BILL ANALYSIS                                                                                                                                                                                                    




                                                                  SB 651
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          Date of Hearing:   June 18, 2013

                        ASSEMBLY COMMITTEE ON HUMAN SERVICES
                                  Mark Stone, Chair
                     SB 651 (Pavely) - As Amended:  May 14, 2013

           SENATE VOTE :  37-0
           
          SUBJECT  :  Developmental centers and state hospitals.

           SUMMARY  :  Establishes 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.

          Specifically,  this bill  :

          1)Deems a developmental center's failure to report specified  
            incidents in which residents are harmed a class B violation,  
            as specified.

          2)Requires designated investigators of state hospitals to  
            authorize a sexual assault forensic medical examination at an  
            appropriate facility off the grounds of the state hospital for  
            a resident who is a victim or suspected victim of sexual  
            assault, as specified, and requires the person performing the  
            examination to notify the local law enforcement agency that  
            has jurisdiction over the state hospital.

          3)Authorizes the sexual assault forensic medical examination to  
            be performed at a state hospital by an independent sexual  
            assault forensic examiner if the state hospital is deemed  
            safer for the resident being examined than other facilities  
            and the state hospital is equipped with more adequate forensic  
            examination and evidence collection capacity than the  
            otherwise designated community examination facility, as  
            specified.

          4)Requires designated investigators of developmental centers to  
            authorize a sexual assault forensic medical examination at an  
            appropriate facility off the grounds of the developmental  
            center for a resident who is a victim or suspected victim of  
            sexual assault, as specified, and requires the person  
            performing the examination to notify the local law enforcement  









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            agency that has jurisdiction over the developmental center.

          5)Authorizes the sexual assault forensic medical examination to  
            be performed at a developmental center by an independent  
            sexual assault forensic examiner if the developmental center  
            is deemed safer for the resident being examined than other  
            facilities and the developmental center is equipped with more  
            adequate forensic examination and evidence collection capacity  
            than the otherwise designated community examination facility,  
            as specified.

           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)States that developmental centers are intended to provide  
            treatment, habilitation, training, and education of residents  
            to ensure they can become more comfortable, happy, and better  
            fitted to care for and support themselves.  (WIC 7503)

          3)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.)

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

          5)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 4313, 4493)

          6)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  
            in which the developmental center is located.  (WIC 4427.5)

          7)Requires the physician in charge of a patient receiving mental  
            health services, or the professional person in charge of the  
            facility in which the patient resides, to release information  
            about the patient to governmental law enforcement agencies  









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            when he or she has probable cause to believe the patient has  
            committed or been the victim of specified crimes, including  
            sexual assault.  (WIC 5328.4)

          8)Establishes a series of fines and penalties to be levied  
            against skilled nursing facilities and intermediate care  
            facilities for AA, A, and B citations, as specified.  (HSC  
            1424 et seq.)

          9)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)

          10)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 )

          11)Requires each county with a population of more than 100,000  
            to 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.  Requires the  
            presence of these professional personnel to be arranged in at  
            least one general acute care hospital for each 1 million  
            persons in the county if a county has a population of 1  
            million residents or more.  (PC 13823.9)

          12)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)

          13)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.   
            (WIC 4900(i))










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           FISCAL EFFECT  :  Unknown

           COMMENTS  :   This bill seeks to ensure that timely and  
          appropriate sexual assault examinations are performed by trained  
          examiners for victims and suspected victims of sexual assaults  
          in California's developmental centers and state hospitals.   
          Additionally, this bill imposes a penalty for failure of a  
          developmental center to report specified crimes, including  
          sexual assault, to law enforcement, which was not included in  
          prior legislation that created the reporting requirement.

           Developmental Services  :  The Lanterman Act 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 care and management similar to that required by  
          individuals with intellectual disabilities.

          The Department of Developmental Services (DDS) contracts with 21  
          regional centers, which are private nonprofit entities, to carry  
          out many of the state's responsibilities under the Lanterman  
          Act.  The regional center caseload is comprised of nearly  
          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.

           Developmental centers (DCs)  :  Over 1,500 regional center  
          consumers reside at one of California's four developmental  
          centers (Lanterman, Porterville, Sonoma, and Fairview) and one  
          state-operated, specialized community facility (Canyon Springs).  
           These facilities provide 24-hour habilitation and medical and  
          social treatment services.  While some residents in these  
          facilities were voluntarily placed there by relatives and  
          conservators due to acute medical needs and other special needs  









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          that make it unsafe for them to live in the community, some  
          residents have experienced involuntary placements due to court  
          orders (e.g., forensic placements at Porterville DC).

           State Hospitals  :  There are eight facilities in California under  
          the jurisdiction of the Department of State Hospitals (DSH);  
          five state hospitals and three psychiatric treatment facilities,  
          one of which (Stockton) is set to receive its first patients in  
          July 2013.  The cumulative in-patient population of the eight  
          facilities is expected to be 6,560 in the 2013-14 fiscal year,  
          according to DSH budget estimates.  Unlike developmental  
          centers, where residents' primary diagnoses are developmental  
          disabilities, most patients in state hospitals are diagnosed  
          with serious mental illnesses.  Many of them have been  
          involuntarily committed because they have been deemed to be  
          harmful to themselves or others, or because they have committed  
          crimes due wholly or in part to their mental illness.  The  
          projected top two commitment types in state hospitals during the  
          2013-14 fiscal year, accounting for over 40% of the population,  
          will be mentally disordered offenders (e.g., patients with  
          severe mental disorders that are not in remission, which led to  
          the commission of their crimes) and patients who, when  
          prosecuted, pled not guilty by reason of insanity.<1>

           Facility police services  :  The Office of Protective Services  
          (OPS) at developmental centers and the Department of Police  
          Services at state hospitals consist of on-site police officers  
          and investigators charged with preserving the peace, enforcing  
          laws and regulations, and maintaining and protecting facility  
          residents and their rights.  The investigators and officers  
          within OPS are charged with duties within the facilities similar  
          to those of peace officers in the community, including  
          responding to allegations of sexual assault.  However, incidents  
          brought to light in 2012 show that OPS investigators in the  
          state's developmental centers were not handling reports of  
          sexual assault appropriately for a number of years.  According  
          to numerous reports from the state's protection and advocacy  
          organization, Disability Rights California, developmental center  
          residents accused facility caretakers of rape and molestation 36  
          times from 2009 to 2012, but none of those residents were sent  
          out for an independent examination by a trained medical  
          ---------------------------
          <1> California Department of State Hospitals, Governor's 2013-14  
          Budget Highlights:  
           http://www.dsh.ca.gov/AboutUs/docs/2013-14_Gov_Budget_Highlights. 
          pdf  . 








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          professional, nor were they even examined using a sexual assault  
          response team (SART) exam, also known as a "rape kit," which is  
          standard law enforcement practice in the community.  Since these  
          reports of abuse, two pieces of legislation, SB 1051 (Liu,  
          Emmerson) and SB 1522 (Leno) were both signed into law in 2012,  
          resulting in more stringent requirements for police officers and  
          other staff within developmental centers and state hospitals to  
          report certain incidents to law enforcement, including sexual  
          assault allegations.  As a result, developmental centers and  
          state hospitals have had to tighten their processes with respect  
          to responding to and reporting allegations of sexual assault,  
          which has led to more cases being referred out of facilities for  
          appropriate exams, and more reports being made to Disability  
          Rights California, as required by law.

           Sexual assault forensic medical exams  :  Under current law,  
          counties are required to have a medical professional trained in  
          sexual assault examinations present or on call, at all times, in  
          a designated county hospital.  Counties with fewer than 100,000  
          residents are authorized to partner with the trained exam team  
          in a nearby county to meet this requirement.  Statute defines a  
          medical evidentiary examination as the process of evaluating,  
          collecting, preserving and documenting evidence, interpreting  
          findings, and documenting examination results.  The health care  
          professionals qualified to perform medical evidentiary  
          examinations, pursuant to Penal Code Section 13823.5(e), are  
          physicians and surgeons or nurses working in conjunction with a  
          physician and surgeon.  Forensic medical examiners are trained  
          by the California Clinical Forensic Medical Training Center and  
          follow specific protocols with respect to performing the exams.   


          While the examination can include the collection of physical  
          evidence, an observation and evaluation through an interview of  
          the victim is also essential.  The interview might include  
          communication through the use of anatomical dolls or drawings,  
          or other means that allow victims to provide information if they  
          are unable to talk about their assault.  Examiner training in  
          specialized methods of collecting evidence can be especially  
          important for residents of state hospitals or developmental  
          centers that may have difficulty communicating verbally, either  
          due to their condition or emotional state.  Additionally, a  
          thorough examination that does not simply rely on what a  
          resident can verbally say about their assault is essential in  
          cases in which residents are unable to provide testimony in  









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          court.

           Facility citations  :  Class AA, A and B citations are issued to  
          long-term health care facilities when it is found that patient  
          or resident rights or facility protocols have been violated,  
          leading to imminent danger, physical or emotional harm, or death  
          of a patient or resident.  Class B citations for skilled nursing  
          and intermediate care facilities, which carry the lowest penalty  
          amount of $100 to $2,000, are issued when it is determined that  
          a long-term care patient's or resident's rights have been  
          violated in a manner that will likely cause significant  
          humiliation, indignity, anxiety or other emotional trauma to the  
          patient or resident (HSC 1424).

           Need for the bill  :  This bill sets forth a standard, objective  
          process for developmental centers and state hospitals to follow  
          with respect to sexual assault examinations of their residents  
          in order to facilitate a higher degree of accuracy, better  
          outcomes for sexual assault victims, and increased  
          accountability within the facilities.

          According to Disability Rights California, "People with  
          developmental disabilities and psychiatric disabilities are at  
          much greater risk for sexual assault than their non-disabled  
          peers, and are often repeatedly victimized.  Conservative  
          estimates are 80% of women and nearly 40% of men with  
          developmental disabilities will be sexually assaulted at least  
          once in their lifetime.  Of these, 50% will be assaulted 10 or  
          more times.  People who have psychiatric disabilities are 23  
          times more likely to be raped than those who do not.   
          Additionally, the risk of sexual assault is two to four times  
          higher in institutions than in the community."

          As proposed, this bill would still allow developmental center  
          and state hospital investigators to base their referrals to  
          outside sexual assault examiners on information they have  
          gathered that indicates that a resident is a victim or suspected  
          victim of sexual assault.  However, by requiring that the  
          interviewing and examining duties only be carried out by  
          qualified, trained forensic medical examiners, the bill may help  
          reduce bias in evidence collection and documentation, and can  
          mitigate the potential to lose or degrade evidence.  The  
          processes established in this bill may shed more light on sexual  
          abuse occurring in these facilities in a way that allows for  
          better follow-up care and treatment for victims, in addition to  









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          steps the facilities can take to prevent future occurrences.  

           Author's statement  :  According to the author, "This bill is  
          needed to ensure that suspected victims of sexual assaults are  
          taken seriously and that rape exams are clearly required  
          throughout our state institutions for the disabled.   
          Specifically, SB 651 is designed to help victims of sex crimes  
          in California's developmental centers and state and psychiatric  
          hospitals receive timely and objective forensic medical  
          examinations.  It is crucial that sexual assault victims in  
          these state facilities receive appropriate care.  These  
          residents are most vulnerable to sexual assault, but as we have  
          learned in the last years, few, if any, have received exams by  
          trained independent sexual assault investigators?Physical  
          evidence is particularly important in cases involving those  
          patients with cerebral palsy and profound intellectual  
          disabilities, because they often lack the ability to give  
          testimony to courts and investigators?It should be a top  
          priority to ensure that these vulnerable patients who are  
          committed to our state institutions are safe from harm and given  
          the care they desperately need and deserve."

































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           RELATED LEGISLATION

           AB 602 (Yamada, 2013) would, among other provisions, require  
          that mandated reporters of elder or dependent adult abuse report  
          alleged abuse or neglect, including sexual abuse, within two  
          hours of observing or suspecting abuse in a state hospital or  
          developmental center.

           PRIOR LEGISLATION

           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. 

          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.
           
            DOUBLE REFERRAL  .  This bill has been double-referred.  Should  
          this bill pass out of this committee, it will be referred to the  
          Assembly Health Committee.

          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Association of Regional Center Agencies (ARCA)
          California Alliance for Retired Americans
          California Association of Psychiatric Technicians
          California Coalition Against Sexual Assault (CALCASA)
          California District Attorneys Association (CDAA)
          Developmental Disabilities Board
          Disability Rights California









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          East Bay Legislative Coalition
          National Association of Social Workers, California Chapter  
          (NASW-CA)
          The Arc and United Cerebral Palsy California Collaboration
           
            Opposition 
           
          None on file

           Analysis Prepared by  :    Myesha Jackson / HUM. S. / (916)  
          319-2089