BILL ANALYSIS Ó
SENATE BANKING & FINANCIAL INSTITUTIONS COMMITTEE
Senator Juan Vargas, Chair
SB 33 (Simitian) Hearing Date: April 6,
2011
As Introduced: December 6, 2010
Fiscal: No
Urgency: No
SUMMARY Would delete the January 1, 2013 sunset date on the
Elder and Dependent Adult Financial Abuse Reporting Act,
originally enacted in 2005.
DESCRIPTION The following provisions of existing law, which are
all part of the Elder and Dependent Adult Financial Abuse
Reporting Act, would no longer sunset on January 1, 2013:
1. Financial institutions would continue to be required to report
suspected financial abuse of an elder or dependent adult, as
defined. Failure to report suspected financial abuse would
represent a violation of the law, subject to a civil penalty up
to $1,000 ($5,000 if failure to report is willful), paid by the
financial institution to the party bringing the action. This
penalty may be recovered only in a civil action brought against
the financial institution by the Attorney General, a district
attorney, or county counsel.
2. "Mandated reporter of suspected financial abuse of an elder or
dependent adult" would continue to mean all officers and
employees of financial institutions.
3. "Financial institutions" would continue to include banks,
thrifts, credit unions, and so-called "institution-affiliated
parties," which would continue to be defined by reference to
federal law (12 USC 1813(u)).
4. "Suspected financial abuse of an elder or dependent adult"
would continue to refer to a circumstance in which a person who
is required to report suspected financial abuse 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
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belief that an elder or dependent adult is the victim of
financial abuse, as defined.
5. Reports of suspected elder or dependent adult financial abuse
would continue to be kept confidential, except as specified, and
any violation of this confidentiality requirement would continue
to be punishable as a misdemeanor.
6. Persons reporting suspected financial abuse of an elder or
dependent adult, photographing evidence of a suspected
victim of elder or dependent adult financial abuse, and
persons providing access to the victim of a known or
suspected victim of elder or dependent adult financial abuse
would continue to be shielded from civil or criminal
liability, as long as their actions were carried out in
accordance with the law, as specified.
7. Rules regarding the manner in which an adult protective
services agency or local law enforcement agency or ombudsman
program must handle reports of suspected elder or dependent
adult financial abuse would continue to remain in effect.
8. County adult protective services agencies would continue to
be required to provide instructional materials regarding
elder and dependent adult financial abuse and the obligation
to report to mandated reporters, humane societies, animal
control agencies, fire departments, and offices of
environmental health and building code enforcement.
EXISTING LAW In addition to the requirements summarized above,
existing law also provides the following:
1. An "elder" for purposes of the elder and dependent adult
abuse statutes is any person residing in this state, 65
years of age or older. A "dependent adult" for purposes of
these statutes is any person between the ages of 18 and 64
years, 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,
including, but not limited to, persons who have physical or
developmental disabilities, or whose physical or mental
abilities have diminished because of age (Welfare and
Institutions Code Sections 15610.23 and 15610.27).
2. Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or
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dependent adult, whether or not he or she receives
compensation, or any elder or dependent adult care
custodian, health practitioner, clergy member, or employee
of a county adult protective services agency or a local law
enforcement agency, is a mandated reporter. Any of these
individuals, who observe or have knowledge of an incident
that reasonably appears to be physical abuse, abandonment,
abduction, isolation, financial abuse, or neglect, or who is
told by an elder or dependent adult that he or she has
experienced behavior constituting physical abuse,
abandonment, abduction, isolation, financial abuse or
neglect, or who reasonably suspects that abuse, must report
the known or suspected instance of abuse by telephone
immediately or as soon as reasonably practicable, and in
writing within two working days, as specified (Welfare and
Institutions Code Section 15630).
COMMENTS
1. Background and Discussion:
a. SB 1018, the bill which enacted the provisions of
law whose sunset dates this bill would delete, was the
subject of considerable debate and controversy, when it
was being considered by the Legislature during 2005.
Initially, concerns were raised by opponents to SB 1018
regarding the extent to which an employee or an officer
of a depository institution would be able to identify
known or suspected instances of financial abuse of elder
or dependent adults, and regarding the type(s) of
punishment that could be meted out against a mandated
reporter who falsely reported suspected financial abuse,
or who failed to report such abuse. Ultimately, all
parties in opposition to the measure reached a compromise
with the author. Mandated reporters under the Elder and
Dependent Adult Financial Abuse Reporting Act were given
significant protection from civil and criminal liability
for reports made. Those who failed to report suspected
elder or dependent adult financial abuse were subject to
civil and/or monetary penalties, but not to jail time.
As noted below, at least one former opponent of SB 1018
(the California Bankers Association) now supports SB 33;
SB 33 has no current opposition.
b. Available evidence suggests that SB 1018 has been
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successful in increasing the number of confirmed cases of
financial elder or dependent adult abuse reported to the
authorities. The CDSS data summarized below include all
of the reports of suspected financial abuse of elder and
dependent adult abuse in California, including those made
to local law enforcement agencies, long-term care
ombudsmen, and county adult protective services agencies.
Using data obtained from the California Department of
Social Services
( http://www.cdss.ca.gov/research/PG345.htm ) and compiled
by Senator Simitian's staff, Committee staff observed the
following:
1) The total number of reports of suspected elder and
dependent adult abuse jumped in the first year in which
SB 1018 was operative. Total reports of elder and
dependent adult abuse (including financial and other
types of abuse), increased by slightly over 8% between
2006 (the final year before SB 1018 became operative) and
2007 (the first year in which SB 1018 was operative).
This percentage change was significantly higher than the
year-to-year changes measured before 2006 and after 2007.
2) These increased reports of suspected abuse appear to
have resulted in an increase in the number of confirmed
cases of abuse. Although this observation cannot be
conclusively proven using the available data, the data
strongly suggest this to be the case. The total number
of suspected abuse cases reported each year is
approximately three times greater than number of cases
which are confirmed as actual abuse cases each year.
This observation holds across years preceding enactment
of SB 1018, and following enactment of SB 1018.
Logically, if the total number of suspected cases reported
to the authorities increased after enactment of SB 1018,
and if the percentage of those cases which were
ultimately confirmed as abuse remained roughly constant,
it is reasonable to infer that SB 1018 resulted in an
increase in the total number of confirmed cases.
2. Summary of Arguments in Support: Myriad organizations (see
list at the bottom of this analysis) sent letters of support
for SB 33. Supporters cite evidence that SB 1018 has been
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successful in increasing the number of elder and dependent
adult abuse cases that have been detected, since that law
went into effect in 2007. They also note the aging of the
California population, the financial vulnerability of many
older adults, and the related importance of detecting
possible elder financial abuse before significant harm to
the elder adult can be caused.
3. Summary of Arguments in Opposition: None received.
4. Prior and Related Legislation:
a. SB 1018 (Simitian), Chapter 140, Statutes of 2005:
Enacted the Elder and Dependent Adult Financial Abuse
Reporting Act, with a sunset date of January 1, 2013.
b. AB 2105 (DeSaulnier), 2007-08 Legislative Session:
Would have expanded the list of those who are mandated
reporters of elder and dependent adult financial abuse to
include California Finance Lenders Law and California
Residential Mortgage Lending Act licensees, and would
have added coursework in elder and dependent adult abuse
detection and reporting to the list of elective
continuing education courses available to real estate
licensees. Vetoed by Governor Schwarzenegger.
c. AB 518 (Wagner), 2011-12 Legislative Session:
Virtually identical to this bill.
LIST OF REGISTERED SUPPORT/OPPOSITION
Support
State Treasurer Bill Lockyer
AARP
Advisory Council of the Council on Aging Silicon Valley
Alzheimer's Association
Area 12 Agency on Aging
Berkeley-East Bay Gray Panthers
California Advocates for Nursing Home Reform
California Alliance for Retired Americans
California Association of Public Authorities for In-Home
Supportive Services
California Bankers Association
California Commission on Aging
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California District Attorneys Association
California Long Term Care Ombudsman Association
California Professional Firefighters
California Psychiatric Association
California School Employees Association
California Senior Legislature
California State Association of Counties
California State Sheriffs' Association
Catholic Charities Diocese of Stockton
City and County of San Francisco
Congress of California Seniors
Contra Costa County Area Agency on Aging
County of San Diego
County Welfare Directors Association
Gray Panthers Sacramento
Humboldt County Board of Supervisors
Huntington Hospital Senior Care Network
Independence at Home (a division of SCAN Health Plan)
In-Home Supportive Services Consortium of San Francisco
Junior Leagues of California
Kathleen Weidner, Long-Term Care Ombudsman Program Director,
Orange County
Council on Aging
Long-Term Care Ombudsman Program for Stanislaus County
Los Angeles County Board of Supervisors
Marin County Board of Supervisors
Mother Lode Long-Term Care Ombudsman Program
Multipurpose Senior Services Program Site Association
Older Women's League of California
Older Women's League of California, Sacramento Capitol Chapter
Orange County Council on Aging
Peace Officers Research Association of California
Professional Fiduciary Association of California
PSA 2 Area Agency on Aging
San Francisco Department of Aging and Adult Services
Santa Clara County Board of Supervisors
Siskiyou County Human Services Agency
Social Services
Solano County Health and Social Services Department
Sonoma County Area Agency on Aging
Sonoma County Board of Supervisors
Stanislaus Elder Abuse Prevention Alliance
Tehama County Department of Social Services
United Domestic Providers of America/AFSCME
Ventura County Board of Supervisors
Yolo County Sheriff's Department
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Opposition
None received
Consultant: Eileen Newhall (916) 651-4102