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. ***************