of privacy
and confidentiality rights.
(c) This section shall not be construed to allow disclosure of any
reports or records relevant to the reports of abuse of an elder or
dependent adult if the disclosure would be prohibited by any other
provisions of state or federal law applicable to the reports or
records relevant to the reports of the abuse, nor shall it be
construed to prohibit the disclosure by a financial institution of
any reports or records relevant to the reports of abuse of an elder
or dependent adult if the disclosure would be required of a financial
institution by otherwise applicable state or federal law or court
order.
SEC. 4. SEC. 3. Section 15633 of the
Welfare and Institutions Code, as added by Section 6 of Chapter 140
of the Statutes of 2005, is repealed.
SEC. 5. SEC. 4. Section 15634 of the
Welfare and Institutions Code, as amended by Section 7 of Chapter
140 of the Statutes of 2005, is amended to read:
15634. (a) No care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or
dependent adult, or employee of an adult protective services agency
or a local law enforcement agency who reports a known or suspected
instance of abuse of an elder or dependent adult shall be civilly or
criminally liable for any report required or authorized by this
article. Any other person reporting a known or suspected instance of
abuse of an elder or dependent adult shall not incur civil or
criminal liability as a result of any report authorized by this
article, unless it can be proven that a false report was made and the
person knew that the report was false. No person required to make a
report pursuant to this article, or any person taking photographs at
his or her discretion, shall incur any civil or criminal liability
for taking photographs of a suspected victim of abuse of an elder or
dependent adult or causing photographs to be taken of such a
suspected victim or for disseminating the photographs with the
reports required by this article. However, this section shall not be
construed to grant immunity from this liability with respect to any
other use of the photographs.
(b) No care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or
dependent adult, or employee of an adult protective services agency
or a local law enforcement agency who, pursuant to a request from an
adult protective services agency or a local law enforcement agency
investigating a report of known or suspected abuse of an elder or
dependent adult, provides the requesting agency with access to the
victim of a known or suspected instance of abuse of an elder or
dependent adult, shall incur civil or criminal liability as a result
of providing that access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report abuse of an
elder or dependent adult, immunity does not eliminate the possibility
that actions may be brought against those persons based upon
required reports of abuse. In order to further limit the financial
hardship that those persons may incur as a result of fulfilling their
legal responsibilities, it is necessary that they not be unfairly
burdened by legal fees incurred in defending those actions.
Therefore, a care custodian, clergy member, health practitioner, or
an employee of an adult protective services agency or a local law
enforcement agency may present to the State Board of Control
California Victim Compensation and Government Claims
Board a claim for reasonable attorneys' fees incurred in any
action against that person on the basis of making a report required
or authorized by this article if the court has dismissed the action
upon a demurrer or motion for summary judgment made by that person,
or if he or she prevails in the action. The State Board of
Control California Victim Compensation and Government
Claims Board shall allow that claim if the requirements of this
subdivision are met, and the claim shall be paid from an
appropriation to be made for that purpose. Attorneys' fees awarded
pursuant to this section shall not exceed an hourly rate greater than
the rate charged by the Attorney General at the time the award is
made and shall not exceed an aggregate amount of fifty thousand
dollars ($50,000). This subdivision shall not apply if a public
entity has provided for the defense of the action pursuant to Section
995 of the Government Code.
SEC. 6. SEC. 5. Section 15634 of the
Welfare and Institutions Code, as amended by Section 711 of Chapter
538 of the Statutes of 2006, is repealed.
SEC. 7. SEC. 6. Section 15640 of the
Welfare and Institutions Code, as amended by Section 9 of Chapter
140 of the Statutes of 2005, is amended to read:
15640. (a) (1) An adult protective services agency shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case any
known or suspected instance of criminal activity, and to any public
agency given responsibility for investigation in that jurisdiction of
cases of elder and dependent adult abuse, every known or suspected
instance of abuse pursuant to Section 15630 or 15630.1 of an elder or
dependent adult. A county adult protective services agency shall
also send a written report thereof within two working days of
receiving the information concerning the incident to each agency to
which it is required to make a telephone report under this
subdivision. Prior to making any cross-report of allegations of
financial abuse to law enforcement agencies, an adult protective
services agency shall first determine whether there is reasonable
suspicion of any criminal activity.
(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the person
making the report that he or she is required to make the report to
the long-term care ombudsman program or to a local law enforcement
agency. The adult protective services agency shall not accept the
report by telephone but shall forward any written report received to
the long-term care ombudsman.
(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of known
or suspected elder or dependent adult abuse determines, pursuant to
its investigation, that the abuse is being committed by a health
practitioner licensed under Division 2 (commencing with Section 500)
of the Business and Professions Code, or any related initiative act,
or by a person purporting to be a licensee, the adult protective
services agency or local law enforcement agency or ombudsman program
shall immediately, or as soon as practically possible, report this
information to the appropriate licensing agency. The licensing agency
shall investigate the report in light of the potential for physical
harm. The transmittal of information to the appropriate licensing
agency shall not relieve the adult protective services agency or
local law enforcement agency or ombudsman program of the
responsibility to continue its own investigation as required under
applicable provisions of law. The information reported pursuant to
this paragraph shall remain confidential and shall not be disclosed.
(c) A local law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the long-term care
ombudsman program when the abuse is alleged to have occurred in a
long-term care facility or to the county adult protective services
agency when it is alleged to have occurred anywhere else, and to the
agency given responsibility for the investigation of cases of elder
and dependent adult abuse every known or suspected instance of abuse
of an elder or dependent adult. A local law enforcement agency shall
also send a written report thereof within two working days of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.
(d) A long-term care ombudsman coordinator may report the instance
of abuse to the county adult protective services agency or to the
local law enforcement agency for assistance in the investigation of
the abuse if the victim gives his or her consent. A long-term care
ombudsman program and the Licensing and Certification Division of the
State Department of Health Services Public
Health shall immediately report by telephone and in writing
within two working days to the bureau any instance of neglect
occurring in a health care facility, that has seriously harmed any
patient or reasonably appears to present a serious threat to the
health or physical well-being of a patient in that facility. If a
victim or potential victim of the neglect withholds consent to being
identified in that report, the report shall contain circumstantial
information about the neglect but shall not identify that victim or
potential victim and the bureau and the reporting agency shall
maintain the confidentiality of the report until the report becomes a
matter of public record.
(e) When a county adult protective services agency, a long-term
care ombudsman program, or a local law enforcement agency receives a
report of abuse, neglect, or abandonment of an elder or dependent
adult alleged to have occurred in a long-term care facility, that
county adult protective services agency, long-term care ombudsman
coordinator, or local law enforcement agency shall report the
incident to the licensing agency by telephone as soon as possible.
(f) County adult protective services agencies, long-term care
ombudsman programs, and local law enforcement agencies shall report
the results of their investigations of referrals or reports of abuse
to the respective referring or reporting agencies.
SEC. 8. SEC. 7. Section 15640 of the
Welfare and Institutions Code, as added by Section 10 of Chapter 140
of the Statutes of 2005, is repealed.
SEC. 9. SEC. 8. Section 15655.5 of
the Welfare and Institutions Code, as amended by Section 11 of
Chapter 140 of the Statutes of 2005, is amended to read:
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Section 15630.1, with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under this chapter. At
a minimum, the instructional materials shall include the following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
SEC. 10. SEC. 9. Section 15655.5 of
the Welfare and Institutions Code, as amended by Section 712 of
Chapter 538 of the Statutes of 2006, is repealed.