BILL ANALYSIS Ó
AB 1687
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1687 (Conway) - As Amended: March 26, 2014
SUBJECT : Persons with Developmental Disabilities Bill of
Rights.
SUMMARY : Establishes the Persons with Developmental
Disabilities Bill of Rights and adds to the list of rights
provided in current statute.
Specifically, this bill :
1)Renames the list of rights granted to persons with
developmental disabilities included in WIC Section 4502 the
Persons with Developmental Disabilities Bill of Rights.
2)Adds to the list of rights granted to persons with
developmental disabilities the right to a prompt investigation
of any alleged abuse against them.
EXISTING LAW
1)Establishes an entitlement to services for individuals with
developmental disabilities under the Lanterman Developmental
Disabilities Services Act (Lanterman Act). (WIC 4500 et seq.)
2)Grants all individuals with developmental disabilities, among
all other rights and responsibilities established for any
individual by the United States Constitution and laws and the
California Constitution and laws, the right to treatment and
habilitation services and supports in the least restrictive
environment and the right to be free from harm, including
unnecessary physical restraint or isolation, excessive
medication, abuse, or neglect. (WIC 4502)
3)Prohibits discrimination against individuals in protected
classes, including national origin and ethnic group
identification, for purposes of providing full and equal
access to benefits or programs that are operated or funded by
the state. (GOV 11135 et seq.)
AB 1687
Page 2
4)Designates as a mandated reporter of abuse any person with
responsibility for care or custody of an elder or dependent
adult and requires that mandated reporter to report the known
or suspected incident of abuse immediately or as soon as
practicably possible, as specified. (WIC 15630)
5)Defines "dependent adult" as any person who is between the
ages of 18 and 64, who has physical or mental limitations
which 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 also includes in the definition
any person between the ages of 18 and 64 who is admitted as an
inpatient to a 24-hour health facility. (PC 368(h)
6)Provides that local and state law enforcement agencies shall
have concurrent jurisdiction to investigate elder and
dependent adult abuse and all other crimes against elder
victims and victims with disabilities, and provides that adult
protective services agencies and long-term care ombudsman
programs also have jurisdiction to investigate elder and
dependent abuse and criminal neglect, to the extent permitted
by law, except that law enforcement agencies shall retain
exclusive responsibility for criminal investigations. (PC
368.5)
7)Establishes minimum standards for the examination and
treatment of victims of sexual assault, including notification
of law enforcement and a requirement that consent be provided
by the victim prior to a physical examination, as specified.
(PC 13823.11)
8)Requires an updated continuing education Peace Officer
Standards and Training (POST) course that relates to law
enforcement interaction with people with mental disabilities
to be available to law enforcement agencies in California.
(PC 13515.25(a))
9)Defines protection and advocacy agency as the private,
nonprofit corporation designated by the Governor, pursuant to
federal law, for the protection and advocacy of the rights of
persons with disabilities, including people with developmental
disabilities and people with mental illness, as specified.
AB 1687
Page 3
(WIC 4900(i))
FISCAL EFFECT : This bill has been keyed non-fiscal by the
Office of Legislative Counsel.
COMMENTS : This bill is one of three introduced by the author
intended to address crimes committed against people with
developmental disabilities. This bill adds to an established
list of rights for people with developmental disabilities the
right to a prompt investigation of any alleged abuse against
them.
Background : The Lanterman Act (Welfare & Institutions (W&I)
Code § 4500 et seq.) guides the provision of services and
supports for Californians with developmental disabilities. Each
individual under the Act, typically referred to as a "consumer,"
is legally entitled to treatment and habilitation services and
supports in the least restrictive environment. Lanterman Act
services are designed to enable all consumers to live more
independent and productive lives in the community.
The term "developmental disability" means a disability that
originates before an individual attains 18 years of age, is
expected to continue indefinitely, and constitutes a substantial
disability for that individual. It includes intellectual
disabilities, cerebral palsy, epilepsy, and autism spectrum
disorders (ASD). Other developmental disabilities are those
disabling conditions similar to an intellectual disability that
require treatment (i.e., care and management) similar to that
required by individuals with an intellectual disability. This
does not include conditions that are solely psychiatric or
physical in nature, and the conditions must occur before age 18,
result in a substantial disability, be likely to continue
indefinitely, and involve brain damage or dysfunction. Examples
of conditions might include intracranial neoplasms, degenerative
brain disease or brain damage associated with accidents.
Direct responsibility for implementation of the Lanterman Act
service system is shared by the Department of Developmental
Services (DDS) and 21 regional centers, which are private
nonprofit entities, established pursuant to the Lanterman Act,
that contract with DDS to carry out many of the state's
responsibilities under the Act. The principal roles of regional
centers include intake and assessment, individualized program
plan development, case management, and securing services through
AB 1687
Page 4
generic agencies or purchasing services provided by vendors.
Regional centers also share primary responsibility with local
education agencies for provision of early intervention services
under the California Early Intervention Services Act.
The 21 regional centers throughout the state serve over 260,000
consumers who receive services such as residential placements,
supported living services, respite care, transportation, day
treatment programs, work support programs, and various social
and therapeutic activities. Approximately 1,300 consumers
reside at one of California's four Developmental Centers-and one
state-operated, specialized community facility-which provide
24-hour habilitation and medical and social treatment services.
Current rights of people with developmental disabilities : In
addition to having the same legal rights and responsibilities
guaranteed to any other individual in the US Constitution or the
California Constitution, Section 4502 of the Welfare &
Institutions Code, which this bill amends, provides a more
explicit list of rights that the Legislature intends to uphold
for individuals with developmental disabilities. These are:
1)A right to treatment and habilitation services and supports in
the least restrictive environment;
2)A right to dignity, privacy, and humane care. To the maximum
extent possible, treatment, services, and supports shall be
provided in natural community settings;
3)A right to participate in an appropriate program of publicly
supported education, regardless of degree of disability;
4)A right to prompt medical care and treatment;
5)A right to religious freedom and practice;
6)A right to social interaction and participation in community
activities;
7)A right to physical exercise and recreational opportunities;
8)A right to be free from harm, including unnecessary physical
restraint, or isolation, excessive medication, abuse, or
neglect;
AB 1687
Page 5
9)A right to be free from hazardous procedures; and
10)A right to make choices in their own lives, including, but
not limited to, where and with whom they live, their
relationships with people in their community, the way they
spend their time, including education, employment, and
leisure, the pursuit of their personal future, and program
planning and implementation.
While these rights should be readily granted, without question,
to any person, the often substandard and inappropriate treatment
of people with developmental disabilities that led to
development of the Lanterman Act and other major changes in law
to protect individuals with disabilities prompted the
Legislature's development of this explicit list of rights.
Investigations of abuse : While most people without disabilities
must contact local law enforcement to report an alleged crime
committed against them, a complaint of alleged abuse against a
person with a disability, even if he or she does not have a
developmental disability, can be made to a number of local and
statewide enforcement agencies. Among the agencies that respond
to and investigate such complaints are local law enforcement,
the Long Term Care Ombudsman, Adult Protective Services, Child
Protective Services, the California Department of Social
Services and the Department of Public Health, with some
variation in applicability of the latter few based on the
individual's residence type and age. The Office of Protective
Services (OPS) is the primary agency responsible for
investigating abuse in the state's developmental centers for
persons with developmental disabilities. Additionally, the
state's protection and advocacy organization has an
investigations unit, which also looks into allegations of abuse
and neglect involving people with disabilities and can provide
key information to enforcement agencies that facilitate
additional actions to help the victims.
Need for the bill : In expressing the need for this bill,
Disability Rights California, the state's mandated protection
and advocacy agency, states, "People with disabilities are more
likely to be the victims of abuse and neglect. Yet, allegations
of crimes against them receive lower priority and are
investigated more slowly than crimes against their non-disabled
AB 1687
Page 6
peers, with some investigations never being finished or taking
months or years to conclude."
The majority of laws and regulations pertaining to the abuse of
children, or dependent or elder adults, focus on requirements
for certain individuals or entities to report allegations of
abuse within a specified amount of time but often do not address
the timeline for an investigation of such a report. This bill
seeks to ensure that prompt investigations of alleged abuse
against individuals with developmental disabilities are part of
the process that follows the required reports of alleged abuse.
Staff comments : The current language in this bill specifies a
right to a prompt investigation of alleged abuse without
defining "prompt." Additionally, there is no indication as to
whether the standard for a prompt investigation of alleged abuse
of a person with a developmental disability in this bill should
be distinct from the standard provided for any other individual,
which is often not tied to a specific timeline. Should this
bill move forward the author may want to clarify whether there
is an expectation that local law enforcement, Adult Protective
Services, or any other agency with jurisdiction to investigate
alleged abuse of a person with a developmental disability is
required to adhere to a specific timeframe in which to conduct
the investigation.
Additionally, there are multiple agencies that often have
overlapping jurisdiction in the various settings in which an
individual with a developmental disability might reside-in his
or her own home, in a community facility, in a developmental
center, etc. Should this bill move forward the author may wish
to clarify whether the intent is for a specific agency to
promptly investigate a report of alleged abuse or if any agency
with jurisdiction to investigate can carry out the duty.
PRIOR LEGISLATION :
AB 602 (Yamada) Chapter 673, Statutes of 2013, established a
timeline for reporting specific incidents of abuse in
developmental centers, required development of POST training on
law enforcement interaction with mentally disabled and
developmentally disabled persons living within a state mental
hospital or a state developmental center by July 1, 2015, and
made other changes to reporting and investigation requirements
for mental hospitals and developmental centers.
AB 1687
Page 7
SB 651 (Pavley) Chapter 724, Statutes of 2013, established
requirements for sexual assault examinations of residents in
state hospitals and developmental centers, and establishes a new
penalty for failure of developmental centers to report specified
incidents.
SB 1051 (Liu, Emmerson) Chapter 660, Statutes of 2012,
established a requirement for DDS and DSH to report certain
crimes involving death or major injury to the state's designated
protection and advocacy agency, required that mandated reporters
within a developmental center immediately report suspected abuse
to OPS, and defined the job requirements for the director of
OPS.
SB 1522 (Leno) Chapter 666, Statutes of 2012, established the
requirement that DDS report major crimes, as specified, to the
local law enforcement agency with jurisdiction over the
developmental center regardless of whether OPS had investigated
the facts of the incident.
SB 110 (Liu) chapter 617, Statutes of 2010, requires law
enforcement to retain exclusive responsibility for criminal
investigations against elders, dependent adults and persons with
disabilities when Adult Protective Services and local ombudsman
are conducting concurrent investigations.
AB 430, (Cardenas) Chapter 171, Statutes of 2001, the health
trailer bill, required developmental centers to establish
Memorandums of Understanding with local law enforcement
agencies.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of Regional Center Agencies (ARCA)
California Association for Health Services at Home
California Commission on Aging (CCoA)
California Psychological Association
Disability Rights California
Opposition
None on file.
AB 1687
Page 8
Analysis Prepared by : Myesha Jackson / HUM. S. / (916)
319-2089