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