BILL NUMBER: SB 1051 CHAPTERED
BILL TEXT
CHAPTER 660
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2012
APPROVED BY GOVERNOR SEPTEMBER 27, 2012
PASSED THE SENATE AUGUST 23, 2012
PASSED THE ASSEMBLY AUGUST 22, 2012
AMENDED IN ASSEMBLY AUGUST 20, 2012
AMENDED IN ASSEMBLY AUGUST 6, 2012
AMENDED IN ASSEMBLY JUNE 18, 2012
AMENDED IN SENATE MAY 10, 2012
AMENDED IN SENATE APRIL 17, 2012
AMENDED IN SENATE MARCH 28, 2012
INTRODUCED BY Senators Liu and Emmerson
(Coauthors: Senators Anderson, Hancock, and Strickland)
(Coauthor: Assembly Member Conway)
FEBRUARY 8, 2012
An act to amend Sections 4427.5 and 15630 of, and to add Sections
4023 and 4415.5 to, the Welfare and Institutions Code, relating to
public social services, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1051, Liu. Reports of death, injury, and abuse: developmental
centers and state hospitals: mandated reporters.
Existing law vests in the State Department of Developmental
Services jurisdiction over state hospitals referred to as
developmental centers for the provision of residential care to
persons with developmental disabilities. Existing law requires a
developmental center to immediately report all resident deaths and
serious injuries of unknown origin to the appropriate local law
enforcement agency. Existing law establishes the Office of Protective
Services within the State Department of Developmental Services.
This bill would rename a certain position within the Office of
Protective Services as the Director of Protective Services, require
the director to meet specified qualifications, and require that the
director be appointed by and serve at the pleasure of the Secretary
of California Health and Human Services, as specified.
This bill would require the department to report certain events
involving death or harm involving a developmental center resident to
a designated protection and advocacy agency. The bill also would
require the State Department of State Hospitals to report the same
categories of events to the protection and advocacy agency, with
respect to a resident of a state mental hospital.
Existing law requires specified people, known as mandated
reporters, to report cases of elder or dependent adult abuse, as
defined. Failure to make a report as required by existing law is a
misdemeanor.
This bill would require mandated reporters in the State Department
of Developmental Services to immediately report suspected abuse to
the Office of Protective Services or to the local law enforcement
agency. By creating new duties for local officials, this bill would
impose a state-mandated local program. By expanding the scope of an
existing crime, the bill would impose a state-mandated local program.
This bill would incorporate additional changes to Section 4427.5
of the Welfare and Institutions Code proposed by SB 1522, to be
operative only if SB 1522 and this bill are both enacted, both bills
become effective on or before January 1, 2013, and this bill is
enacted last. This bill would also incorporate additional changes to
Section 15630 of the Welfare and Institutions Code proposed by AB 40,
to be operative only if AB 40 and this bill are both enacted, both
bills become effective on or before January 1, 2013, and this bill is
enacted last.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4023 is added to the Welfare and Institutions
Code, to read:
4023. (a) The State Department of State Hospitals shall report to
the agency described in subdivision (i) of Section 4900 the
following incidents involving a resident of a state mental hospital:
(1) Any unexpected or suspicious death, regardless of whether the
cause is immediately known.
(2) Any allegation of sexual assault, as defined in Section
15610.63, in which the alleged perpetrator is an employee or
contractor of a state mental hospital or of the Department of
Corrections and Rehabilitation.
(3) Any report made to the local law enforcement agency in the
jurisdiction in which the facility is located that involves physical
abuse, as defined in Section 15610.63, in which a staff member is
implicated.
(b) A report pursuant to this section shall be made no later than
the close of the first business day following the discovery of the
reportable incident.
SEC. 2. Section 4415.5 is added to the Welfare and Institutions
Code, to read:
4415.5. (a) The Chief of the Office of Protective Services, who
has the responsibility and authority to manage all protective service
components within the department's law enforcement and fire
protection divisions, including those at each state developmental
center, shall be known as the Director of Protective Services. The
director shall be an experienced law enforcement officer with a Peace
Officers Standards and Training Management Certificate or higher,
and with extensive management experience directing uniformed peace
officer and investigation operations.
(b) The Director of Protective Services shall be appointed by, and
shall serve at the pleasure of, the Secretary of California Health
and Human Services.
SEC. 3. Section 4427.5 of the Welfare and Institutions Code is
amended to read:
4427.5. (a) (1) A developmental center shall immediately report
all resident deaths and serious injuries of unknown origin to the
appropriate local law enforcement agency, which may, at its
discretion, conduct an independent investigation.
(2) The reporting requirements of this subdivision are in addition
to, and do not substitute for, the reporting requirements of
mandated reporters.
(b) (1) The department shall report to the agency described in
subdivision (i) of Section 4900 any of the following incidents
involving a resident of a developmental center:
(A) Any unexpected or suspicious death, regardless of whether the
cause is immediately known.
(B) Any allegation of sexual assault, as defined in Section
15610.63, in which the alleged perpetrator is a developmental center
or department employee or contractor.
(C) Any report made to the local law enforcement agency in the
jurisdiction in which the facility is located that involves physical
abuse, as defined in Section 15610.63, in which a staff member is
implicated.
(2) A report pursuant to this subdivision shall be made no later
than the close of the first business day following the discovery of
the reportable incident.
(c) The department shall do both of the following:
(1) Annually provide written information to every developmental
center employee regarding all of the following:
(A) The statutory and departmental requirements for mandatory
reporting of suspected or known abuse.
(B) The rights and protections afforded to individuals' reporting
of suspected or known abuse.
(C) The penalties for failure to report suspected or known abuse.
(D) The telephone numbers for reporting suspected or known abuse
or neglect to designated investigators of the department and to local
law enforcement agencies.
(2) On or before August 1, 2001, in consultation with employee
organizations, advocates, consumers, and family members, develop a
poster that encourages staff, residents, and visitors to report
suspected or known abuse and provides information on how to make
these reports.
SEC. 3.5. Section 4427.5 of the Welfare and Institutions Code is
amended to read:
4427.5. (a) (1) A developmental center shall immediately report
the following incidents involving a resident to the local law
enforcement agency having jurisdiction over the city or county in
which the developmental center is located, regardless of whether the
Office of Protective Services has investigated the facts and
circumstances relating to the incident:
(A) A death.
(B) A sexual assault, as defined in Section 15610.63.
(C) An assault with a deadly weapon, as described in Section 245
of the Penal Code, by a nonresident of the developmental center.
(D) An assault with force likely to produce great bodily injury,
as described in Section 245 of the Penal Code.
(E) An injury to the genitals when the cause of the injury is
undetermined.
(F) A broken bone, when the cause of the break is undetermined.
(2) If the incident is reported to the law enforcement agency by
telephone, a written report of the incident shall also be submitted
to the agency, within two working days.
(3) The reporting requirements of this subdivision are in addition
to, and do not substitute for, the reporting requirements of
mandated reporters, and any other reporting and investigative duties
of the developmental center and the department as required by law.
(4) Nothing in this subdivision shall be interpreted to prevent
the developmental center from reporting any other criminal act
constituting a danger to the health or safety of the residents of the
developmental center to the local law enforcement agency.
(b) (1) The department shall report to the agency described in
subdivision (i) of Section 4900 any of the following incidents
involving a resident of a developmental center:
(A) Any unexpected or suspicious death, regardless of whether the
cause is immediately known.
(B) Any allegation of sexual assault as defined in Section
15610.63, in which the alleged perpetrator is a developmental center
or department employee or contractor.
(C) Any report made to the local law enforcement agency in the
jurisdiction in which the facility is located that involves physical
abuse, as defined in Section 15610.63, in which a staff member is
implicated.
(2) A report pursuant to this subdivision shall be made no later
than the close of the first business day following the discovery of
the reportable incident.
(c) The department shall do both of the following:
(1) Annually provide written information to every developmental
center employee regarding all of the following:
(A) The statutory and departmental requirements for mandatory
reporting of suspected or known abuse.
(B) The rights and protections afforded to individuals' reporting
of suspected or known abuse.
(C) The penalties for failure to report suspected or known abuse.
(D) The telephone numbers for reporting suspected or known abuse
or neglect to designated investigators of the department and to local
law enforcement agencies.
(2) On or before August 1, 2001, in consultation with employee
organizations, advocates, consumers, and family members, develop a
poster that encourages staff, residents, and visitors to report
suspected or known abuse and provides information on how to make
these reports.
SEC. 4. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, 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.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect, or is told by an
elder or dependent adult that he or she has experienced behavior,
including an act or omission, constituting physical abuse, as defined
in Section 15610.63, abandonment, abduction, isolation, financial
abuse, or neglect, or reasonably suspects that abuse, shall report
the known or suspected instance of abuse by telephone or through a
confidential Internet reporting tool, as authorized by Section 15658,
immediately or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report
shall be made through the confidential Internet reporting tool
established in Section 15658, within two working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsperson or the local law
enforcement agency.
The local ombudsperson and the local law enforcement agency shall,
as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day program, as defined in paragraph (2)
of subdivision (a) of Section 1502 of the Health and Safety Code.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of State Hospitals
or the State Department of Developmental Services, or to the local
law enforcement agency.
(i) Except in an emergency, the local law enforcement agency
shall, as soon as practicable, report any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(ii) Mandated reporters of the State Department of Developmental
Services shall immediately report suspected abuse to the Office of
Protective Services or to the local law enforcement agency.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) This subdivision shall not be construed to modify or limit a
clergy member's duty to report known or suspected elder and dependent
adult abuse if he or she is acting in the capacity of a care
custodian, health practitioner, or employee of an adult protective
services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident if all of the following conditions exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63, abandonment, abduction,
isolation, financial abuse, or neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident if all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsperson, have access to plans
of care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsperson program. Except in an emergency, the local ombudsperson
shall report any case of known or suspected abuse to the State
Department of Public Health and any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of State
Hospitals or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsperson. Except in
an emergency, the local ombudsperson and the local law enforcement
agency shall report any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) If two or more mandated reporters are present and jointly have
knowledge or reasonably suspect that types of abuse of an elder or a
dependent adult for which a report is or is not mandated have
occurred, and there is agreement among them, the telephone report or
Internet report, as authorized by Section 15658, may be made by a
member of the team selected by mutual agreement, and a single report
may be made and signed by the selected member of the reporting team.
Any member who has knowledge that the member designated to report has
failed to do so shall thereafter make the report.
(e) A telephone report or Internet report, as authorized by
Section 15658, of a known or suspected instance of elder or dependent
adult abuse shall include, if known, the name of the person making
the report, the name and age of the elder or dependent adult, the
present location of the elder or dependent adult, the names and
addresses of family members or any other adult responsible for the
elder's or dependent adult's care, the nature and extent of the elder'
s or dependent adult's condition, the date of the incident, and any
other information, including information that led that person to
suspect elder or dependent adult abuse, as requested by the agency
receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, in violation of this section, is a misdemeanor,
punishable by not more than six months in the county jail, by a fine
of not more than one thousand dollars ($1,000), or by both that fine
and imprisonment. Any mandated reporter who willfully fails to
report, or impedes or inhibits a report of, physical abuse, as
defined in Section 15610.63, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, if that abuse results in death or great
bodily injury, shall be punished by not more than one year in a
county jail, by a fine of not more than five thousand dollars
($5,000), or by both that fine and imprisonment. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
SEC. 4.5. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent
adult, whether or not he or she receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, 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.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect, or is told by an
elder or dependent adult that he or she has experienced behavior,
including an act or omission, constituting physical abuse, as defined
in Section 15610.63, abandonment, abduction, isolation, financial
abuse, or neglect, or reasonably suspects that abuse, shall report
the known or suspected instance of abuse by telephone or through a
confidential Internet reporting tool, as authorized by Section 15658,
immediately or as soon as practicably possible. If reported by
telephone, a written report shall be sent, or an Internet report
shall be made through the confidential Internet reporting tool
established in Section 15658, within two working days:
(A) If the suspected or alleged abuse is physical abuse, as
defined in Section 15610.63, and the abuse occurred in a long-term
care facility, except a state mental health hospital or a state
developmental center, the following shall occur:
(i) If the suspected abuse results in serious bodily injury, a
telephone report shall be made to the local law enforcement agency
immediately, and no later than within two hours of the mandated
reporter observing, obtaining knowledge of, or suspecting the
physical abuse, and a written report shall be made to the local
ombudsman, the corresponding licensing agency, and the local law
enforcement agency within two hours of the mandated reporter
observing, obtaining knowledge of, or suspecting the physical abuse.
(ii) If the suspected abuse does not result in serious bodily
injury, a telephone report shall be made to the local law enforcement
agency within 24 hours of the mandated reporter observing, obtaining
knowledge of, or suspecting the physical abuse, and a written report
shall be made to the local ombudsman, the corresponding licensing
agency, and the local law enforcement agency within 24 hours of the
mandated reporter observing, obtaining knowledge of, or suspecting
the physical abuse.
(iii) When the suspected abuse is allegedly caused by a resident
with a physician's diagnosis of dementia, and there is no serious
bodily injury, as reasonably determined by the mandated reporter,
drawing upon his or her training or experience, the reporter shall
report to the local ombudsman or law enforcement agency by telephone,
immediately or as soon as practicably possible, and by written
report, within 24 hours.
(iv) When applicable, reports made pursuant to clauses (i) and
(ii) shall be deemed to satisfy the reporting requirements of the
federal Elder Justice Act of 2009, as set out in Subtitle H of the
federal Patient Protection and Affordable Care Act (Public Law
111-148), Section 1418.91 of the Health and Safety Code, and Section
72541 of Title 22 of California Code of Regulations. When a local law
enforcement agency receives an initial report of suspected abuse in
a long-term care facility pursuant to this subparagraph, the local
law enforcement agency may coordinate efforts with the local
ombudsman to provide the most immediate and appropriate response
warranted to investigate the mandated report. The local ombudsman and
local law enforcement agencies may collaborate to develop protocols
to implement this subparagraph.
(B) Notwithstanding the rulemaking provisions of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, or any other law, the department may implement
subparagraph (A), in whole or in part, by means of all-county
letters, provider bulletins, or other similar instructions without
taking regulatory action.
(C) If the suspected or alleged abuse is abuse other than physical
abuse, and the abuse occurred in a long-term care facility, except a
state mental health hospital or a state developmental center, a
telephone report and a written report shall be made to the local
ombudsman or the local law enforcement agency.
(D) With regard to abuse reported pursuant to subparagraphs (A)
and (C), the local ombudsman and the local law enforcement agency
shall, as soon as practicable, except in the case of an emergency or
pursuant to a report required to be made pursuant to clause (v), in
which case these actions shall be taken immediately, do all of the
following:
(i) Report to the State Department of Public Health any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day program, as defined in paragraph (2)
of subdivision (a) of Section 1502 of the Health and Safety Code.
(iii) Report to the State Department of Public Health and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section
1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(v) Report all cases of known or suspected physical abuse and
financial abuse to the local district attorney's office in the county
where the abuse occurred.
(E) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of State Hospitals
or the State Department of Developmental Services, or to the local
law enforcement agency.
(i) Except in an emergency, the local law enforcement agency
shall, as soon as practicable, report any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(ii) Mandated reporters of the State Department of Developmental
Services shall immediately report suspected abuse to the Office of
Protective Services or to the local law enforcement agency.
(F) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) (A) A mandated reporter who is a clergy member who acquires
knowledge or reasonable suspicion of elder or dependent adult abuse
during a penitential communication is not subject to paragraph (1).
For purposes of this subdivision, "penitential communication" means a
communication that is intended to be in confidence, including, but
not limited to, a sacramental confession made to a clergy member who,
in the course of the discipline or practice of his or her church,
denomination, or organization is authorized or accustomed to hear
those communications and under the discipline tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(B) This subdivision shall not be construed to modify or limit a
clergy member's duty to report known or suspected elder and dependent
adult abuse if he or she is acting in the capacity of a care
custodian, health practitioner, or employee of an adult protective
services agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3) (A) A mandated reporter who is a physician and surgeon, a
registered nurse, or a psychotherapist, as defined in Section 1010 of
the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident if all of the following conditions exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, as defined in Section 15610.63, abandonment, abduction,
isolation, financial abuse, or neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4) (A) In a long-term care facility, a mandated reporter shall
not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident if all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Public Health
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsman, have access to plans of
care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsman program. Except in an emergency, the local ombudsman shall
report any case of known or suspected abuse to the State Department
of Public Health and any case of known or suspected criminal activity
to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is
practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of State
Hospitals or the State Department of Developmental Services or to a
local law enforcement agency. Except in an emergency, the local law
enforcement agency shall report any case of known or suspected
criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as
soon as is practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) If two or more mandated reporters are present and jointly have
knowledge or reasonably suspect that types of abuse of an elder or a
dependent adult for which a report is or is not mandated have
occurred, and there is agreement among them, the telephone report or
Internet report, as authorized by Section 15658, may be made by a
member of the team selected by mutual agreement, and a single report
may be made and signed by the selected member of the reporting team.
Any member who has knowledge that the member designated to report has
failed to do so shall thereafter make the report.
(e) A telephone report or Internet report, as authorized by
Section 15658, of a known or suspected instance of elder or dependent
adult abuse shall include, if known, the name of the person making
the report, the name and age of the elder or dependent adult, the
present location of the elder or dependent adult, the names and
addresses of family members or any other adult responsible for the
elder's or dependent adult's care, the nature and extent of the elder'
s or dependent adult's condition, the date of the incident, and any
other information, including information that led that person to
suspect elder or dependent adult abuse, as requested by the agency
receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report, or impeding or inhibiting a report of,
physical abuse, as defined in Section 15610.63, abandonment,
abduction, isolation, financial abuse, or neglect of an elder or
dependent adult, in violation of this section, is a misdemeanor,
punishable by not more than six months in the county jail, by a fine
of not more than one thousand dollars ($1,000), or by both that fine
and imprisonment. Any mandated reporter who willfully fails to
report, or impedes or inhibits a report of, physical abuse, as
defined in Section 15610.63, abandonment, abduction, isolation,
financial abuse, or neglect of an elder or dependent adult, in
violation of this section, if that abuse results in death or great
bodily injury, shall be punished by not more than one year in a
county jail, by a fine of not more than five thousand dollars
($5,000), or by both that fine and imprisonment. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until a law enforcement agency specified in paragraph (1) of
subdivision (b) of Section 15630 discovers the offense.
(i) For purposes of this section, "dependent adult" shall have the
same meaning as in Section 15610.23.
SEC. 5. Section 3.5 of this bill incorporates amendments to
Section 4427.5 of the Welfare and Institutions Code proposed by both
this bill and Senate Bill 1522. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2013, (2) each bill amends Section 4427.5 of the Welfare and
Institutions Code, and (3) this bill is enacted after Senate Bill
1522, in which case Section 4427.5 of the Welfare and Institutions
Code, as amended by Senate Bill 1522, shall remain operative only
until the operative date of this bill, at which time Section 3.5 of
this bill shall become operative, and Section 3 of this bill shall
not become operative.
SEC. 6. Section 4.5 of this bill incorporates amendments to
Section 15630 of the Welfare and Institutions Code proposed by both
this bill and Assembly Bill 40. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2013, but this bill becomes operative first (2) each bill amends
Section 15630 of the Welfare and Institutions Code, and (3) this bill
is enacted after Assembly Bill 40, in which case Section 15630 of
the Welfare and Institutions Code, as amended by Section 4 of this
bill, shall remain operative only until January 1, 2013, at which
time Section 4.5 of this bill shall become operative, and Section 4
of this bill shall not become operative.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 8. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to ensure that the applicable investigative structure
adequately protects residents of developmental centers and other
vulnerable persons from harm at the earliest possible time, it is
necessary for this act to take effect immediately.