BILL ANALYSIS                                                                                                                                                                                                    






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                          Senator Leland Y. Yee, Chair


          BILL NO:       SB 651                                       
          S
          AUTHOR:        Pavley                                       
          B
          VERSION:       February 22, 2013
          HEARING DATE:  April 9, 2013                                
          6
          FISCAL:        Yes                                          
          5
                                                                      
          1
          CONSULTANT: Mareva Brown
                                        

                                     SUBJECT
                                         
                   Developmental centers and state hospitals

                                     SUMMARY  

          Requires that designated investigators of developmental  
          centers and state hospitals ensure that a resident who is a  
          victim or suspected victim of sexual assault is provided a  
          medical evidentiary examination performed at an appropriate  
          off-site facility, as specified; deems that a developmental  
          center's failure to report specified incidents to local law  
          enforcement a class B violation.

                                     ABSTRACT  

           Existing law

              1)   Establishes the state Department of Developmental  
               Services and identifies the state's Developmental  
               Centers as being within its jurisdiction. (WIC 4400,  
               4440)

             2)   Establishes the state Department of State Hospitals  
               and identifies the state institutions for the mentally  
               disordered as being within its jurisdiction. (WIC 7200  
               et seq.)
                                                         Continued---



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             3)   Establishes an investigative force within each  
               developmental center and state hospital for the  
               purpose of enforcing the rules and regulations of the  
               hospital, preserving peace and order on the premises  
               thereof, and protecting and preserving the property of  
               the state. (WIC 4493)

             4)   Requires a developmental center to immediately  
               report specified incidents involving a resident to the  
               local law enforcement agency having jurisdiction over  
               the city or county where the developmental center is  
               located. (WIC 4427.5(a)(1))

             5)   Establishes that the Department of Public Health  
               licenses and regulates health facilities, including  
               long term care facilities, as specified. (HSC 1417, et  
               seq.)

             6)   Establishes a series of fines and penalties to be  
               levied against skilled nursing facilities and  
               intermediate care facilities for each citation, as  
               specified. (HSC 1424.5)

             7)   Requires the California Emergency Management  
               Agency, with the assistance of an advisory committee,  
               to establish a protocol for the examination and  
               treatment of victims of sexual assault and attempted  
               sexual assault, including child molestation, and the  
               collection and preservation of evidence therefrom. (PC  
               13823.5)

             8)   Requires that each county designate at least one  
               general acute care hospital to perform examinations on  
               victims of sexual assault, including child  
               molestation. (PC 13823.9 )

             9)   Requires that each county with a population of more  
               than 100,000 shall arrange for professional personnel  
               trained in the examination of victims of sexual  
               assault, including child molestation, to be present or  
               on call either in the county hospital which provides  
               emergency medical services or in any general acute  
               care hospital which has contracted with the county to  
               provide emergency medical services. In a county with a  




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               population of 1 million residents or more, the  
               presence of these professional personnel shall be  
               arranged in at least one general acute care hospital  
               for each 1 million persons in the county. (PC 13823.9)

           This bill

              1)   Establishes that failure of a developmental center  
               to report specified criminal incidents to local law  
               enforcement is a class B violation and subject to  
               specified penalties as defined in HSC 1424.5.

             2)   Requires that designated investigators at state  
               hospitals ensure that a state hospital resident who is  
               a victim or suspected victim of sexual assault, as  
               specified, is provided a medical evidentiary  
               examination performed at an appropriate facility off  
               the grounds of a state hospital. 

             3)   Requires that designated investigators at  
               developmental centers ensure that a developmental  
               center resident who is a victim or suspected victim of  
               sexual assault, as specified, is provided a medical  
               evidentiary examination performed at an appropriate  
               facility off the grounds of a developmental center. 


                                  FISCAL IMPACT  

          This bill has not been analyzed by a fiscal committee.

                                         



                           BACKGROUND AND DISCUSSION  

           Purpose of the bill

           The author states that the SB 651 will address the lack of  
          appropriate follow-care for victims and suspected victims  
          of sexual assaults in state developmental centers and state  
          mental hospitals. Victims typically are interviewed and  
          examined by staff physicians and investigators at the  
          developmental centers, who lack the level of experience of  




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          trained investigators to conduct examinations and collect  
          physical evidence. 

          According to the author, residents are vulnerable to sexual  
          assault, but few, if any, receive timely forensic medical  
          examinations by trained independent sexual assault  
          examiners. The author writes that medical evidence is  
          crucial in cases involving individuals with disabilities  
          who may lack the ability to give testimony in court.

          SB 651 also remedies a concern that a 2012 bill that  
          required DDS to report major crimes to outside law  
          enforcement agencies did not impose a penalty for failure  
          to do so. 

           Senate oversight hearings 

           In March 2012, concerns about the investigative  
          qualifications of the law enforcement force within the  
          state's developmental centers prompted a Senate Human  
          Services Committee oversight hearing in March 2012,  
          "Examining Law Enforcement Practices within State  
          Developmental Centers." 

          The hearing was prompted by media coverage that questioned  
          the effectiveness and professionalism of the Office of  
          Protective Services (OPS), which performs law enforcement  
          activities within the developmental centers. For more than  
          a decade, the officials have debated how to balance the  
          need for an experienced, outside detective force to  
          investigate major crimes at the Developmental Centers and  
          State Hospitals against the need for in-house investigators  
          who are trained in communicating with and investigating  
          crimes against individuals with severe developmental  
          disabilities. 

          In 2002, a special Attorney General investigation concluded  
          that despite significant reservations about the on-site  
          investigators' experience, questions about their  
          independence from site management, DDS should not eliminate  
          its police force, the Office of Protective Services (OPS),  
          nor eliminate the OPS investigative functions. Instead, the  
          Attorney General recommended establishing Memorandums of  
          Understanding with local law enforcement agencies that  
          provide authority for those agencies to independently  




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          review investigations completed by OPS, and create a  
          process for local agencies to assist with or take over  
          investigations that are in progress. Those MOUs were  
          required by legislation in 2001. 

          The MOUs, which are in effect today, provide an avenue for  
          local law enforcement detectives to intervene in major or  
          complex cases while permitting OPS to handle less complex,  
          smaller cases. Additional legislation had required DDS to  
          report all resident deaths and serious injuries of unknown  
          origin to the appropriate outside law enforcement agency.  
          After the March 2012 hearing, two bills were passed which  
          granted additional oversight of major crime investigations.  
          SB 1051 required all major incidents to be also reported to  
          the state's designated Protection and Advocacy Agency,  
          which advocates for residents within the facilities. It  
          also bolstered the job requirements of the chief of OPS and  
          changed his reporting from within the DDS to the Secretary  
          of the Health and Human Services Agency. SB 1522 defined a  
          list of major crimes that must be reported to outside law  
          enforcement agencies including death, sexual assault,  
          assault with a deadly weapon by a nonresident of the  
          developmental center, an assault with force likely to  
          produce great bodily injury, an injury to the genitals when  
          the cause of injury is undetermined, or a broken bone when  
          the cause of the break is undetermined.

          In October 2012, concerns about ongoing licensing troubles  
          prompted a joint Senate Human Services Committee and  
          Subcommittee #3 of the Senate Budget and Fiscal Review  
          Committee (Health and Human Services) oversight hearing on  
          developmental centers. Among the issues addressed in the  
          hearing, "A System in Transition: California's  
          Developmental Centers," were questions of oversight and  
          care at Sonoma Developmental Center, which since has lost  
          federal certification for 40 percent of its intermediate  
          care units. In a 250-page licensing report prepared by the  
          Department of Public Health, a number of specific patient  
          abuses were outlined, including the sexual assault of two  
          patients by a staff member, suspected injuries from a stun  
          gun on numerous residents of one unit, inadequate  
          supervision resulting increased attacks on residents by  
          other residents, and other harmful incidents. 

           Sexual Assault Forensic Exam teams




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           California law requires that a sexual assault victim be  
          examined by a forensic medical examiner who shall document  
          findings, including the collection of evidence, by using a  
          series of standard state forensic medical report forms.  
          Examiners also are trained to adhere to specific protocols.  


          State law also requires each county to designate at least  
          one general acute hospital to perform examinations for  
          sexual assault victims. Counties with populations of  
          100,000 residents or more are required to have a medical  
          professional trained in sexual assault examinations present  
          or on call at all times in the designated county emergency  
          medical services hospital. (PC 13823.9) Counties with fewer  
          than 100,000 residents may contract or partner with a  
          Sexual Assault Forensic Exam team in a nearby county.
           
          Related legislation
           
          AB 602 (Yamada, 2013) would require the Commission on Peace  
          Officer Standards and Training 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 by  
          July 1, 2015.

          SB 1051 (Liu, Emmerson, Chapter 660, Statutes of 2012)  
          required 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) required DDS  
          to 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.

          AB 430, (Cardenas, Chapter 171, Statutes of 2001), the  
          health trailer bill, required developmental centers to  
          establish Memorandums of Understanding with local law  




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          enforcement agencies. 

           Comments
           
          Stakeholders have expressed concern about the ability of  
          OPS to "ensure" a medical examination is completed after a  
          referral is made. Therefore, the author's office, with  
          staff's concurrence, recommends the following amendments: 


          4313.5. Designated investigators of state hospitals shall  
           ensure that a   authorize a sexual assault forensic medical  
          examination for any  resident of a state hospital who is a  
          victim or suspected victim of sexual assault, as defined in  
          Section 15610.63,  is provided a medical evidentiary  
          examination  performed at an appropriate facility off the  
          grounds of a state hospital in accordance with Sections  
          13823.5 to 13823.12, inclusive, of the Penal Code.
          
          4427.7. Designated investigators of developmental centers  
          shall  ensure that a  authorize a sexual assault forensic  
          medical examination for any  resident of a developmental  
          center who is a victim or suspected victim of sexual  
          assault, as defined in Section 15610.63,  is provided a  
          medical evidentiary examination  performed at an appropriate  
          facility off the grounds of the developmental center in  
          accordance with Sections 13823.5 to 13823.12, inclusive, of  
          the Penal Code.



                                    POSITIONS  

          Support:       
                         California Association of Psychiatric  
          Technicians
                         California District Attorneys Association
                         California Statewide Law Enforcement  
                    Association
                         National Association of Social Workers
                         The Arc and United Cerebral Palsy in  
                    California


          Oppose:   None received




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