BILL ANALYSIS Ó
SB 651
Page A
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