BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 602 (Yamada)                                             
          As Amended May 24, 2013 
          Hearing date:  June 18, 2013
          Penal and Welfare and Institutions Codes
          JM:mc

                RESIDENTS OF STATE HOSPITALS AND DEVELOPMENTAL CENTERS:

                    PEACE OFFICER TRAINING AND MANDATED REPORTERS  


                                       HISTORY

          Source:  Author

          Prior Legislation: AB 40 (Yamada) - Ch. 65, Stats. 2012
                       SB 1051 (Liu) - Ch. 660, Stats. 2012
                       SB 1522 (Leno) - Ch. 666, Stats. 2012

          Support:  Association of Regional Center Agencies; California  
                    Public Defenders Association; National Association of  
                    Social Workers

          Opposition:None known

          Assembly Floor Vote:  Ayes 76 - Noes 0


                                      KEY ISSUES
           
          SHOULD THE COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING  
          DEVELOP TRAINING ABOUT INVESTIGATING ABUSE OF RESIDENTS OF STATE  
          MENTAL HOSPITALS AND DEVELOPMENTAL CENTERS?




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                                                            AB 602 (Yamada)
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          IN INVESTIGATING CLAIMS OF ABUSE OF STATE HOSPITAL AND DEVELOPMENTAL  
          CENTER RESIDENTS, SHOULD LOCAL LAW ENFORCEMENT COORDINATE EFFORTS  
          WITH STATE INVESTIGATORS?

          SHOULD MANDATED REPORTERS BE REQUIRED TO REPORT SPECIFIED FORMS OF  
          SERIOUS ABUSE OF STATE HOSPITAL AND DEVELOPMENTAL CENTER RESIDENTS  
          TO BOTH LOCAL LAW ENFORCEMENT AND STATE INVESTIGATORS WITHIN TWO  
          HOURS?



                                       PURPOSE

          The purposes of this bill are to 1) require the Commission on  
          Peace Officer Standards and Training to develop a course on  
          investigations of abuse of residents of state mental hospitals  
          and developmental centers; 2) direct local law enforcement to  
          coordinate efforts with state investigators in investigations of  
          abuse of residents of state hospitals and developmental centers;  
          and 3) require mandated reporters to report specified forms of  
          serious abuse of persons in state mental hospitals and  
          developmental centers to  both  local law enforcement  and  state  
          investigators within two hours.  

          Mandated Reporting of Abuse of the Elderly or Dependent Adults  
          and Responses by Law Enforcement
           
           Current law  defines a "mandated reporter" as any person who has  
          assumed the care or custody of an elder or dependent adult,  
          including administrators, supervisors, or licensed staff of a  
          public or private facility that provides care to elder or  
          dependent adults, elder or dependent adult care custodian,  
          health practitioner, clergy member, employee of county adult  
          protective services, or a local law enforcement agency.  (Welf.  
          & Inst.  Code  15630, subd. (a)(1).)




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                                                            AB 602 (Yamada)
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           Current law  requires any specified mandated reporter who, within  
          the scope of his or her employment, observes or has knowledge of  
          physical abuse, financial abuse or neglect, or is told by an  
          elder or dependent adult that he or she has experienced abuse,  
          or reasonably suspects abuse, to immediately report the known or  
          suspected abuse, as specified.  (Welf. & Inst. Code 
           15630, subd. (b)(1).)

           Current law provides that if the abuse has occurred in long-term  
          care facility, except a state mental hospital or developmental  
          center, the report shall be made to the local ombudsperson or  
          the local law enforcement agency.  (Welf. & Inst. Code  15630,  
          subd. (b)(1)(A).) 

           Current law  provides that failure to make a mandated elder abuse  
          report is a misdemeanor, with a maximum jail term of six months,  
          a fine of up to $1,000, or both.  Where the abuse resulted in 
          death or great bodily injury, the penalty is a maximum jail term  
          of one year, a fine of up to $5,000, or both.  (Welf. & Inst.  
          Code  15630, subd. (h).)  

           Current law  gives the State Department of Developmental Services  
          (DDS) jurisdiction over developmental centers<1> that provide  
          residential care to persons with developmental disabilities.   
          (Welf. & Inst. Code  4440.)

           Current law  provides that a developmental center shall  
          immediately report all deaths and serious injuries of unknown  
          origin to the appropriate local law enforcement agency, which  
          may, at its discretion, conduct an independent investigation.   
          These reporting requirements are in addition to the reporting  
          requirements of mandated reporters.  (Welf. & Inst. Code   
          4427.5, subd. (a).)

           Current law  mandates DDS to do the following:
          ---------------------------
          <1> Developmental centers "are licensed and certified as Skilled  
          Nursing Facility (SNF), Intermediate Care Facility/Mentally  
          Retarded (ICF/MR), and General Acute Care hospitals (GAC)."   
          http://www.dds.ca.gov/DevCtrs/Home.cfm.



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                 Annually provide written information to every  
               developmental center employee regarding all of the  
               following:
                  o         statutory and departmental requirements for  
                    mandatory reporting of abuse;
                  o         rights and protections afforded to persons  
                    reporting abuse;
                  o         penalties for failure to report suspected or  
                    known abuse; and
                  o         telephone numbers for reporting suspected or  
                    known abuse or neglect to designated investigators of  
                    the department and to local law enforcement agencies.   
                    (Welf. & Inst. Code  4427.5, subd. (b).)

           Current law  states that any person who has assumed full or  
          intermittent responsibility for the care or custody of an elder  
          or dependent adult, including administrators, supervisors, and  
          any licensed staff of a 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.  (Welf. & Inst. Code  
           15630, subd. (a).)

           Current law  states that any mandated reporter who, in his or her  
          professional capacity or scope of employment has observed or  
          knows of an incident of physical abuse, abandonment, abduction,  
          isolation, financial abuse, or neglect, or is told by an elder  
          or dependent adult that he or she has experienced such behavior,  
          or who reasonably suspects abuse, shall report by telephone or  
          through a confidential Internet reporting tool, immediately or  
          as soon as possible.  (Welf. & Inst. Code  15630, subd.  
          (b)(1).)

           Current law  provides where any mandated reporter knows or  
          reasonably suspects abuse that is not subject to mandatory  
          report, may report abuse that endangers the elder or dependent  
          adult's 
          endangered in any other way, may report the known or suspected  




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          instance of abuse.  (Welf. & Inst. Code  15630, subd. (c)(1).)

           Current law  provides that 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.  (Welf. & Inst. Code  15630, subd. (c)(2).)

           Current law  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 (DSH) or the State  
          Department of Developmental Services (DDS), or to a local law  
          enforcement agency or ombudsperson.  Except in an emergency, the  
          local ombudsperson and 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.   
          (Welf. & Inst. Code  15630, subd. (c)(3).)

           Current law  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.  (Welf. & Inst. Code   
          15630, subd. (d).)

           Current law  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 up to six months in the  
          county jail, a fine of not more than $1,000, or both.  Where the  
          abuse results in death or great bodily injury, the misdemeanor  
          penalty is a maximum jail term is one year, a fine of not more  
          than $5,000, or both.  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.  (Welf. & Inst. Code  15630,  




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          subd. (h).)

           Current law  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.  (Welf. &  
          Inst. Code  15610.23 and 15630, subd. (i).)

           This bill  provides that mandated reporters of elder or dependent  
          adult abuse report shall report specified forms of serious abuse  
          or neglect in state hospitals or developmental centers to both  
          local law enforcement and designated DSH or DDS investigators.   
          Reports must be made within 
          two hours of the mandated reporter observing, obtaining  
          knowledge of, or suspecting abuse.  The specific incidents  
          requiring reporting are:  

                 Death. 
                 Sexual assault. 
                 Assault with a deadly weapon.  
                 Assault with force likely to produce great bodily  
               injury.  
                 An injury to the genitals when the cause of the injury  
               is undetermined.  
                 A broken bone when the cause of the injury is  
               undetermined.  
                 Other reports of suspected or alleged abuse or neglect.   


           This bill  requires a local law enforcement agency to coordinate  
          investigative efforts as to such abuse reports with designated  
          DSH or DDS investigators.

          Training of Peace Officers Through - the Commission on Peace  
          Officer Standards and Training (POST)




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           Current law  requires all peace officers to complete an  
          introductory course of training prescribed by POST, demonstrated  
          by passage of an appropriate examination developed by POST.   
          (Pen. Code  832, subd. (a).)

           Current law  requires every police officer or deputy sheriff who  
          is assigned field or investigative duties to complete an elder  
          and dependent adult abuse training course certified by POST.   
          (Pen. Code  13515, subd. (a).)

           Current law  requires POST to establish and update a continuing  
          education classroom training course related to law enforcement  
          interaction with mentally disabled persons.  (Penal Code 
           13515.25(a).)

           Current law  requires POST to create and make available on DVD a  
          course on how to recognize and interact with persons with  
          autistic spectrum disorders.  POST may distribute the material  
          electronically.  (Pen. Code  13515.35, subd. (a).)

           This bill  permits POST to establish, by July 1, 2015, and keep  
          updated, a training course relating to law enforcement  
          interaction with mentally disabled or developmentally disabled  
          persons living within a state mental hospital or state  
          developmental center, as specified. 

           This bill  provides that the training course would be required  
          for law enforcement personnel in law enforcement agencies with  
          jurisdiction over state mental health hospitals and state  
          developmental centers, as part of the agency's officer training  
          program. 

           This bill  requires that POST submit a report to the Legislature,  
          by October 1, 2017, that contains specified information  
          regarding this training. 

                                      COMMENTS

          1.  Need for This Bill  




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          According to the author:

               Horrifying reports and documentation of systemic abuse  
               and exploitation of vulnerable developmental center  
               and state hospital residents have become sickening and  
               routine.  Deficiencies at the Sonoma Developmental  
               Center have led to a loss of substantial federal  
               funding, while the state hospital system struggles to  
               offer safety and security for residents.  Currently,  
               in each system, reports of abuse are directed  
               internally and investigated by co-workers of those  
               accused.  In order to assure impartial investigations  
               and oversight of the internal workings of  
               developmental center and state hospital systems, AB  
               602 mandates rapid reports of physical abuse be made  
               directly to external law enforcement.

               AB 602 also provides for updated and modernized  
               training curriculum for law enforcement officials  
               working in close proximity to state hospitals or  
               developmental centers.

          2.  POST Training Requirements Including Specialized Training  
            Mandated or Authorized by Legislation

           The Commission on Peace Officer Standards and Training (POST)  
          was created by the Legislature in 1959 to set minimum selection  
          and training standards for California law enforcement.  (Pen.  
          Code  13500, subd. (a), 13510, subd. (a).)  As of 1989, all  
          peace officers in California are required to successfully  
          complete an introductory course of training prescribed by POST.   
          (Pen. Code  832, subd. (a).)

          According to the POST Web site, the Regular Basic Course  
          Training includes 42 separate topics, ranging from juvenile law  








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          and procedure to search and seizure.<2>  These topics are taught  
          during a minimum of 664 hours of training.<3>  Peace officer  
          candidates are trained not only on policing skills such as crowd  
          control, evidence collection and patrol techniques, they are  
          also required to recall the basic definition of a crime and know  
          the elements of major crimes.  The Legislature has mandated or  
          authorized numerous POST training requirements.  Examples of  
          mandated special training include interactions with victims of  
          human trafficking, avoidance of racial profiling, handling hate  
          crimes and, as particularly relevant to this bill, interactions  
          with persons with mental illnesses, development disabilities, or  
          both.



          3.  Investigating Incidents that Occur in Developmental Centers























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          ---------------------------
          <2> POST, Regular Basic Course Training Specifications;  
          .)  
          <3> POST, Regular Basic Course, Course Formats, available at:  
          http://post.ca.gov/regular-basic-course.aspx.








          
           A recent report by California Watch on abuse of residents of  
          developmental centers was extremely critical.  California Watch  
          reported:

               [When a patient at one of the state's developmental  
               centers is seriously injured or dies,] employees must  
               notify the facility's police force, Office of  
               Protective Services (OPS).  ?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  




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               centers, before sending cases out to prosecutors."   
               (Alvarado and Springfield, Who is Accountable for  
               Suspected Abuse at Developmental Centers?  California  
               Watch (Feb. 23, 2012).)

          The report also noted that increasing incidents of unexplained  
          injuries and deaths have raised questions as to whether the  
          current process provides sufficient protections for residents of  
          developmental centers.  Inspection data from the Department of  
          Public Health showed that "developmental centers have been the  
          scene of 327 patient abuse cases since 2006 . . . .  Patients  
          have suffered an additional 762 injuries of 'unknown origin' -  
          often a signal of abuse that under state policy should be  
          investigated as a potential crime.  At the state's five centers,  
          the list of unexplained injuries includes patients who suffered  
          deep cuts on the head; a fractured pelvis; a broken jaw; busted  
          ribs, shins and wrists; bruises and tears to male genitalia; and  
          burns on the skin the size and shape of a cigarette butt."   
          (Gabrielson, Police Force's Sloppy Investigations Leave Abuse of  
          Disabled Unsolved, California Watch (Feb. 23, 2012).)  The OPS  
          "often learns about potential abuse hours or days after the fact  
          - if they find out at all.  Of the hundreds of 
          abuse cases reported at the centers since 2006, California Watch  
          could find just two cases where the department made an arrest."   
          (Id.)  
           
          4.  Prior Related Legislation   

          As noted above, there have been many published reports about  
          abuse in developmental centers and problems with investigations  
          of these incidents, which have included homicides, rapes and  
          other serious crimes.  There have also been numerous published  
          reports about homicides, assaults and other serious incidents in  
          state mental hospitals.  Many bills have been introduced in  
          recent years to address these concerns.  Some of these bills are  
          described briefly, below:

                 AB 40 (Yamada), statutes of 2012, Chapter 659, requires  
               mandated reporters of elder or dependent adult abuse to  
               report suspected or known instances of physical abuse,  












                                                            AB 602 (Yamada)
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               occurring in a long-term care facility, to both the  
               Long-Term Care Ombudsman (LTCO) and local law enforcement. 

                 SB 1051 (Liu), statutes of 2012, Chapter 660, requires  
               the Department of State Hospitals (DSH) and developmental  
               centers within the Department of Developmental Services  
               (DDS) to report suspected abuse to the designated  
               protection and advocacy agency. 

                 SB 1522 (Leno), statutes of 2012, Chapter 666, requires  
               a state developmental center (DC) to report to local law  
               enforcement all deaths, sexual assaults, assaults with a  
               deadly weapon or force likely to produce great bodily  
               injury, and other specified incidents.

                 SB 60 (Evans) 2011, held in Senate Appropriations, would  
               have required a risk assessment of any patient committed to  
               a Department of State Hospitals (DSH) through a Penal Code  
               provision.  Such patients include mentally disordered  
               offenders, defendants who are incompetent to stand trial,  
               among others.  The analysis of SB 60 noted that DSH had  
                                                                                   issues a report and plan in 2010 to increase security in  
               state hospitals.


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