BILL NUMBER: AB 477 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 24, 2013
AMENDED IN SENATE JUNE 14, 2013
AMENDED IN ASSEMBLY MAY 6, 2013
AMENDED IN ASSEMBLY APRIL 15, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 19, 2013
An act to add Section 1208 to the Civil Code, to add Section 8215
to the Government Code, and to amend Sections 15632, 15633,
15634, 15637, 15640, and 15655.5 of, and to add Section 15630.2
to to, the Welfare and Institutions
Code, relating to elder and dependent adult abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 477, as amended, Chau. Elder and dependent adult abuse:
mandated reporting.
Existing law, the Financial Elder Abuse Reporting Act of 2005,
establishes procedures for the reporting of suspected financial abuse
of an elder or dependent adult, as defined. These procedures require
mandated reporters of suspected financial abuse of an elder or
dependent adult, as defined, to report known or suspected instances
of financial abuse of an elder or dependent adult, as specified.
Existing law makes a violation of the reporting requirements subject
to a civil penalty.
This bill would include notaries public in the definition of
mandated reporters of suspected financial abuse of an elder or
dependent adult and would require a notary public, except as
provided, to report known or suspected instances of financial abuse
of an elder or dependent adult if the notary public has observed or
has knowledge of suspected financial abuse in connection with
providing notary services. The bill would also prohibit a notary
public from performing a notarial act for an elder or dependent adult
under specified circumstances, including when, in the notary public'
s judgment, the elder or dependent adult is not acting of his or her
own free will.
Existing law makes specified reports, including reports of known
or suspected financial abuse of an elder or dependent adult,
confidential. Any violation of the confidentiality of these reports
is a misdemeanor.
This bill would extend that confidentiality to a notary public's
report of known or suspected financial abuse of an elder or dependent
adult. By increasing the scope of a crime, the bill would impose a
state-mandated local program.
Existing law authorizes a care custodian, clergy member, health
practitioner, and an employee of an adult protective services agency
or a law enforcement agency to present a claim to the California
Victim Compensation and Government Claims Board for reasonable
attorney's fees incurred in any action against that person for making
a report of known or suspected abuse of an elder or dependent adult,
as specified.
This bill would additionally authorize a mandated reporter of
known or suspected financial abuse of an elder or dependent adult to
present a claim to the board for reasonable attorney's fees incurred
in an action against that person for making a report pursuant to
these provisions.
Existing law requires a county adult protective services agency to
report every known or suspected instance of abuse of an elder or
dependent adult, as specified, to any public agency given
responsibility for investigation in that jurisdiction of cases of
elder and dependent adult abuse. Existing law also requires a county
adult protective services agency to provide mandated reporters of
suspected financial abuse of an elder or dependent adult with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under these
provisions.
The bill would require a county adult protective services agency
to additionally report a known or suspected instance of abuse
reported by a notary public and to additionally provide instructional
materials to notaries public. By increasing the duties of local
agencies, this bill would impose a state-mandated local program.
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.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1208 is added to the Civil Code, to read:
1208. A notary public performing services under this article
shall comply with the reporting mandate specified in Section 15630.2
of the Welfare and Institutions Code.
SEC. 2. Section 8215 is added to the Government Code, to read:
8215. A notary public shall comply with the reporting mandate
specified in Section 15630.2 of the Welfare and Institutions Code.
Any violation of that reporting mandate shall be punished pursuant to
that section.
SEC. 3. Section 15630.2 is added to the Welfare and Institutions
Code, to read:
15630.2. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" or
"mandated reporter" means notaries public.
(b) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(c) (1) Any notary public who, in connection with providing notary
services, has observed or has knowledge of suspected financial abuse
of an elder or dependent adult shall report the known or suspected
instance of financial abuse by telephone or through a confidential
Internet reporting tool, as authorized pursuant to 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 to the local
adult protective services agency or the local law enforcement agency.
(2) A notary public who is also an officer or employee of a
financial institution is subject to the reporting requirement under
Section 15630.1 and not the reporting requirement under this section.
(3) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report or Internet report,
as authorized by Section 15658, may be made by a member of the
reporting team who is selected by mutual agreement. A single report
may be made and signed by the selected member of the reporting team.
Any member of the team who has knowledge that the member designated
to report has failed to do so shall thereafter make that report.
(4) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(d) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(e) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
mandated reporter to the party bringing the action. Subdivision (h)
of Section 15630 shall not apply to violations of this section.
(f) (1) The civil penalty
provided for in subdivision (e) shall be recovered only in a civil
action brought against the mandated reporter by the Attorney General,
district attorney, or county counsel. No action shall be brought
under this section by any person other than the Attorney General,
district attorney, or county counsel. Multiple actions for the civil
penalty shall not be brought for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005
shall be construed to limit, expand, or otherwise modify any civil
liability or remedy that may exist under this or any other law.
(g) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (c) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(h) Reports of suspected financial abuse of an elder or dependent
adult made by a mandated reporter pursuant to this section are
covered under subdivision (b) of Section 47 of the Civil Code.
(i) A notary public shall not perform a notarial act for an elder
or dependent adult in the either of following circumstances:
(1) The elder or dependent adult has a demeanor that causes the
notary public to have a compelling doubt about whether the elder or
dependent adult understands the consequences of the transaction or
document requiring the notarial act.
(2) In the notary public's judgment, the elder or dependent adult
is not acting of his or her own free will.
SEC. 4. Section 15632 of the Welfare
and Institutions Code is amended to read:
15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
(b) Nothing in this chapter shall be interpreted as
requiring an attorney to violate his or her oath and duties pursuant
to Section 6067 or require the disclosure of
information protected by the attorney-client privilege or the duty
under subdivision (e) of Section 6068 of the Business and
Professions Code, and Article 3 (commencing with Section
950) of Chapter 4 of Division 8 of the Evidence Code.
SEC. 5. Section 15633 of the Welfare
and Institutions Code is amended to read:
15633. (a) The reports made pursuant to Sections 15630, 15630.1,
15630.2, and 15631 shall be confidential and may be
disclosed only as provided in subdivision (b). Any violation of the
confidentiality required by this chapter is a misdemeanor punishable
by not more than six months in the county jail, by a fine of five
hundred dollars ($500), or by both that fine and imprisonment.
(b) Reports of suspected abuse of an elder or dependent adult and
information contained therein may be disclosed only to the following:
(1) Persons or agencies to whom disclosure of information or the
identity of the reporting party is permitted under Section 15633.5.
(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or dependent
persons.
(B) Except as provided in subparagraph (A), any personnel of the
multidisciplinary team or agency that receives information pursuant
to this chapter, shall be under the same obligations and subject to
the same confidentiality penalties as the person disclosing or
providing that information. The information obtained shall be
maintained in a manner that ensures the maximum protection of privacy
and confidentiality rights.
(c) This section shall not be construed to allow disclosure of any
reports or records relevant to the reports of abuse of an elder or
dependent adult if the disclosure would be prohibited by any other
provisions of state or federal law applicable to the reports or
records relevant to the reports of the abuse, nor shall it be
construed to prohibit the disclosure by a financial institution of
any reports or records relevant to the reports of abuse of an elder
or dependent adult if the disclosure would be required of a financial
institution by otherwise applicable state or federal law or court
order.
SEC. 6. Section 15634 of the Welfare
and Institutions Code is amended to read:
15634. (a) No A care custodian,
clergy member, health practitioner, mandated reporter of suspected
financial abuse of an elder or dependent adult, or employee of an
adult protective services agency or a local law enforcement agency
who reports a known or suspected instance of abuse of an elder or
dependent adult shall not be civilly or criminally liable
for any report required or authorized by this article.
chapter. Any other person reporting a known or
suspected instance of abuse of an elder or dependent adult shall not
incur civil or criminal liability as a result of any report
authorized by this article, chapter,
unless it can be proven that a false report was made and the person
knew that the report was false. No A
person required to make a report pursuant to this article,
chapter, or any person taking photographs at his
or her discretion, shall not incur any civil or criminal
liability for taking photographs of a suspected victim of abuse of an
elder or dependent adult or causing photographs to be taken of
such a suspected victim or for disseminating the
photographs with the reports required by this article.
chapter. However, this section shall not be
construed to grant immunity from this liability with respect to any
other use of the photographs.
(b) No A care custodian, clergy
member, health practitioner, mandated reporter of suspected financial
abuse of an elder or dependent adult, or employee of an adult
protective services agency or a local law enforcement agency who,
pursuant to a request from an adult protective services agency or a
local law enforcement agency investigating a report of known or
suspected abuse of an elder or dependent adult, provides the
requesting agency with access to the victim of a known or suspected
instance of abuse of an elder or dependent adult, shall not
incur civil or criminal liability as a result of providing that
access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report abuse of an
elder or dependent adult, immunity does not eliminate the possibility
that actions may be brought against those persons based upon
required reports of abuse. In order to further limit the financial
hardship that those persons may incur as a result of fulfilling their
legal responsibilities, it is necessary that they not be unfairly
burdened by legal fees incurred in defending those actions.
Therefore, a care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an
elder or dependent adult, or an employee of an adult protective
services agency or a local law enforcement agency may present to the
California Victim Compensation and Government Claims Board a claim
for reasonable attorneys' a ttorney'
s fees incurred in any action against that person on the basis
of making a report required or authorized by this article
chapter if the court has dismissed the action
upon a demurrer or motion for summary judgment made by that person,
or if he or she prevails in the action. The California Victim
Compensation and Government Claims Board shall allow that claim if
the requirements of this subdivision are met, and the claim shall be
paid from an appropriation to be made for that purpose.
Attorneys' Attorney's fees awarded pursuant to
this section shall not exceed an hourly rate greater than the rate
charged by the Attorney General at the time the award is made and
shall not exceed an aggregate amount of fifty thousand dollars
($50,000). This subdivision shall not apply if a public entity has
provided for the defense of the action pursuant to Section 995 of the
Government Code.
SEC. 7. Section 15637 of the Welfare
and Institutions Code is amended to read:
15637. In any court proceeding or administrative hearing, neither
the physician-patient privilege nor the psychotherapist-patient
privilege applies to the specific information required to be reported
pursuant to this chapter. Nothing in this chapter shall be
interpreted as requiring an attorney to violate his or her oath and
duties pursuant to Section 6067 or require the
disclosure of information protected by the attorney-client privilege
or the duty under subdivision (e) of Section 6068 of the
Business and Professions Code, and Article 3 (commencing
with Section 950) of Chapter 4 of Division 8 of the Evidence
Code.
SEC. 8. Section 15640 of the Welfare
and Institutions Code is amended to read:
15640. (a) (1) An adult protective services agency shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case any
known or suspected instance of criminal activity, and to any public
agency given responsibility for investigation in that jurisdiction of
cases of elder and dependent adult abuse, every known or suspected
instance of abuse of an elder or dependent adult pursuant
to Section 15630 or 15630.1 of an elder or dependent adult
, 15630.1, or 15630.2 . A county adult
protective services agency shall also send a written report thereof
within two working days of receiving the information concerning the
incident to each agency to which it is required to make a telephone
report under this subdivision. Prior to making any cross-report of
allegations of financial abuse to law enforcement agencies, an adult
protective services agency shall first determine whether there is
reasonable suspicion of any criminal activity.
(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the person
making the report that he or she is required to make the report to
the long-term care ombudsman program or to a local law enforcement
agency. The adult protective services agency shall not accept the
report by telephone but shall forward any written report received to
the long-term care ombudsman.
(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of known
or suspected elder or dependent adult abuse determines, pursuant to
its investigation, that the abuse is being committed by a health
practitioner licensed under Division 2 (commencing with Section 500)
of the Business and Professions Code, or any related initiative act,
or by a person purporting to be a licensee, the adult protective
services agency or local law enforcement agency or ombudsman program
shall immediately, or as soon as practically possible, report this
information to the appropriate licensing agency. The licensing agency
shall investigate the report in light of the potential for physical
harm. The transmittal of information to the appropriate licensing
agency shall not relieve the adult protective services agency or
local law enforcement agency or ombudsman program of the
responsibility to continue its own investigation as required under
applicable provisions of law. The information reported pursuant to
this paragraph shall remain confidential and shall not be disclosed.
(c) A local law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the long-term care
ombudsman program when the abuse is alleged to have occurred in a
long-term care facility or to the county adult protective services
agency when it is alleged to have occurred anywhere else, and to the
agency given responsibility for the investigation of cases of elder
and dependent adult abuse every known or suspected instance of abuse
of an elder or dependent adult. A local law enforcement agency shall
also send a written report thereof within two working days of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.
(d) A long-term care ombudsman coordinator may report the instance
of abuse to the county adult protective services agency or to the
local law enforcement agency for assistance in the investigation of
the abuse if the victim gives his or her consent. A long-term care
ombudsman program and the Licensing and Certification Division of the
State Department of Public Health shall immediately report by
telephone and in writing within two working days to the bureau any
instance of neglect occurring in a health care facility,
facility that has seriously harmed any patient
or reasonably appears to present a serious threat to the health or
physical well-being of a patient in that facility. If a victim or
potential victim of the neglect withholds consent to being identified
in that report, the report shall contain circumstantial information
about the neglect , but shall not identify that victim or
potential victim and the . The bureau
and the reporting agency shall maintain the confidentiality of the
report until the report becomes a matter of public record.
(e) When a county adult protective services agency, a long-term
care ombudsman program, or a local law enforcement agency receives a
report of abuse, neglect, or abandonment of an elder or dependent
adult alleged to have occurred in a long-term care facility, that
county adult protective services agency, long-term care ombudsman
coordinator, or local law enforcement agency shall report the
incident to the licensing agency by telephone as soon as possible.
(f) County adult protective services agencies, long-term care
ombudsman programs, and local law enforcement agencies shall report
the results of their investigations of referrals or reports of abuse
to the respective referring or reporting agencies.
SEC. 9. Section 15655.5 of the Welfare
and Institutions Code is amended to read:
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Section 15630.1,
Sections 15630.1 and 15630.2, with instructional
materials regarding abuse and neglect of an elder or dependent adult
and their obligation to report under this chapter. At a minimum, the
instructional materials shall include all of the
following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
SEC. 10. 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.