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.









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          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 








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               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 








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            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).]








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          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 








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               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 








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            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  :  








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             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 








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               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 








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               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