BILL ANALYSIS Ó SB 1522 Page 1 Date of Hearing: July 3, 2012 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Tom Ammiano, Chair SB 1522 (Leno) - As Amended: June 18, 2012 SUMMARY : Provides a list of specified injuries and incidents that a developmental center must report to the local law enforcement agency having jurisdiction over the city or county in which the developmental center is located. Specifically, this bill : 1)Requires a developmental center to immediately report the following incidents to the local law enforcement agency: a) A death; b) A sexual assault, as defined; c) An assault with a deadly weapon by a nonresident of the developmental center; d) An assault with force likely to produce great bodily injury; e) An injury to the genitals when the cause of the injury is undetermined; and f) A broken bone, when the cause of the break is undetermined. 2)States 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)Clarifies that the reporting requirements of this bill 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. SB 1522 Page 2 4)Provides that nothing in the bill's provisions 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. 5)Contains an urgency clause. EXISTING LAW: 1)Vests in the State Department of Developmental Services (DDS) jurisdiction over state hospitals referred to as developmental centers for the provision of residential care to persons with developmental disabilities. (Welfare and Institutions Code Section 4440.) 2)Provides that 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. The reporting requirements of this subdivision are in addition to, and do not substitute for, the reporting requirements of mandated reporters. ÝWelfare and Institutions Code Section 4427.5(a).] 3)Mandates DDS to do the following: a) Annually provide written information to every developmental center employee regarding all of the following: i) The statutory and departmental requirements for mandatory reporting of suspected or known abuse; ii) The rights and protections afforded to individuals' reporting of suspected or known abuse; iii) The penalties for failure to report suspected or known abuse; and iv) The telephone numbers for reporting suspected or known abuse or neglect to designated investigators of the department and to local law enforcement agencies. b) On or before August 1, 2001, in consultation with SB 1522 Page 3 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. ÝWelfare and Institutions Code Section 4427.5(b).] 4)States that 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. ÝWelfare and Institutions Code Section 15630(a).] 5)States that 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, 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, 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, immediately or as soon as practicably possible. ÝWelfare and Institutions Code Section 15630(b)(1).] 6)Provides 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 to the specified agency. ÝWelfare and Institutions Code Section 15630(c)(1).] 7)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 SB 1522 Page 4 ombudsperson program. Except in an emergency, the local ombudsperson shall report the case of known or suspected abuse to the Department of Health Services. ÝWelfare and Institutions Code Section 15630(c)(2).] 8)Provides 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 Mental Health 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. ÝWelfare and Institutions Code Section 15630(c)(3).] 9)If the suspected or alleged abuse occurred in a place other than those specified, the report may be made to the county adult protective services agency. ÝWelfare and Institutions Code Section 15630(c)(3).] 10)Provides if the conduct involves criminal activity other than physical abuse, abandonment, abduction, isolation, financial abuse, or neglect, it may be immediately reported to the appropriate law enforcement agency. ÝWelfare and Institutions Code Section 15630(d).] 11)States that a failure to report, or impeding or inhibiting a report of, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than $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, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of this section, where 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 $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, the failure to report is a continuing offense until a law enforcement agency as specified discovers the offense. ÝWelfare and Institutions Code Section 15630(h).] SB 1522 Page 5 12)Defines "dependent adult" as any person between the ages of 18 and 64 years who resides in California 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; and includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined. ÝWelfare and Institutions Code Sections 15610.23 and 15630(i).] FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "California Watch/The Center for Investigative Reporting recently issued a report that was very critical of the investigation of crimes that have occurred in the state's Developmental Centers. (http://californiawatch.org/broken-shield.) Specifically, the investigation showed that crimes were not properly investigated by the centers' in-house investigative unit, the Office of Protective Services (OPS), and its law enforcement staff were not adequately trained or supervised. "The California Watch investigation profiled a number of crimes, including the following: a) The 2005 death of a consumer at the Sonoma Developmental Center where OPS assigned the case to a detective more than 24 hours after a caregiver discovered the consumer lying on the floor and bleeding from his mouth. By then, any evidence at the scene of the consumer's death was gone; b) The 2007 death of a patient at Fairview Developmental Center in which a consumer was found lying on the floor of his room with a caregiver standing over him. OPS officers failed to collect blood samples, fingerprints and other physical specimens from his room. The lead detective, a former nurse, had minimal police training and no experience investigating suspicious deaths. Homicide detectives from the Seattle and Chicago police departments reviewed the investigation and identified half a dozen mistakes by SB 1522 Page 6 officers and detectives at Fairview, including the failure to secure the scene, failure to promptly interview witnesses, and failure to obtain medical evidence that the consumer's fatal injury (a broken neck) was inconsistent with the caregiver's explanation of the incident; and c) The 2010 sexual assault of a female consumer at the Sonoma Developmental Center. OPS investigated the case but made no arrests. "In other states, local or state police are generally responsible for investigating crimes at state institutions. The status quo situation at development centers in California in which crimes go uninvestigated and not prosecuted is an unacceptable violation of the rights of developmentally disabled consumers to equal protection of the law. "SB 1522 requires a developmental center to immediately report serious crimes, including a death, a sexual assault, or an assault with a deadly weapon or force likely to produce great bodily injury, to the local law enforcement agency, regardless of whether the Office of Protective Services has investigated the facts and circumstances relating to the incident. SB 1522 also requires the developmental center to submit a written report of the incident within two working days of any telephone report to that local law enforcement agency." 2)Background : According to the background materials provided by the author, "Current law (Welfare & Institutions Code Section 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 SB 1522 Page 7 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." 3)Investigating Incidents that Occur in Developmental Centers : When a patient at one of the state's developmental centers is seriously injured or dies, the following occurs: "Employees must notify the facility's police force, OPS, whenever a patient dies is or seriously injured. OPS officers are required to respond immediately and secure the scene for evidence. OPS must then notify the coroner's office and a local law enforcement agency of all deaths or serious injuries. The developmental center must also report patient deaths to the state Department of Public Health, which regulates facilities. Doctors, nurses and caretakers are mandatory reporters. "Local police or sheriff's departments can open criminal investigations at their discretion. OPS conducts criminal investigations and internal administrative reviews of suspicious deaths. Coroner and medical examiner officers can perform autopsies to find the cause of death. The Department of Public Heath investigates to determine if facility errors contributed to the death. If regulators find the developmental center at fault, they can issue fines and AA citations which can put the facility's license in jeopardy. However, the state has not revoked the license of its own centers even after they receive multiple AA citations. Disability Rights California, a nonprofit group, has authority under federal and state law to investigate abuse of the disabled and publish its findings. It has access to developmental patient records and police files the public does not. "City police and sheriff's departments can refer the results of their investigations to district attorneys' offices, which decide whether to file criminal charges. Detectives with OPS must show their reports to lawyers for the state DDS, which operates the centers, before sending cases out to prosecutors." ÝAlvarado and Springfield, Who is Accountable for Suspected Abuse at Developmental Centers? California Watch (Feb. 23, 2012).] 4)Arguments in Support : SB 1522 Page 8 a) According to Developmental Disabilities Area Board 10 , "SB 1522 revises the requirements for when the State Developmental Center Office of Protective Services must report an incident to the local law enforcement agency. Currently, all death and serious injuries of unknown cause must be reported. SB 1522 would revise this to be more specific categories: death, sexual assault, assault with a deadly weapon or force likely to cause great bodily injury, or injury to the genitals when the cause of injury is undetermined. It appears the intent of the bill is to limit the number of incidents that are reported in the hopes that local law enforcement will take a more active role with those incidents that are reported. Because we believe this bill is likely to result in more investigations by local law enforcement agencies rather than less, we support SB 1522." b) According to The Arc California and United Cerebral Palsy California Coalition , "Crime against residents of developmental centers has been and continues to be a scandalous problem. Your bill will help substantially, and we support it with or without amendments. However, we also hope for amendments to this bill and/or SB 1051(Liu) to assure that the Office of Protective Services responds promptly to crime reports, that qualified investigators are responsible for followup, and that mandated reporters who fail to report are arrested, prosecuted and punished, appropriately for this serious crime." 5)Related Legislation : a) SB 1051 (Liu) requires mandated reporters within developmental centers to immediately report suspected abuse to OPS or to the local law enforcement agency, and establishes criteria for the appointment of a Director of OPS. SB 1051 is pending hearing by the Assembly Committee on Appropriations. b) AB 40 (Yamada) requires a mandated reporter to report to the local ombudsman, the corresponding licensing agency, and the local law enforcement agency within 24 hours of the reporter observing, obtaining knowledge of, or suspecting the physical abuse of an elder or dependent adult. AB 40 is pending hearing by the Senate Committee on SB 1522 Page 9 Appropriations. c) SB 718 (Vargas), Chapter 92, Statutes of 2011, allows mandated reporters of elder and dependent adult abuse to make reports through the Internet, as specified. 6)Previous Legislation : a) SB 110 (Liu), Chapter 617, Statutes of 2010, requires law enforcement to retain exclusive responsibility for criminal investigations against elders, dependent adults and persons with disabilities when Adult Protective Services and local ombudsman are conducting concurrent investigations. b) AB 2100 (Wolk), Chapter 481, Statutes of 2008, requires the local ombudsperson and the local law enforcement agency to immediately report cases of known or suspected physical abuse, which includes sexual abuse, and financial abuse to the local district attorney's office in the county where the abuse occurred. c) AB 1765 (Blakeslee), of the 2007-08 Legislative Session, would have required a mandated reporter in a long term care facility report suspected abuse to both the adult protective services agency and the local law enforcement agency.. AB 1765 was never heard by this Committee. d) AB 1188 (Wolk), Chapter 16, Statutes of 2005, makes the impeding or inhibiting by a supervisor or administrator of the report of child, elder, or dependent abuse punishable by imprisonment in the county jail for up to 6 months, or by a fine of up to $1,000, or by both that fine and imprisonment. AB 1188 provides that any mandated reporter who willfully and unlawfully fails to report abuse or neglect, or any person who impedes or inhibits a report of abuse or neglect, where that abuse or neglect results in death or great bodily injury, shall be punished by imprisonment in the county jail for up to one year, a fine of up to $5,000, or both that fine and imprisonment. e) AB 430 (Cardenas), Chapter 171, Statutes of 2002, requires, among other provisions, a developmental center to immediately report all resident deaths and serious injuries of unknown origin to the appropriate law enforcement agency SB 1522 Page 10 that may, at its discretion, conduct an independent investigation. AB 430 also requires the State Department of Developmental Services to annually provide written information to every developmental center employee regarding suspected or known abuse, and, on or before August 1, 2001, to develop a poster that encourages staff, residents, and visitors to report suspected or known abuse and provides information on how to make these reports. REGISTERED SUPPORT / OPPOSITION : Support Disability Rights of California (Sponsor) Association of Regional Center Agencies California Association of Psychiatric Technicians California Association of State Hospital Parent Councils for the Retarded Developmental Disabilities Area Board 10 Developmental Disabilities Area Board 3 Disability Rights California Los Angeles County District Attorney's Office One private individual The Arc California United Cerebral Palsy - California Coalition Opposition None Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744