BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

                                                                     1
                                                                     5
                                                                     2
          SB 1522 (Leno)                                             2
          As Amended April 26, 2012
          Hearing date: May 8, 2012
          Welfare and Institutions Code (URGENCY)
          MK: dl

                                DEVELOPMENTAL CENTERS:

                               REPORTING REQUIREMENTS  


                                       HISTORY

          Source:  Disability Rights California

          Prior Legislation: SB 110 (Liu) - Chapter 617, Stats. 2010
                       AB 2100 (Wolk) - Chapter 481, Stats. 2008
                       AB 1188 (Wolk) - Chapter 16, Stats. 2005
                       AB 430 (Cardenas) - Chapter 171, Stats. 2001

          Support: The Association of Regional Center Agencies; The Arc 
                   California; United Cerebral Palsy California; an 
                   individual

          Opposition:None known

           

                                         KEY ISSUE
           
          SHOULD THE LAW SPECIFY THE TYPES OF SERIOUS INJURIES INVOLVING A 
          RESIDENT THAT MUST BE REPORTED TO A LOCAL LAW ENFORCEMENT AGENCY BY 
          A DEVELOPMENTAL CENTER?




                                                                     (More)






                                                             SB 1522 (Leno)
                                                                     Page 2








                                          
                                       PURPOSE

          The purpose of this bill is to specify what types of serious 
          injuries a developmental center must report to a local law 
          enforcement agency.

           Existing law  requires mandated reporters to report the physical 
          and financial abuse of elderly and dependent persons in a 
          long-term care facility to local ombudsperson or local law 
          enforcement agency.  (Welfare and Institutions Code (WIC) § 
          15630(b)(A).)

           Existing law  provides a mandated reporter in a long-term care 
          facility other than a state mental health hospital or state 
          developmental center, who has knowledge, or reasonably suspects 
          abuse that is not mandated to be reported, may report the known 
          or suspected abuse to the long-term care ombudsperson program.  
          Except in an emergency, the local ombudsperson shall report the 
          case of known or suspected abuse to the Department of Health 
          Services.  (WIC § 15630(c)(1) to (2).)

           Existing law  requires the local ombudsperson and local law 
          enforcement agency, except in an emergency, to report any case 
          of known or suspected abuse to:

                 The Department of Health Services for a case occurring 
               in a long-term health care facility;
                 The Department of Social Services for a case occurring 
               in a residential care facility for the elderly or in an 
               adult day care facility;
                 The Department of Health Services and the California 
               Department of Aging for a case occurring in an adult day 
               health care center; or,




                                                                     (More)






                                                             SB 1522 (Leno)
                                                                     Page 3



                 The Bureau of Medi-Cal Fraud and Elder Abuse.  (WIC § 
               15630(b)(1)(A)(i) to (iv).)

           Existing law  provides that if the suspected or alleged abuse 
          occurred in a state mental hospital or state developmental 
          center, the report shall be made to designated investigators of 
          the State Department of Mental Health or the State Department of 
          Developmental services, or to the local law enforcement agency. 
          (WIC §15630(b)(1)(B).)
           
           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. This 
          reporting requirement does not substitute for the reporting 
          requirement of a mandated reporter. (WIC § 4427.5)

           This bill  instead provides that 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 death;
                 A sexual assault;
                 An assault with a deadly weapon or force likely to 
               produce great bodily injury; or
                 An injury to the genitals when the cause of the injury 
               in undetermined.

           This bill  provides that 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.

           Existing law  provides that the reporting requirements in Welfare 




                                                                     (More)






                                                             SB 1522 (Leno)
                                                                     Page 4



          and Institutions Code Section 4427.5 are in addition to and do 
          not substitute for the reporting requirements of mandated 
          reporters. (W&I § 4427.5)

           This bill  also provides that the reporting requirements are in 
          addition to any other reporting and investigative duties of the 
          developmental center and the department as required by law.

           
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
































                                                                     (More)










          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.

          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 




                                                                     (More)






                                                             SB 1522 (Leno)
                                                                     Page 6



          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and
                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.


                                      COMMENTS

          1.   Need for This Bill  

          According to the author:

               Current law (Welfare & Institutions Code Section 











                                                             SB 1522 (Leno)
                                                                     Page 7



               4427.5) requires a developmental center to 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 (emphasis added)."  The 
               Department of Developmental Services has an internal 
               policy - which has not been adopted as a formal 
               regulation as required by California law - about which 
               type of "serious injuries of unknown origin" must be 
               reported to local law enforcement.  

               According to testimony at the recent informational 
               hearing by the Senate Human Services Committee, this 
               internal DSS policy calls for virtually all injuries of 
               unknown origin, even relatively minor ones requiring 
               only five sutures for treatment, to local law 
               enforcement.  Testimony at the hearing indicated that 
               the number of reports transmitted to local law 
               enforcement agencies may dilute the effectiveness of 
               this reporting requirement, and local law enforcement 
               agencies may be more likely to respond to and 
               investigate incidents if they received fewer reports 
               about more serious incidents.

          2.   Specifying What to Report to Local Law Enforcement  

          Under existing law, developmental centers are required to report 
          the death or serious injury of one of their residents to local 
          law enforcement.  This bill instead provides that the following 
          specified incidents shall be reported to the local police:

                 A death;
                 A sexual assault;
                 An assault with a deadly weapon or force likely to 
               produce great bodily injury; or
                 An injury to the genitals when the cause of the injury 
               is undetermined.

          The concern is that under existing law there is no definition of 











                                                             SB 1522 (Leno)
                                                                     Page 8



          serious injury so no consistency in what is reported and an over 
          reporting of incidents that could easily be investigated by the 
          Office of Protective Services.  The intent is to specify what 
          needs to be reported to local law enforcement allowing law 
          enforcement to investigate the most serious cases and not be 
          overburdened unnecessarily.

          3.   Other Legislation  

          SB 1051 (Liu) also being heard today, would require DDS to 
          report to the state-designated protection and advocacy agency 
          any unexpected or suspicious death, sexual assault allegation 
          implicating an employee of a developmental center or state 
          mental hospital and any report made to a local law enforcement 
          agency involving developmental center residents, and makes other 
          changes.

                                   ***************