BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 790 (Gomez)
As Amended June 4, 2013
Hearing date: June 11, 2013
Penal Code
AA:mc
MANDATORY CHILD ABUSE OR NEGLECT REPORTING:
MULTIPLE REPORTERS
HISTORY
Source: California Police Chiefs Association
Prior Legislation: SB 781 (Rains) - Ch. 1071, Stats. 1980
Support: American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO); County Welfare Directors
Association of California; California Teachers
Association; California Dental Association; Crime
Victims Alliance;
Child Abuse Prevention Center
Opposition:Connect Enrich Achieve
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE PROVISION IN THE MANDATED CHILD ABUSE AND REPORTING LAW
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THAT ALLOWS "TEAM" REPORTING BE NARROWED TO APPLY ONLY TO "HEALTH
CARE PROVIDERS," AS SPECIFIED?
PURPOSE
The purpose of this bill is to narrow a provision of law that
allows a "team" of mandated child abuse or neglect reporters to
select one member who files the mandated report to apply only to
health care providers, as specified, providing that the person
who makes the report provides the names of the other team
members who are mandated reporters, as specified.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code � 11164.)
Current law requires "mandated reporters" to make reports of
suspected child abuse or neglect, as specified. (Penal Code �
11165.9.)
Under current law the term "child abuse or neglect" for purposes
of CANRA "includes physical injury inflicted by other than
accidental means upon a child by another person, sexual abuse as
defined . . . , neglect as defined . . . , the willful harming
or injuring of a child or the endangering of the person or
health of a child, as defined . . . , and unlawful corporal
punishment or injury as defined . . . . 'Child abuse or
neglect' does not include a mutual affray between minors.
'Child abuse or neglect' does not include an injury caused by
reasonable and necessary force used by a peace officer acting
within the course and scope of his or her employment as a peace
officer." (Penal Code � 11165.6.)
Current law provides that, except as specified, "a mandated
reporter shall make a report . . . whenever the mandated
reporter, in his or her professional capacity or within the
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scope of his or her employment, has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects
has been the victim of child abuse or neglect." (Penal Code �
11166(a).)
Current law enumerates 43 categories of persons who are mandated
child abuse and neglect reporters. (Penal Code � 11165.7 (a).)
Except as specified, current law provides that "volunteers of
public or private organizations whose duties require direct
contact with and supervision of children are not mandated
reporters . . . ." (Penal Code � 11165.7(b).)
Current law provides that when "two or more persons, who are
required to report, jointly have knowledge of a known or
suspected instance of child abuse or neglect, and when there is
agreement among them, the telephone report may be made by a
member of the team selected by mutual agreement and a single
report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make
the report." (Penal Code � 11166(h).)
This bill would narrow this team reporting provision to apply
only to "health care providers." Specifically, this bill would
delete the existing team reporting provisions in subdivision (h)
of Penal Code section 11166, and instead provide that when two
or more health care providers, who are required to report,
jointly have knowledge of a known or suspected instance of child
abuse or neglect, and when there is agreement among them, the
telephone report may be made by a member of the team selected by
mutual agreement, and a single report may be made and signed by
the selected member of the reporting team.
This bill would provide that any member who has knowledge that
the member designated to report has failed to do so shall
thereafter make the report.
This bill would require the person who makes the report to
provide the names of all the other members of the reporting
team, but he or she would not be subject to criminal penalties
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or other sanctions for failing to include one or more names of
those persons if his or her failure to do so is accidental or
inadvertent.
This bill would define a "health care provider" to mean any
person licensed or certified pursuant to Division 2, line 28,
(commencing with Section 500) of the Business and Professions
Code, or licensed pursuant to the Osteopathic Initiative Act, or
the Chiropractic Initiative Act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
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of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that
is constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % prisoner population cap by December 31st
of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
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reasonable, appropriate remedy.
COMMENTS
1. What This Bill Would Do
As explained in detail above, current law allows mandated child
abuse or neglect reporters who together have knowledge of
suspected abuse or neglect to mutually agree to one mandated
reporter, who makes the mandated report for all of them. This
bill would narrow this "team" reporting flexibility to apply
only to "health care providers," defined in the bill by
cross-reference to include the health professionals licensed or
certified pursuant to the "Healing Arts" provisions of the
Business and Professions Code, or licensed pursuant to the
Osteopathic Initiative Act, or the Chiropractic Initiative Act.
This bill also would require that when such a team report is
made, the person making the report would be required to provide
the names of all the other members of the reporting team, but
would not be subject to criminal penalties or other sanctions
for failing to include one or more names of those persons if his
or her failure to do so is accidental or inadvertent.
2. Recent Amendments
As passed by the Assembly, this bill deleted the team reporting
provisions in the mandated reporting laws. As recently amended
by the author, the bill restores team reporting for health
professionals, and also requires that the team member designated
to make the report provide the names of the other members of the
reporting team. In this way, the bill retains the team
reporting provisions but narrows its scope.
3. Background
Mandatory child abuse and neglect laws were significantly recast
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in 1980 by SB 781 (Rains). At the time, mandated reporters were
divided into four categories: child care custodians, medical
practitioners, non-medical practitioners and employees of a
child protective agency. SB 781 included the provision allowing
two or more mandated reporters who are present and jointly
become aware of child abuse to select one reporter by mutual
agreement, but required reporting by the other mandated
reporters if they become aware that the selected reporter failed
to report.
This is essentially the language in current law that this bill
would narrow.
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4. Support
The California Police Chiefs Association, sponsor of this bill,
submits in part:
. . . (W)hen multiple mandated reporters meet and
decide on a single reporter, there is no guarantee the
person designated to report will submit the report, or
will submit the report with all available detailed
information as it would be with each individual
reporting their own detailed information
independently. Even more concerning is the
possibility that the one designated to report might
actually be involved in the suspected abuse or
neglect, or will conceal details or the identify of
someone that is involved due to a personal
relationship.
The author's office has provided the Committee with news
articles concerning incidents of child abuse in school settings
not reported in a timely fashion ( in at least one case, for
years) even though multiple mandated reporters were reported to
have known of the incidents.
5. Opposition
In a letter sent prior to the most recent amendments to the
bill, the California Association of Marriage and Family
Therapists, which opposes this bill, submitted in part:
While we understand and agree that reporting suspected
child abuse and/or neglect is a necessary and
essential duty of the mandated reporter, it is very
unclear why numerous employees within the same
facility must make such a report individually.
Requiring a report from each individual who receives
information about the same mandated report scenario is
duplicative and inefficient for both the mandated
reporter(s) as well as the county and community
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departments (that are already overburdened and spread
thin). Because protection of this vulnerable
population can be achieved through reporting by one
employee, one time, to mandate that numerous reports
be made is simply a drain of scarce resources.
The author and/or members of the Committee may wish to discuss
whether the most recent amendments to the bill address these
concerns or, if not, whether additional amendments could be made
which are responsive to these concerns and the goals of the
bill.
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