BILL ANALYSIS Ó SB 651 Page 1 SENATE THIRD READING SB 651 (Pavley and Leno) As Amended August 6, 2013 Majority vote SENATE VOTE :37-0 HUMAN SERVICES 7-0 HEALTH 19-0 ----------------------------------------------------------------- |Ayes:|Stone, Maienschein, |Ayes:|Pan, Logue, Ammiano, | | |Ammiano, | |Atkins, Bonilla, Bonta, | | |Ian Calderon, Garcia, | |Chesbro, Gomez, Roger | | |Grove, Hall | |Hernández, Lowenthal, | | | | |Maienschein, Mansoor, | | | | |Mitchell, Nazarian, | | | | |Nestande, V. Manuel | | | | |Pérez, Wagner, | | | | |Wieckowski, Wilk | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- APPROPRIATIONS 17-0 ----------------------------------------------------------------- |Ayes:|Gatto, Harkey, Bigelow, | | | | |Bocanegra, Bradford, Ian | | | | |Calderon, Campos, | | | | |Donnelly, Eggman, Gomez, | | | | |Hall, Holden, Linder, | | | | |Pan, Quirk, Wagner, Weber | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- SUMMARY : Establishes requirements for sexual assault examinations of residents in state hospitals and developmental centers, and establishes new penalties for failure of developmental centers to report specified incidents. Specifically, this bill : 1)Authorizes the Department of Public Health to assess a civil penalty against the licensee of a general acute care hospital or an acute psychiatric hospital that is part of a developmental center of up to $100 for each day the licensee SB 651 Page 2 fails to report an incident involving major injury or death of a resident, as specified, to law enforcement. 2)Deems a developmental center's failure to report certain incidents involving major injury or death of a resident in a distinct part long-term health care facility, as defined, a class B violation, as specified. 3)Requires designated investigators of state hospitals to request 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 reasonably suspected to be a victim of sexual assault, as specified, and requires the person performing the examination to obtain consent and notify the local law enforcement agency that has jurisdiction over the state hospital. 4)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. 5)Requires designated investigators of developmental centers to request 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 reasonably suspected to be a victim of sexual assault, as specified, and requires the person performing the examination to obtain consent and notify the local law enforcement agency that has jurisdiction over the developmental center. 6)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. SB 651 Page 3 FISCAL EFFECT : According to the Assembly Appropriations Committee, costs associated with this legislation should be minor and absorbable within existing Department of Developmental Services (DDS) and Department of State Hospitals (DSH) resources. 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 penalties for a developmental center's failure to report specified crimes, including sexual assault, to law enforcement. Penalties were 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 Lanterman 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. 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 1,400 regional center consumers reside at one of California's four developmental centers (Lanterman, Porterville, Sonoma, and Fairview) and one SB 651 Page 4 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 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) received its first patients in July of this year. 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. 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 SB 651 Page 5 times from 2009 to 2012, but none of those residents were sent out for an independent examination by a trained medical 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 and Emmerson), Chapter 660, and SB 1522 (Leno), Chapter 666, 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 SB 651 Page 6 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 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 (Health and Safety Code (HSC) Section 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. As proposed, this bill will 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 is reasonably suspected to be a 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 steps the facilities can take to prevent future occurrences. Analysis Prepared by : Myesha Jackson / HUM. S. / (916) 319-2089 FN: 0001813 SB 651 Page 7