BILL ANALYSIS Ó
SB 651
Page 1
Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
SB 651 (Pavley and Leno) - 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 to local law
enforcement. Specifically, this bill :
1)Makes it a class B violation, as specified, for a
developmental center to fail to report to local law
enforcement: a) a death; b) a sexual assault, as defined; c)
an assault with a deadly weapon by a nonresident, as
specified; d) an assault with force likely to produce great
bodily injury, as specified; e) an injury to the genitals when
the cause of the injury is undetermined; or f) a broken bone,
when the cause of the break is undetermined.
2)Requires designated investigators of state hospitals and
developmental centers to 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.
3)Requires sexual assault forensic medical examinations to be
performed by an independent sexual assault forensic examiner
at an appropriate facility off the grounds of a state hospital
or developmental center, as defined, including a requirement
that local law enforcement be notified, as specified.
4)Allows sexual assault forensic medical examinations to be
performed at a state hospital or developmental center only if
it is deemed safer for the victim and the examination
facilities are equipped with forensic examination and evidence
collection capability comparable to that of the designated
community examination facility, as determined by the
independent sexual assault forensic examiner.
EXISTING LAW :
SB 651
Page 2
1)Gives the Department of Developmental Services (DDS)
jurisdiction over the state's developmental centers.
2)Gives the Department of State Hospitals (DSH) jurisdiction
over the state hospitals institutions for the mentally
disordered.
3)Allows state hospitals and developmental centers to designate
employees as police officers, for the purpose of enforcing the
rules and regulations of the institution, preserving peace and
order on the premises thereof, and protecting and preserving
the property of the state. Gives these police officers the
powers and authority of peace officers, as specified.
4)Requires a developmental center to immediately report
specified incidents involving a resident, including deaths,
sexual assaults, assaults, as specified, and certain injuries,
to the local law enforcement agency having jurisdiction over
the city or county in which the developmental center is
located.
5)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
when he or she has probable cause to believe the patient has
committed or been the victim of specified crimes, including
sexual assault.
6)Requires the California Emergency Management Agency within the
office of the Governor, 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.
7)Requires that each county designate at least one general acute
care hospital to perform examinations on victims of sexual
assault, including child molestation.
8)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
SB 651
Page 3
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 one million persons in the county
if a county has a population of one million residents or more.
9)Requires every general acute care hospital that examines a
victim of sexual assault to comply with specified standards,
including notification of law enforcement, consent from the
victim, procedures for physical examination, procedures for
the collection of physical evidence, and a requirement that a
victim be given postcoital contraception, upon request.
10)Requires mandated reporters of abuse of elder and dependent
adult abuse to report any alleged abuse that occurs in a state
hospital or developmental center to the designated
investigator of DSH or the designated investigator of DDS, or
to a local law enforcement agency.
11)Requires health facilities, including general acute care
hospitals and long-term health care facilities (including
skilled nursing facilities (SNFs), and intermediate care
facilities (ICFs)), to be licensed by the state Department of
Public Health (DPH).
12)Defines class B violations as long-term health care facility
violations that DPH determines have a direct or immediate
relationship to the health, safety, or security of long-term
health care facility patients or residents, other than class
AA or A violations (i.e., those that are not the direct or
proximate cause of a patient or resident's death and do not
pose an imminent danger or substantial probability of death or
serious harm to patients or residents).
13)For SNFs and ICFs, makes each class B citation subject to a
civil penalty of $100 to $2,000. Requires second and
subsequent class B citations within a 12-month period to be
trebled.
14)Makes it a class B violation for a SNF to fail to post
facility rating information determined by the federal Centers
for Medicare and Medicaid Services, as specified.
SB 651
Page 4
15)Makes it a class B violation for a SNF or ICF to interfere
with or prohibit the formation of a family council, as
specified.
16)Makes it a class B violation for a long-term health care
facility to fail to report all incidents of alleged abuse or
suspected abuse of a resident of the facility to DPH
immediately, or within 24 hours.
17)Makes it a class B violation for a SNF licensee to fail to
report to DPH within 24 hours upon notice of a lien, specified
late payments, and other occurrences associated with financial
distress, as specified.
18)Makes it a class B violation for a long-term care facility to
fail to prominently post a copy of each class AA and class A
citation for 120 days. Makes it a class B violation for a
facility to fail to retain and make promptly available a copy
of any uncorrected class B violation.
19)Requires hospitals, as specified, to report to DPH within
five days, or within 24 hours for an ongoing urgent or
emergent threat to patients, personnel, or visitors, when an
adverse event occurs. Defines "adverse event," for these
purposes, to include several categories of events, including
criminal events. Specifies that criminal events include: care
ordered by or provided by someone impersonating a licensed
health care provider, patient abductions, sexual assault of a
patient, and death or significant injury resulting from a
physical assault on hospital grounds.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
designed to address the lack of forensic evidence collection
for sexual assault victims and suspected sexual assault
victims in state developmental centers and state hospitals.
The author notes that an investigation requested by DDS and
undertaken by Disability Rights California (DRC) in March 2012
identified 36 cases of alleged molestation of residents at
California's developmental centers by caretakers during the
last three years, but the Office of Protective Services (OPS),
SB 651
Page 5
the developmental centers' on-site police force, did not
complete even basic forensic evidence collections. The author
states that OPS failed to order a single rape exam during this
period. At other police departments, a rape examination by
trained forensic examiners for suspected sexual assault
victims is considered routine in order to collect evidence for
prosecution.
This bill would require that state hospitals and developmental
centers provide a resident who is a victim or suspected victim
of sexual assault with a medical evidentiary examination at an
appropriate off-site facility. This bill also creates a
penalty for developmental centers that fail to report serious
incidents of abuse or criminal conduct to law enforcement.
The author indicates that, since this bill was introduced, DDS
has reported that they have upgraded their training of first
responder staff and have sent three suspected rapes to outside
hospitals for sexual assault exams. Two of the three have
been confirmed sexual assaults. The author also indicates
that, between July 2010 and June 2013, DSH reports that it has
received 165 reports of sexual assaults by patients and staff.
Of those, approximately 29 patients were sent out to local
hospitals for rape exams.
2)DEVELOPMENTAL CENTERS .
a) Background . Under current law, DDS shares
responsibility for providing services to developmentally
disabled individuals with 21 regional centers, which are
private nonprofit entities that contract with DDS to carry
out many of the state's responsibilities to these
individuals. Approximately 1,500 regional center consumers
reside at the state's four developmental centers
(Lanterman, Porterville, Sonoma, and Fairview) and one
state-operated, specialized community facility (Canyon
Springs). The four developmental centers are licensed as
general acute care hospitals and serve individuals with
developmental disabilities in distinct parts licensed as
SNFs and ICF/ Developmentally Disabled (ICF/DDs). Canyon
Springs is licensed as an ICF/DD. 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 that make it
SB 651
Page 6
unsafe for them to live in the community, some residents
have experienced involuntary placements due to court orders
(e.g., forensic placements at Porterville). Over 99% of
regional center consumers receive services in the community
and live with their parents or other relatives, in their
own houses or apartments, or in group homes designed to
meet their needs. Less than 1% live in developmental
centers. Since 2001, the developmental center population
has declined about 7% per year, consistent with federal and
state policy to provide services to developmentally
disabled individuals in the community rather than in an
institutional setting.
b) Investigations within developmental centers . OPS is
responsible for enforcing the rules and regulations of
developmental centers. OPS officers, employees of DDS who
have peace officer status under current law, are
responsible for the investigation of thefts, trespassing,
and suspicious person's reports; responding to emergency
calls; serving legal documents; and enforcing restraining
orders on the grounds of the developmental centers. Like
municipal police and sheriff's departments, OPS officers
receive training at Peace Officers Standards and Training
academies.
Beginning in February 2012, a series of reports by California
Watch (an independent, non-profit online investigative
reporting center) outlined questionable practices in
several major crime investigations at various state
developmental centers. The series questioned the training
qualifications of developmental center investigators and
cited cases in which charts were altered and also pointed
to poor police work as a reason for a lack of prosecutions
in major cases.
A subsequent investigation requested in March 2012 by DDS and
undertaken by DRC, the sponsor of this bill, found 36 cases
of alleged molestation of residents at California's
developmental centers by caretakers during the last three
years. The DRC investigation found that OPS did not
complete even basic forensic evidence collections, and none
of the cases resulted in a hospital-supervised rape exam.
On March 13, 2013, DDS announced several new measures
intended to improve safety and strengthen protections for
SB 651
Page 7
residents of the state's developmental centers, based in
part on recommendations by DRC. These measures include
independent oversight by a nationally recognized law
enforcement specialist, new protocols for first responders
to the scenes of possible abuse, new rules for
investigations, and additional training requirements for
DDS peace officers. DDS also announced that it would
implement an automated-incident-tracking system for
developmental centers to provide prompt access to
information for first responders, investigators,
developmental center administrators, and DDS headquarters.
At Sonoma Developmental Center, DDS implemented a number of
changes, including contracting with the California Highway
Patrol to oversee the law enforcement operations at Sonoma;
establishment of an independent onsite monitor; expanding
comprehensive functional assessments for residents; and
enhanced staff training and accountability.
c) Decertification of Sonoma Developmental Center . DPH is
responsible for inspecting health facilities for compliance
with California law as well as administering the federal
Medicaid certification program. An inspection in December
2012 at the Sonoma Developmental Center's ICF revealed that
previously identified systemic deficiencies remained
uncorrected. This required DPH to initiate steps to
decertify the entire ICF. The ICF serves approximately 290
intellectually disabled residents. In January 2013, DDS
voluntarily terminated the Medicaid certification of four
of the 10 residential units at the ICF. This action
permitted the continued certification of the remaining six
units while needed corrections are made based on a
federally approved improvement plan. The plan outlines
several actions the Sonoma Developmental Center must
achieve to remain certified, including: entering into a
contract with an independent entity that will perform a
root cause analysis, develop action plans to correct
identified deficiencies, and report monthly progress to
DPH.
d) Task Force . In June 2013, the California Health and
Human Services Agency (CHHSA) announced the creation of a
Task Force on the Future of the State Developmental
Centers, with a membership that includes consumers,
consumer advocates, regional centers, community service
providers, organized labor, families of developmental
SB 651
Page 8
center residents, members of the Legislature, and DDS
staff. According to CHHSA, The Task Force will develop a
plan to assure quality, effective, and efficient delivery
of integrated services to meet the special needs of current
residents living in the developmental centers. It will
consider the fiscal implications of developmental center
operations, including the maintenance of the aging
infrastructure, staffing, and resource constraints; the
availability of alternative and community resources; a
timeline for future closures; and any statutory and
regulatory changes that may be needed to ensure the best
care possible for this special population.
3)STATE HOSPITALS . The state's five state hospitals,
Atascadero, Coalinga, Metropolitan, Napa, and Patton, provide
treatment to a combined patient population of over 5,500.
Patients at the state hospitals fall into two broad
categories: a) forensic commitments, who have been committed
by the courts as inmate transfers, mentally disordered
offenders, not guilty by reason of insanity, incompetent to
stand trial, or sexually violent predators; and b) civil
commitments, who are generally referred to the state hospitals
for treatment by the counties. Additionally, two psychiatric
programs located on the grounds of state prisons at Vacaville
and Salinas Valley have a combined inmate patient population
of less than 700. A third prison psychiatric program is
expected to be activated in Stockton in 2013.
In May 2006, the United States Department of Justice and the
State of California reached a settlement concerning civil
rights violations at four California state hospitals:
Metropolitan State Hospital, Napa State Hospital, Patton State
Hospital; and Atascadero State Hospital after a federal
investigation found that these hospitals failed to provide a
safe environment for patients, failed to provide complete
psychiatric assessments, and in some cases neglected to
regularly review a patient's needs before prescribing
medication. This settlement required extensive reforms over
five years to ensure that individuals in the hospitals are
adequately protected from harm and provided adequate services
to support their recovery and mental health. Pursuant to the
settlement, a court monitor was appointed to review the
compliance of each state hospital. Hospitals were ordered to
correct their treatment of patients by adopting a recovery
model that was therapeutic and rehabilitative. The settlement
SB 651
Page 9
also required biannual reviews of each hospital's progress in
changing its delivery of care. As of September 2012, all of
the state hospitals except for Napa had been released from
federal oversight.
However, due to the increased forensic population, there has
nonetheless been an increase in violence towards patients and
workers at the state hospitals. In 2010, the state Department
of Mental Health (which has since been eliminated, with
jurisdiction over state hospitals transferred to DSH) reported
there was an average of 23 incidents of violence per day
towards both patients and workers in state hospitals, with
almost three staff injuries per day. In 2009, Napa State
Hospital received national attention when an employee was
killed by a patient. The number of reported assaults at
Patton State Hospital increased from 340 in 2007 to 1,500 in
2010. Of the 1,500 reported assaults, 91 were submitted for
possible prosecution to the San Bernardino County District
Attorney, who rejected 81 of the cases.
4)SUPPORT . The sponsor of this bill, DRC, writes that people
with developmental and psychiatric disabilities are at a much
greater risk for sexual assault than their non-disabled peers,
and are often repeatedly victimized: 80% of women and nearly
40% of men with developmental disabilities will be sexually
assaulted at least once in their lifetime. According to the
sponsor, the risk of sexual assault is two to four times
higher in institutions than in the community. The sponsor
writes that this bill will increase the collection of forensic
evidence and victim statements to support criminal
prosecution, making it more likely that perpetrators of sexual
assault against people with disabilities will be reported and
punished. The Arc and United Cerebral Palsy of California, in
support, write that the serial rapes and other sexual assaults
of residents of developmental centers and the failure of DDS
to respond adequately are an outrage, and that this bill is a
major step toward long-overdue system reform.
5)RELATED LEGISLATION . AB 602 (Yamada) requires the Commission
on Peace Officer Standards and Training to establish a course
for law enforcement officers about how to interact with
individuals living within state mental hospitals or
developmental centers, and requires mandated reporters of
elder or dependent adult abuse to report alleged abuse or
neglect, including sexual abuse, within two hours of observing
SB 651
Page 10
or suspecting abuse in a state hospital or developmental
center. AB 602 is pending in the Senate Human Services
Committee.
6)PREVIOUS LEGISLATION .
a) SB 1051 (Liu and Emmerson), Chapter 660, Statutes of
2012, establishes a requirement for DDS and DSH to report
certain crimes involving death or major injury to the
state's designated protection and advocacy agency, requires
that mandated reporters within a developmental center
immediately report suspected abuse to OPS, and defined the
job requirements for the Director of OPS.
b) SB 1522 (Leno), Chapter 666, Statutes of 2012,
establishes 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.
c) AB 430, (Cardenas), Chapter 171, Statutes of 2001, the
health trailer bill for the 2001-02 State Budget, requires
developmental centers to immediately report all resident
deaths and serious injuries of unknown origin to the
appropriate law enforcement agency.
7)POLICY COMMENT . Each developmental center is licensed by DPH
as a SNF, an ICF/DD, and a general acute care hospital. This
bill provides that the failure to report an incident in a
developmental center is subject to a class B citation.
However, because class B citations only apply to long-term
health care facilities, not hospitals, DPH has requested an
amendment that would require DPH to impose civil penalties for
failure to report incidents that take place in the hospital
part of a developmental center. The committee may wish to
create a civil penalty for incidents that take place in the
hospital part of a developmental center. The committee may
wish to consider whether to create a penalty of $100 per day,
in line with penalties for hospitals that failure to report
adverse events to DPH, or a penalty of $100 to $2,000, in line
with the class B citation penalties established by this bill
for SNF and ICF/DD parts of facilities.
8)DOUBLE REFERRAL . This bill has been double referred. It
SB 651
Page 11
passed the Assembly Committee on Human Services with a vote of
7-0 on June 19, 2013.
REGISTERED SUPPORT / OPPOSITION :
Support
Disability Rights California (sponsor)
Alliance Supporting People with Intellectual and Developmental
Disabilities
Association of Regional Center Agencies
California Alliance for Retired Americans
California Association of Psychiatric Technicians
California Coalition Against Sexual Assault
California District Attorneys Association
East Bay Developmental Disabilities Legislative Coalition
National Association of Social Workers, California Chapter
North Los Angeles County Regional Center
Office of the State Council on Developmental Disabilities, Area
4 Board
The Arc and United Cerebral Palsy California Collaboration
Opposition
None on file.
Analysis Prepared by : Ben Russell / HEALTH / (916) 319-2097