BILL ANALYSIS                                                                                                                                                                                                    






                                        
                                  SENATE HUMAN
                               SERVICES COMMITTEE
                          Senator Leland Y. Yee, Chair


          BILL NO:       AB 602                                       
          A
          AUTHOR:        Yamada                                       
          B
          VERSION:       May 24, 2013
          HEARING DATE:  June 25, 2013                                
          6
          FISCAL:        Yes                                          
          0
                                                                      
          2
          CONSULTANT:    Mareva Brown                                  

                                        

                                     SUBJECT
                                         
            Mentally and developmentally disabled persons: reporting  
                         abuse: peace officer training

                                     SUMMARY  

          This bill requires the Commission on Peace Officer  
          Standards and Training (POST) to establish a course for law  
          enforcement officers about how to interact with individuals  
          living within state mental hospitals or developmental  
          centers. Additionally, the bill requires local law  
          enforcement to coordinate with state investigators at these  
          facilities on investigations of alleged abuse. It requires  
          that mandated reporters notify both local law enforcement  
          and state facility investigators of suspected patient abuse  
          or neglect in specified cases, and requires state  
          investigators to report suspected abuse to local law  
          enforcement agencies within two hours.

                                     ABSTRACT  

           Existing law:
           

                                                         Continued---




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             1)   Requires that every peace officer in California  
               complete an introductory course of training developed  
               by POST, and pass an associated exam. (PEN 832)

             2)   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, as specified.  (PEN 13515 (a))

             3)   Requires POST to establish and update a continuing  
               education classroom training course related to law  
               enforcement interaction with mentally disabled  
               persons. Further, requires that the training course  
               shall be developed by POST in consultation with  
               appropriate community, local, and state organizations  
               and agencies that have expertise in the area of mental  
               illness and developmental disabilities, and with  
               appropriate consumer and family advocate groups. In  
               developing the course, the commission shall also  
               examine existing courses certified by the commission  
               that relate to mentally disabled persons. The  
               commission shall make the course available to law  
               enforcement agencies in California. (PEN 13515.25(a))

             4)   Requires POST to create and make available on DVD a  
               course on how to recognize and interact with persons  
               with autism spectrum disorders (ASD), in consultation  
               with the Department of Developmental Services (DDS).  
               This course shall be designed for, and made available  
               to, peace officers who are first responders to  
               emergency situations. (PEN 13515.35)

             5)   Establishes in state law that a mandated reporter  
               is 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. (WIC 15630 (a))

             6)   Defines a "dependent adult" as any person aged 18  





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               to 64 years living in California with physical or  
               mental limitations that restrict his or her ability to  
               carry out normal activities or to protect his or her  
               rights including persons who have physical or  
               developmental disabilities, or whose physical or  
               mental abilities have diminished because of age.  
               Additionally, defines a dependent adult as any person  
               aged 18 to 64 who is admitted to a 24-hour health  
               facility, as defined.  (WIC 15610.23)

             7)   Requires 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, to report by telephone or  
               through a confidential Internet reporting tool,  
               immediately or as soon as possible.  (WIC 15630  
               (b)(1))

             8)   Requires that if suspected or alleged abuse occurs  
               in a state mental health hospital or a state  
               developmental center, the mandated reporter may report  
               to the designated investigator of the State Department  
               of State Hospitals (DSH) or to the Office of  
               Protective Services (OPS) at DDS, or to a local law  
               enforcement agency. (WIC 15630 (b)(1)(E))

             9)   Requires a developmental center to immediately  
               report all resident deaths and serious injuries of  
               unknown origin to the appropriate local law  
               enforcement agency. This reporting requirement does  
               not substitute for the reporting requirement of a  
               mandated reporter. (WIC  4427.5.)

           This bill:

              1)   Requires POST to establish and keep updated a  
               continuing education classroom training course  
               relating to law enforcement interaction with mentally  
               disabled and developmentally disabled persons living  
               within a state mental hospital or state developmental  
               center. 






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             2)   Requires that the training course be developed by  
               POST in consultation with appropriate community,  
               local, and state organizations and agencies that have  
               expertise in the area of mental illness and  
               developmental disabilities, and with appropriate  
               consumer and family advocate groups. In developing the  
               course, the commission shall also examine existing  
               courses certified by the commission that relate to  
               mentally disabled and developmentally disabled  
               persons.
                
             3)   Requires POST to make the course available to all  
               law enforcement agencies in California, and  
               establishes that the course be a required part of an  
               officer training program for personnel serving in law  
               enforcement agencies with jurisdiction over state  
               mental hospitals and state developmental centers.

             4)   Provides that the POST course may consist of  
               video-based or classroom instruction. 

             5)   Requires that the course shall include, at a  
               minimum, core instruction in all of the following:

                  a.        The prevalence, cause, and nature of  
                    mental illnesses and developmental disabilities.
                  b.        The unique characteristics, barriers, and  
                    challenges of individuals who may be a victim of  
                    abuse or exploitation living within a state  
                    mental hospital or state developmental center.
                  c.        How to accommodate, interview, and  
                    converse with individuals who may require  
                    assistive devices in order to express themselves.
                  d.        Capacity and consent of individuals with  
                    cognitive and intellectual barriers.
                  e.        Conflict resolution and de-escalation  
                    techniques for potentially dangerous situations  
                    involving mentally disabled or developmentally  
                    disabled persons.
                  f.        Appropriate language usage when  
                    interacting with mentally disabled or  
                    developmentally disabled persons.
                  g.        Community and state resources and  
                    advocacy support and services available to serve  
                    mentally disabled or developmentally disabled  





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                    persons, and how these resources can be best  
                    utilized by law enforcement to benefit the  
                    mentally disabled or developmentally disabled  
                    community.
                  h.        The fact that a crime committed in whole  
                    or in part because of an actual or perceived  
                    disability of the victim is a hate crime  
                    punishable under Title 11.6 (commencing with  
                    Section 422.55) of Part 1.
                  i.        Information on the state mental hospital  
                    system and the state developmental center system.
                  j.        Techniques in conducting forensic  
                    investigations within institutional settings  
                    where jurisdiction may be shared.
                  aa.       Examples of abuse and exploitation  
                    perpetrated by caregivers, staff, contractors, or  
                    administrators of state mental hospitals and  
                    state developmental centers, and how to conduct  
                    investigations in instances where a perpetrator  
                    may also be a caregiver or provider of  
                    therapeutic or other services.

             6)   Adds to existing requirements to report suspected  
               or alleged abuse, the requirement to report suspected  
               or alleged neglect in a state mental hospital or  
               developmental center.  

              7)   Specifies that a report be made "immediately but  
               not later than within two hours of the mandated  
               reporter observing, obtaining knowledge of or  
               suspecting abuse" to designated investigators of DSH  
               or DDS and also to the local law enforcement agency if  
               any of the following incidents is alleged:  

                   a.        A death.  
                   b.        A sexual assault as defined in Section  
                    15610.63, which defines nine specified crimes by  
                    penal code including rape, sexual battery and  
                    other crimes.  
                   c.        An assault with a deadly weapon, as  
                    described in Section 245 of the Penal Code, by a  
                    nonresident of the state mental hospital or state  
                    developmental center.  
                   d.        An assault with force likely to produce  
                    great bodily injury, as described in Section 245  





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                    of the Penal Code.  
                   e.        An injury to the genitals when the cause  
                    of the injury is undetermined.  
                   f.        A broken bone, when the cause of the  
                    break is undetermined.  
           
             8)   Requires that all other reports of suspected or  
               alleged abuse or neglect that occurred in a state  
               mental hospital or a state developmental center shall  
               be made to designated investigators of DSH or DDS, or  
               to the local law enforcement agency.

             9)   Requires that when a local law enforcement agency  
               receives an initial report of suspected or alleged  
               abuse or neglect in a state mental hospital or a state  
               developmental center, as specified, the local law  
               enforcement agency shall coordinate efforts with the  
               designated investigators at DSH and provide the most  
               immediate and appropriate response warranted to  
               investigate the mandated report.

             10)  Permits the designated investigators of DSH and  
               local law enforcement agencies to collaborate to  
               develop protocols to implement the coordinated  
               investigative efforts.

             11)  Requires mandated reporters within the DSH or DDS  
               to immediately "but no later than within two hours of  
               the mandated reporter observing, obtaining knowledge  
               of or suspecting abuse" report that abuse to OPS or  
               the local law enforcement agency.

                                  FISCAL IMPACT  

          An Assembly Appropriations committee analysis estimated  
          implementation of this bill would cost approximately  
          $100,000 in special fund costs for POST to create and offer  
          a course for law enforcement regarding interaction with  
          people living in a state hospital or developmental center.  
          Additionally, the committee projected minor costs (likely  
          less than $25,000 GF) to state hospitals and developmental  
          centers to provide additional training to peace officers,  
          as well as minor state-reimbursable local costs (likely  
          less than $50,000), to provide additional mandated training  
          to peace officers, in most cases within existing training  





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          courses. The analysis also noted that there may be minor,  
          if any, reimbursable local agency costs for specified  
          coordination with state hospitals and developmental  
          centers, which in most cases is current practice.  


                            BACKGROUND AND DISCUSSION  
           
          Purpose of the bill
           
          The author writes that AB 602 was inspired by SB 1522  
          (Leno) Chapter 666, Statutes of 2012, which specified a  
          list of crimes that must be reported by DDS investigators  
          to outside law enforcement agencies with jurisdiction over  
          the facilities. 

          This bill extends the requirements of SB 1522 by adding  
          neglect to the list of suspected crimes that must be  
          reported to outside law enforcement, by requiring all  
          mandated reporters at the facilities to report directly to  
          outside law enforcement as well as to investigators at DSH  
          or DDS, and by shortening the time frame by which mandated  
          reporters must report from "immediately" to "immediately,  
          but no later than within two hours of the mandated reporter  
          observing, obtaining knowledge of, or suspecting abuse." 

          The author mirrors language in AB 40 (Yamada) Chapter 659,  
          Statues of 2012, which required that mandated reporters of  
          elder or dependent adult abuse to report suspected physical  
          abuse in a long term care facility to both local law  
          enforcement and the Long-Term Care Ombudsman. Both that  
          bill and this bill provide for a two-hour window to report  
          abuse in long-term health care facilities directly to law  
          enforcement. 

          The author writes that she is "proposing extending the same  
          protocol to other facilities which may support the needs  
          of, and provide services to, long-term care recipients."

           Developmental Centers and State Hospitals

           DDS operates California's four state-owned and operated  
          developmental centers, which care for approximately 1,535  
          people with developmental disabilities. These facilities  
          lie on large campuses with various residential units that  





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          were built, in many cases, more than a century ago to house  
          individuals who were unable to remain at home. Each  
          developmental center has a mix of units that are licensed  
          as skilled nursing facilities, general acute care hospitals  
          or intermediate care facilities. Housing within the units  
          is based on specific resident needs. In addition, the state  
          operates a smaller, state-owned community facility, Canyon  
          Springs, in Riverside County. 


          The developmental centers are part of a system of care  
          overseen by DDS. DDS is responsible for coordinating care  
          and providing services for individuals in developmental  
          centers, as well as for approximately 260,000 people with  
          developmental disabilities who receive services and  
          supports to live in their communities. A developmental  
          disability is defined as a severe and chronic disability  
          that is attributable to a mental or physical impairment  
          that begins before age 18. These disabilities include  
          cerebral palsy, autism, epilepsy and other similar  
          conditions.



          DSH operates five state hospitals and three psychiatric  
          programs statewide, providing in-patient mental health  
          treatment services to 6,560 patients in FY 2013-14. Two  
          facilities are located in southern California (Metropolitan  
          State Hospital in Los Angeles County and Patton State  
          Hospital in San Bernardino County), one facility near the  
          central coast (Atascadero State Hospital) and one in  
          northern California (Napa State Hospital).  A fifth  
          facility, Coalinga State Hospital in the central valley,  
          opened its doors in September 2005. Additionally, in July  
          2013, the department will open a new 1,722-bed facility in  
          Stockton as a joint project with the California Department  
          of Corrections and Rehabilitation, and the California  
          Correctional Health Care Services. The new facility is  
          designed to provide medical and mental health care for  
          patient-inmates. Of that total, 514 beds in 17 treatment  
          units will be designated for mentally ill patients  
          including 432 in intermediate care and 82 in acute care  
          units. 







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          In 2012, the Governor divided the state Department of  
          Mental Health, moving community mental health services to  
          the Department of Health Care Services and creating a new  
          and separate Department of State Hospitals to oversee the  
          state-run mental health hospitals, which primarily house  
          forensic patients.

           Abuse and neglect in DSH and DDS facilities

           A number of news articles and federal compliance actions in  
          recent years underscore problems of abuse at the state  
          hospitals and developmental centers. 

          In 2011 and 2012, the Los Angeles Times, National Public  
          Radio and other media outlets reported on violence in the  
          state mental hospitals prompted by a variety of incidents  
          include the strangulation of a nurse at Napa State Hospital  
          by a patient. 

          A federal Civil Rights of Institutionalized Persons Act  
          (CRIPA) investigation and correction plan already had been  
          underway at the state hospitals since 2006 because of  
          reports of patient abuse and neglect. The Los Angeles  
          Times, in a series of reports, wrote that, while federal  
          oversight of the four state hospitals cost hundreds of  
          millions of dollars and was intended to make patients safer  
          and improve their care, instead violence shot up overall,  
          patients on average were confined longer and treatment  
          suffered. The articles, in part, resulted in the reversal  
          of those policies and in November 2012, a federal judge  
          released most of the state hospitals from CRIPA oversight,  
          however she noted that several patient deaths, including  
          that of a 6-foot-4, 300 pound patient at Napa State  
          Hospital who died in 2012 after being handcuffed and placed  
          face down on the ground, were still troubling.

          In 2012, the Center for Investigative Reporting published a  
          series of stories detailing abuses at Sonoma Developmental  
          Center and ineffective investigative practices by the  
          developmental centers' police force, OPS. According to the  
          articles, which cite Department of Public Health data,  
          there were 327 patient abuse cases since 2006. The series  
          detailed a number of specific incidents at various  
          developmental centers including the 2005 death of a  
          quadriplegic cerebral palsy patient at the Sonoma  





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          Developmental Center, after he swallowed 4-inch swabs that  
          shredded his esophagus. A doctor and a pathologist  
          concluded it was highly unlikely that the patient could  
          have placed the swabs in his own mouth. 
           
           The adequacy of OPS investigations at developmental centers  
          was the subject of a Senate Human Services Committee  
          hearing in March 2012. Included in that hearing was a  
          discussion of the memorandums of understanding that exist  
          between developmental centers and their local law  
          enforcement agencies, which were intended to strengthen the  
          link between outside investigators and OPS in cases of  
          serious crimes. 

          The passage of two bills followed the newspaper articles  
          and hearing: SB 1051 (Liu) Chapter 660, Statutes of 2012  
          mandated job requirements for the chief of police at OPS,   
          required that the job be appointed by the Secretary of the  
          Health and Human Services Agency, and required DDS and DSH  
          to report specified crimes to the state's designated  
          protection and advocacy agency. SB 1522 (Leno) Chapter 666,  
          Statutes of 2012 expanded the list of crimes that must be  
          reported to outside law enforcement agencies.

           Law enforcement response to crimes against disabled people

           In the wake of troubling incidents at DSH and DDS, some  
          have proposed removing law enforcement officers entirely  
          from these institutions and instead relying solely on local  
          law enforcement to perform investigations. However,  
          advocates have been reluctant to consider that in part  
          because of long-standing concerns about the completeness of  
          investigations by local law enforcement officers in  
          agencies statewide.


          In 2003, Disability Rights California and other  
          collaborators released a report, "Abuse and Neglect of  
          Adults with Developmental Disabilities: A Public Health  
          Priority for the State of California," raising concerns  
          about the lack of training for officers in local police and  
          sheriff's departments and about poor arrest and prosecution  
          rates in cases where individuals with developmental  
          disabilities are victims of crimes.






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          The report noted that high rates of victimization were  
          present throughout the developmental disabilities  
          population, regardless whether they lived in institutions  
          or community settings. The report found that individuals  
          with developmental disabilities were four to 10 times more  
          likely to be victimized than others, were at higher risk of  
          re-victimization, and were most likely to be abused by  
          someone they know and were more seriously abused and for  
          longer periods of time than other individuals. It cited  
          some studies that estimate close to 80 percent of women  
          with developmental disabilities have been sexually  
          assaulted at some point in their lives.<1>


          It also found that reports of abuse against people with  
                                                           developmental disabilities were significantly  
          under-reported and that, when reported, they were far less  
          likely to be prosecuted:


               Research findings document excessively low rates  
               of prosecution and conviction of crimes against  
               people with disabilities. One study found that  
               65% of sexual assault cases reported to police  
               were not prosecuted when the victim had a  
               disability (Sobsey & Varnhaggen, 1991). A more  
               recent survey in Boston found that only 5% of  
               serious crimes against people with disabilities  
               were prosecuted compared to 70% for similar  
               crimes against people without disabilities  
               (Boston Globe, 2001). A study of sexual assaults  
               of people with intellectual disabilities in  
               Britain found that police investigated only 21  
               percent of cases reported and only 9 percent were  
               referred by police for prosecution. Just two  
               cases (less than 1 percent) proceeded to court  
               with only one resulting in conviction. (Brown &  
               Stein, 1997).

          -------------------------
          <1>  
          http://www.scdd.ca.gov/res/docs/pdf/Publications/Abuse_and_N 
          eglect_WhitePaper.pdf






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          One of the report's eight recommendations was to increase  
          training to responders who work with individuals with  
          developmental disabilities. 
           
          Prior legislation
           
          SB 1051 (Liu) Chapter 660, Statutes of 2012, required DSH  
          and DSS to report suspected abuse to the designated  
          protection and advocacy agency. 

          SB 1522 (Leno) Chapter 666, Statutes of 2012, required a  
          state developmental center 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.
          
          AB 40 (Yamada) Chapter 659, Statutes of 2012, required  
          mandated reporters of elder or dependent adult abuse to  
          report suspected or known instances of physical abuse,  
          occurring in a long-term care facility, to both the  
          Long-Term Care Ombudsman and local law enforcement. 

                                     COMMENTS

           This bill creates a new reporting requirement for mandated  
          reporters in developmental centers and state hospitals  
          intended to mirror changes made last year in AB 40, by  
          requiring that reporting be done, in some cases,  
          "immediately and no later than within two hours." AB 40,  
          which reflected new federal requirements in the Elder  
          Justice Act, dictated the actions of mandated reporters in  
          long-term care facilities, but specifically excluded  
          reporters in state hospitals and developmental centers. 

          AB 40 further divided mandated reports into two courses of  
          action, if the incident involved physical abuse: Those  
          resulting serious bodily injury, as defined, must be  
          reported to law enforcement by phone "immediately and no  
          later than within two hours," and a written report made to  
          licensing entities and the ombudsman within two hours. For  
          incidents resulting in lesser than serious bodily injury,  
          mandated reporters in long-term care facilities must make a  
          telephone report to the local law enforcement agency within  
          24 hours and a written report to licensing and the  
          ombudsman within the same 24-hour window. In cases where  





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          the victim has dementia, and the injury is not serious, the  
          mandated reporter has the option to report to either law  
          enforcement or the ombudsman. (WIC 15630 (b)(1)(A)  
          Additional requirements apply if the abuse is non-physical.

          Current law requires mandated reporters in Developmental  
          Centers and state hospitals to report either to designated  
          investigators within those state institutions or to outside  
          law enforcement. Mandated reporters within DDS are  
          additionally required to "immediately" report suspected  
          abuse to OPS or to local law enforcement. (WIC  
          15630(b)(1)(E))

          Further, mandated reporters of elder or dependent adult  
          abuse who are not in developmental centers, state hospitals  
          or long-term care facilities, as defined, are required to  
          report suspected abuse or neglect to law enforcement  
          investigators "immediately or as soon as practicably  
          possible." (WIC 15630 (b)(1))

          Staff notes that while this bill attempts to strengthen  
          reporting requirements for mandated reporters within the  
          state institutions, it creates yet another layer of  
          reporting requirements that differs from other similar  
          reporters and illustrates the need for broader reporting  
          reform.

                                  PRIOR VOTES  


          Senate Public Safety committee  6 - 0
          Assembly Floor           76 - 0
          Assembly Appropriations       17 - 0
          Assembly Public Safety     7 - 0


                                    POSITIONS  

          Support:                     Alameda County Developmental  
                              Disabilities Planning and     Advisory  
                              Council
                         Area Board 4, State Council on Developmental  
                    Disabilities 
                         California Association of Psychiatric  
          Technicians





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                         California Coalition Against Sexual Assault  
          (CALCASA)                                               
          California Council of Community Mental Health Agencies
                         Contra Costa Health Services
                         East Bay Developmental Disabilities  
                    Legislative Coalition
                         Mental Health America of California
                         National Association of Social Workers -  
                    California Chapter
                         State Council on Developmental Disabilities
                         The Arc and United Cerebral Palsy in  
                    California

          Oppose:   None received






                                   -- END --