BILL ANALYSIS                                                                                                                                                                                                    



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          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  :  








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          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  








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            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.









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          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),  








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            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  








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               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  








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               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  








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               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  








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            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  








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            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  








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            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