SB 648, as amended, Mendoza. Health and care facilities: referral agencies.
Existing law requires a referral agency to obtain a license from the State Department of Public Health in order to refer a person to any extended care facility, skilled nursing home, or intermediate care facility. Existing law exempts a local public agency performing referral services without cost from these provisions. Under existing law, a violation of these provisions is subject to a civil penalty and suspension or revocation of the license.
This bill would additionally require a referral agency to obtain a license from the State Department of Social Services in order to refer a person to a residential care facility for the
begin delete elderly andend delete
would prohibit an extended care facility, skilled nursing home, intermediate care facility, or residential care facility for the elderly from paying a commission or fee to a referral agency that is not licensed, as specified. The bill would prohibit a referral agency from holding any power of attorney or any other property of a person receiving referral services, or from disclosing any personal information of a person receiving services, unless authorized to do so. The bill would require a referral agency to begin delete provide a disclosure statement, as specified,end delete to each person receiving its services, and to retain, for 3 years, begin delete theend delete acknowledgment from the person being referred, or his or her conservator, guardian, authorized family member, or agent under a power of attorney, stating that the begin delete disclosure statement was received. The bill would state that failure to provide the disclosure statement or retain the acknowledgment, with the intent to mislead the public on the nature of the services provided, constitutes unfair competition and is subject to a civil penalty of up to $2,500.end delete The bill would also require referral agencies to maintain liability insurance in specified amounts.
Fiscal committee: yes.
State-mandated local program:
begin deleteno end delete.
The people of the State of California do enact as follows:
Section 1400 of the Health and Safety Code is
2amended to read:
(a) It is unlawful for any person, association, or
4corporation to establish, conduct, or maintain a referral agency or
5to refer any person for remuneration to any extended care facility,
6skilled nursing home, intermediate care facility, or residential care
7facility for the elderly, or a distinct part of a facility providing
8extended care, skilled nursing home care, or intermediate care,
9without first having obtained a written license as provided in this
10chapter from the State Public Health Officer or from an inspection
11service approved by the State Public Health Officer pursuant to
12Section 1257, from the State Department of Social Services, or
13from both, as appropriate.
14(b) It is unlawful for any person, association, or
15establish, conduct, or maintain a referral agency or to refer any
16person for remuneration to any person or agency outside a
17long-term health care facility, as defined in Section 1418, for
18professional services for which the long-term health care facility
19does not employ a qualified professional person to furnish a
20specific service, including, but not limited to, laboratory,
21diagnostic, or therapy services, unless the long-term health care
22facility complies with current federal and state laws regarding the
23provision of these services and all of the following conditions are
25(1) The services will be provided in accordance with
26professional standards applicable to the provision of these services
27in a long-term health care facility.
28(2) The long-term health care facility assumes responsibility
29for timeliness of the services.
30(3) Services are provided or obtained only when ordered by the
31attending physician and a notation is made in the resident’s medical
32chart reflecting that the service has been provided to the resident.
33(c) It is unlawful for any person, association, or corporation to
34establish, conduct, or maintain a referral agency or to refer any
35person for remuneration to any residential care facility for the
36elderly for professional services if that facility does not meet the
37licensing standards established in Chapter 3.2 (commencing with
38Section 1560). The referral agency may satisfy this requirement
P4 1by obtaining and relying on the licensing status information for a
2residential care facility for the elderly that is published on the
3Internet Web site of the State Department of Social Services.
4(d) It is unlawful for any extended care
facility, skilled nursing
5home, intermediate care facility, or residential care facility for the
6elderly, or a distinct part of a facility providing extended care,
7skilled nursing home care, or intermediate care to pay a
8commission or fee to a referral agency that does not have a written
9license as provided in this chapter from the State Public Health
10Officer or from an inspection service approved by the State Public
11Health Officer pursuant to Section 1257, from the State Department
12of Social Services, or from both, as appropriate.
Section 1401 of the Health and Safety Code is amended
As used in this chapter, “referral agency” means a private,
16profit or nonprofit agency that is engaged in the business of
17referring persons for remuneration to any extended care facility,
18skilled nursing home, intermediate care facility, or residential care
19facility for the elderly, or a distinct part of a facility providing
20extended care, skilled nursing home care, or intermediate care.
21“Referral agency” does not include any of the following:
22(a) A licensed residential care facility for the elderly that does
23either of the following:
24(1) Provides discounts or other remuneration to residents or
25their families for referring new or prospective clients.
26(2) Provides remuneration to staff for marketing or sales offers.
27(b) A resident who refers a new or prospective resident and
28receives a discount or other remuneration from a licensed
29residential care facility for the elderly.
30(c) A licensed residential care facility staff member who receives
31remuneration from the facility for sales or marketing efforts.
Section 1402 is added to the Health and Safety Code,
“Residential care facility for the elderly” has the same
35meaning as set forth in Section 1569.2.
Section 1404 of the Health and Safety Code is amended
No licensee under this chapter shall have a direct or
39indirect financial interest in any facility doing business with the
Section 1404.5 of the Health and Safety Code is
2amended to read:
A license application shall be submitted to either or
4both licensing departments, as appropriate, whenever any of the
5following circumstances occur:
6(a) Change of ownership of the referral agency.
7(b) Change of name of the referral agency.
8(c) Change of location of the referral agency.
Section 1405 of the Health and Safety Code is amended
begin delete(a)end delete begin delete end deleteAny person, partnership, firm, corporation, or
12association desiring to obtain a license to refer persons to extended
13care facilities, skilled nursing homes, or intermediate care facilities,
14or a distinct part of a facility providing extended care, skilled
15nursing home care, or intermediate care, shall file with the State
16Department of Public Health an application on forms furnished
17by the State Department of Public Health. Any person, partnership,
18firm, corporation, or association desiring to obtain a license to
19refer persons to residential care facilities for the elderly shall file
20with the State Department of Social Services an application on
21forms furnished by the State Department of Social Services. The
22applications shall contain all of the following:
23(a) Name of applicant, and if an individual, whether the applicant
24has attained the age of 18 years.
25(b) Name of referral agency.
26(c) The location of the referral agency.
27(d) The business or occupation engaged in by each applicant,
28and by each partner,
begin delete officerend delete and director, for at least two
29years immediately preceding the filing of the application. In
30addition, each such person shall submit a statement setting forth
31whether he or she has previously engaged in the operation of a
32referral agency, whether he or she has been involved in, or the
33subject of, a refusal or revocation of a referral agency license, and
34whether he or she has been convicted of a crime other than a minor
36(e) If the applicant is a corporation, the name and principal
37business address of each officer and director of the corporation;
38and for nonpublic corporations, the name and business address of
39each stockholder owning 10 percent or more of the stock and the
P6 1name and business address of any corporation member who has
2responsibility in the operation of the facility.
3(f) If the applicant is a partnership, the name and principal
4business address of each partner.
5(g) Evidence of the right to occupy the premises where the
6referral agency is to be located.
7(h) A copy of the partnership agreement or the Articles of
8Incorporation, if applicable.
9(i) A copy of the current organization chart.
10(j) A schedule of fees to be charged and collected by the referral
11agency, and a statement of the method by which each fee is to be
12computed or determined.
13(k) A declaration that the licensee will not have any financial
14interest in any health facility doing business with the referral
16(l) Evidence satisfactory to the licensing department that the
17applicant demonstrates reputable and responsible character and
18the capability to comply with this chapter.
Section 1407 of the Health and Safety Code is amended
(a) Any licensee desiring to voluntarily surrender his
22or her license for cancellation or temporary suspension shall notify
23the licensing department in writing as soon as possible and, in all
24cases, at least 30 days prior to the effective date of cancellation or
25temporary suspension of the license.
26(b) Any license placed in temporary suspension pursuant to this
27section may be reinstated by the licensing department within 12
28months of the date of the voluntary suspension on receipt of an
29application and evidence showing compliance with licensing
Section 1408 of the Health and Safety Code is amended
(a) Upon verification of compliance with this chapter
34and with the approval of the licensing department, the licensing
35department shall issue the license to the applicant.
36(b) When licensing referral agencies that provide referrals to
37residential care facilities for the elderly, the State Department of
38Social Services is not required to conduct an onsite licensing
39inspection as a condition of verifying compliance with this chapter.
P7 1(c) As a condition of verifying compliance with this chapter,
2the licensing department may require an applicant to submit a copy
3or example of the
begin delete disclosure statementend delete required by
5(d) If the applicant is not in compliance with this chapter, the
6licensing department shall deny the applicant a license.
7Immediately upon the denial of any license, the licensing
8department shall notify the applicant in writing. Within 20 days
9of receipt of the notice, the applicant may present his or her written
10petition for a hearing to the licensing department. Proceedings
11conducted by the State Department of Public Health shall be
12conducted in accordance with Section 100171.
Section 1409.3 of the Health and Safety Code is
17amended to read:
(a) The licensee shall notify either or both licensing
19departments, as appropriate, within 10 days in writing when a
20change of stockholder owning 10 percent or more of the nonpublic
21corporate stock occurs. The writing shall include the name and
22principal mailing addresses of the new stockholder.
23(b) When a change of agency manager occurs, either or both
24licensing departments, as appropriate, shall be notified in writing
25within 10 days by the licensee. The notification shall include the
26name of the new agency manager.
27(c) Each licensee shall notify either or both licensing
28departments, as appropriate, within 10 days in writing of any
29change of the mailing address of the licensee. The writing shall
30include the new mailing address of the licensee.
31(d) When a change in the principal officer of a corporate
32licensee, chairperson, president, or general manager,
begin delete occursend delete either
33or both licensing departments, as appropriate, shall be notified
34within 10 days in writing by the licensee. The writing shall include
35the name and principal business address of the officer.
Section 1409.4 is added to the Health and Safety
37Code, to read:
(a) Before referring a person to any facility, a licensee
begin delete provide the person with a disclosure statement containing all
40of the following:end delete
P8 1(1) Whether the licensee has an agreement or contract with the
2facility to which the person is being referred.
begin deleteThat end deletea
commission or fee will be received by the
4licensee from the facility as a result of the
begin delete referral, if applicable.end delete
6(3) Any gift or exchange of monetary value between the facility
7and the licensee that is in addition to, or in lieu of, a commission
9(4) Any fee charged to the person or persons by the licensee.
10The notice shall include a description of the services being rendered
11for that fee and the licensee’s refund policy.
12(5) The licensee’s contact information, including address and
14policy may be provided as an Internet Web site link consistent
15 with provisions set forth in Section 22575 of the Business and
17(6) The date of the licensee’s most recent tour or visit to the
18facility and, as appropriate, a hyperlink to, or copy of, the most
19recent evaluation report for a residential care facility for the elderly
20to which the person is being referred, prepared pursuant to Section
211569.33 and published by the State Department of Social Services.
22(7) Information regarding the type of facility and the services
23offered by the facility.
25 The contact information, including address and telephone
26number, of the State Department of Social Services or State
27Department of Public Health, as appropriate, and the contact
28information for filing consumer complaints, including contact
29information for the local long-term care ombudsman. If the
30disclosure statement is provided electronically, the contact
31information for each department and the local long-term care
32ombudsman may be provided as a hyperlink.
6 (1) The
begin delete disclosure statementend delete shall be dated and
7shall contain, in addition to the requirements of
begin delete subdivision (a),end delete
8 the name of the person being referred.
9(2) If the
begin delete disclosure isend delete provided in written form,
begin delete itend delete shall be printed in 16-point bold type.
11(3) If the
begin delete disclosure statement isend delete provided
begin delete itend delete shall be
13 consistent with provisions set forth in Title 2.5 (commencing with
14Section 1633.1) of Part 2 of Division 3 of the Civil Code, and shall
15be displayed on a secured Web page in a larger type than the
18 The licensee shall
begin delete provide the disclosure statementend delete pursuant to begin delete subdivision (a)end delete in the same language in which the licensee negotiates any
21referral services with the person receiving services.
begin delete disclosure statementend delete shall be signed or
24otherwise acknowledged by the person being referred, or his or
25her conservator, guardian, authorized family member, or agent
26under a power of attorney, stating that the
begin delete disclosure statementend delete
27 required by this section
begin delete wasend delete received. The
28acknowledgment shall be
begin delete executed with one of the following:end delete
30(1) The signature of the person being referred, or his or her
31conservator, guardian, authorized family member, or agent under
32a power of attorney on
begin delete the exact disclosure statement.end delete
34(2) An electronic signature that is consistent with standards set
35forth in Title 2.5 (commencing with Section 1633.1) of Part 2 of
36Division 3 of the Civil Code and includes the date, time, and
37Internet provider address and displays the
begin delete exact disclosure
38statement document.end delete
P10 1(3) A faxed confirmation that includes the date, time, and fax
2number and displays the
begin delete exact disclosure statement document.end delete
4(4) A telephonic, oral acknowledgment of the person being
5referred, or his or her conservator, guardian, authorized family
6member, or agent under power of attorney, which shall be recorded,
7with that person’s consent, consistent with Sections 632 and 632.7
8of the Penal Code. This paragraph does not authorize an inperson,
10(e) The acknowledgment required by this sectionend delete
11 shall be
12retained for a period of no less than three years.
14 (1) If the
begin delete disclosure statement,end delete or any other
15 referral-related document,
begin delete isend delete provided electronically, the
16licensee shall provide a written copy, in 16-point bold type, to the
17person being referred, or his or her conservator, guardian,
18authorized family member, or agent under power of attorney
19following any referral. This written copy may be provided by fax,
20email, or other means of electronic communication, if appropriate.
21(2) Recorded telephonic acknowledgments shall, upon request,
22be provided in an easily accessible format to the person being
23referred or the licensing department within five days of the request.
24(g) Any violation of this section with the intent to directly or
25indirectly mislead the public on the nature of services provided by
26the referral agency will constitute unfair competition which
27includes unlawful, unfair, or fraudulent business acts or practices
28and unfair, deceptive, untrue, or misleading advertising. Any person
29or entity that engages in unfair competition shall be liable for a
30civil penalty not to exceed two thousand five hundred dollars
31($2,500) for each violation.
Section 1409.6 is added to the Health and Safety
39Code, to read:
(a) It is unlawful for a licensee to share any personal
2information, including, but not limited to, the name, address, age,
3gender, or medical information of the person receiving services
4from the licensee, with any unauthorized person or third-party
5affiliate of the licensee, unless authorized pursuant to subdivision
begin deleteBefore making a referral end deleteto any facility or begin delete facilities,end delete the person
9being referred, or his or her conservator, guardian, family member,
10or agent under power of attorney,
begin delete may authorizeend delete the
11licensee to share
begin delete his or herend delete personal
12information, as well as the name and a description of the care or
13services needed by the individual being referred, with a facility or
14facilities for purposes of the referral. The personal information, or
15other information shared, shall be limited to only that information
16which is necessary to complete the referral process. The
17authorization shall be obtained in either of the following ways:
18(1) As a separate authorization form that clearly discloses
begin delete that, the individual is consenting
19by executing an acknowledgment in the manner described in
20subdivision (d) of Section 1409.4,end delete
21to the disclosure of his or her personal information to a facility or
22facilities for which they are being referred. This
begin delete acknowledgmentend delete
23 shall include the name and location of the
24facility or facilities that will receive the personal
begin delete information and
25the format in which the personal information will be shared.end delete
28(2) As part of the
begin delete disclosure statement required by Section is consenting to the
291409.4 if it clearly indicates that the individualend delete
34referral agency’s disclosure of his or her personal information to
35a facility or facilities for which
begin delete herend delete or she is being referred. The
begin delete authorization shall includeend delete the name and location begin delete informationend delete of the facility
38or facilities that will receive the personal
begin delete information and the
39format in which the personal information will be shared.end delete
P12 1(c) The licensee shall not share the contact information of an
2individual who has not provided his or her authorization pursuant
3to subdivision (b).
Section 1409.7 is added to the Health and Safety
6Code, to read:
It is unlawful for a licensee to hold any power of
8attorney for a person receiving placement referral services from
9that licensee, or to receive or hold a client’s property in any
Section 1409.8 is added to the Health and Safety
13Code, to read:
On and after July 1,
begin delete 2016,end delete all persons,
15associations, or corporations licensed pursuant to this chapter shall
16maintain liability insurance coverage in an amount of at least one
17million dollars ($1,000,000) per person occurrence and three
18million dollars ($3,000,000) in the total annual aggregate, for
19negligent acts or omissions by the licensee.
Section 1410 of the Health and Safety Code is
27amended to read:
The licensing department may suspend or revoke a
29license issued under this chapter for violation of any provisions
30of this chapter or rules and regulations promulgated hereunder. In
31addition, the licensing department shall assess a civil penalty in
32the amount of fees received by a licensee as a result of a violation
33of any provisions of this chapter or rules and regulations
34promulgated hereunder. Proceedings to suspend or revoke a license
35conducted by the State Department of Public Health shall be
36conducted pursuant to Section 100171.
(a) Any person who has assumed full or intermittent
40responsibility for the care or custody of an elder or dependent
P13 1adult, whether or not he or she receives compensation, including
2administrators, supervisors, and any licensed staff of a public or
3private facility that provides care or services for elder or dependent
4adults, or any elder or dependent adult care custodian, health
5practitioner, clergy member, or employee of a county adult
6protective services agency or a local law enforcement agency, is
7a mandated reporter.
23(b) (1) Any mandated reporter who, in his or her professional
24capacity, or within the scope of his or her employment, has
25observed or has knowledge of an incident that reasonably appears
26to be physical abuse, as defined in Section 15610.63, abandonment,
27abduction, isolation, financial abuse, or neglect, or is told by an
28elder or dependent adult that he or she has experienced behavior,
29including an act or omission, constituting physical abuse, as defined
30in Section 15610.63, abandonment, abduction, isolation, financial
31abuse, or neglect, or reasonably suspects that abuse, shall report
32the known or suspected instance of abuse by telephone or through
33a confidential Internet reporting tool, as authorized by Section
3415658, immediately or as soon as practicably possible. If reported
35by telephone, a written report shall be sent, or an Internet report
36shall be made through the confidential Internet reporting tool
37established in Section 15658, within two working days.
38(A) If the suspected or alleged abuse is physical abuse, as
39defined in Section 15610.63, and the abuse occurred in a long-term
P14 1care facility, except a state mental health hospital or a state
2developmental center, the following shall occur:
3(i) If the
suspected abuse results in serious bodily injury, a
4telephone report shall be made to the local law enforcement agency
5immediately, but also no later than within two hours of the
6mandated reporter observing, obtaining knowledge of, or
7suspecting the physical abuse, and a written report shall be made
8to the local ombudsman, the corresponding licensing agency, and
9the local law enforcement agency within two hours of the mandated
10reporter observing, obtaining knowledge of, or suspecting the
12(ii) If the suspected abuse does not result in serious bodily injury,
13a telephone report shall be made to the local law enforcement
14agency within 24 hours of the mandated reporter observing,
15obtaining knowledge of, or suspecting the physical abuse, and a
16written report shall be made to the local ombudsman, the
17corresponding licensing agency, and the local law enforcement
18agency within 24 hours of the mandated reporter observing,
19obtaining knowledge of, or suspecting the physical abuse.
20(iii) When the suspected abuse is allegedly caused by a resident
21with a physician’s diagnosis of dementia, and there is no serious
22bodily injury, as reasonably determined by the mandated reporter,
23drawing upon his or her training or experience, the reporter shall
24report to the local ombudsman or law enforcement agency by
25telephone, immediately or as soon as practicably possible, and by
26written report, within 24 hours.
27(iv) When applicable, reports made pursuant to clauses (i) and
28(ii) shall be deemed to satisfy the reporting requirements of the
29federal Elder Justice Act of 2009, as set out in Subtitle H of the
30federal Patient Protection and Affordable Care Act (Public Law
31111-148), Section 1418.91 of the Health and Safety Code, and
32Section 72541 of Title 22 of California Code of Regulations. When
33a local law enforcement agency receives an initial report of
34suspected abuse in a long-term care facility pursuant to this
35subparagraph, the local law enforcement agency may coordinate
36efforts with the local ombudsman to provide the most immediate
37and appropriate response warranted to investigate the mandated
38report. The local ombudsman and local law enforcement agencies
39may collaborate to develop protocols to implement this
P15 1(B) Notwithstanding the rulemaking provisions of Chapter 3.5
2(commencing with Section 11340) of Part 1 of Division 3 of Title
32 of the Government Code, or any other law, the department may
4implement subparagraph (A), in whole or in part, by means of
5all-county letters, provider bulletins, or other similar instructions
6without taking regulatory action.
7(C) If the suspected or alleged abuse is abuse other than physical
8abuse, and the abuse occurred in a long-term care facility, except
9a state mental health hospital or a state developmental center, a
10telephone report and a written report shall be made to the local
11ombudsman or the local law enforcement agency.
12(D) With regard to abuse reported pursuant to subparagraph
13(C), the local ombudsman and the local law enforcement agency
14shall, as soon as practicable, except in the case of an emergency
15or pursuant to a report required to be made pursuant to clause (v),
16in which case these actions shall be taken immediately, do all of
18(i) Report to the State Department of Public Health any case of
19known or suspected abuse occurring in a long-term health care
20facility, as defined in subdivision (a) of Section 1418 of the Health
21and Safety Code.
22(ii) Report to the State Department of Social Services any case
23of known or suspected abuse occurring in a residential care facility
24for the elderly, as defined in Section 1569.2 of the Health and
25Safety Code, or in an adult day program, as defined in paragraph
26(2) of subdivision (a) of Section 1502 of the Health and Safety
28(iii) Report to the State Department of Public Health and the
29California Department of Aging any case of known or suspected
30abuse occurring in an adult day health care center, as defined in
31subdivision (b) of Section 1570.7 of the Health and Safety Code.
32(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse
33any case of known or suspected criminal activity.
34(v) Report all cases of known or suspected physical abuse and
35financial abuse to the local district attorney’s office in the county
36where the abuse occurred.
37(E) (i) If the suspected or alleged abuse or neglect occurred in
38a state mental hospital or a state developmental center, and the
39suspected or alleged abuse or neglect resulted in any of the
40following incidents, a report shall be made immediately, but no
P16 1later than within two hours of the mandated reporter observing,
2obtaining knowledge of, or suspecting abuse, to designated
3investigators of the State Department of State Hospitals or the
4State Department of Developmental Services, and also to the local
5law enforcement agency:
6(I) A death.
7(II) A sexual assault, as defined in Section 15610.63.
8(III) An assault with a deadly weapon, as described in Section
9245 of the Penal Code, by a nonresident of the state mental hospital
10or state developmental center.
11(IV) An assault with force likely to produce great bodily injury,
12as described in Section 245 of the Penal Code.
13(V) An injury to the genitals when the cause of the injury is
15(VI) A broken bone when the cause of the break is
17(ii) All other reports of suspected or alleged abuse or neglect
18that occurred in a state mental hospital or a state developmental
19center shall be made immediately, but no later than within two
20hours of the mandated reporter observing, obtaining knowledge
21of, or suspecting abuse, to designated investigators of the State
22Department of State Hospitals or the State Department of
23Developmental Services, or to the local law enforcement agency.
24(iii) When a local law enforcement agency receives an initial
25report of suspected or alleged abuse or neglect in a state mental
26hospital or a state developmental center pursuant to clause (i), the
27local law enforcement agency shall coordinate efforts with the
28designated investigators of the State Department of State Hospitals
29or the State Department of Developmental Services to provide the
30most immediate and appropriate response warranted to investigate
31the mandated report. The designated investigators of the State
32Department of State Hospitals or the State Department of
33Developmental Services and local law enforcement agencies may
34collaborate to develop protocols to implement this clause.
35(iv) Except in an emergency, the local law enforcement agency
36shall, as soon as practicable, report any case of known or suspected
37criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
38(v) Notwithstanding any other law, a mandated reporter who is
39required to report pursuant to Section 4427.5 shall not be required
40to report under clause (i).
P17 1(F) If the abuse has occurred in any place other than a long-term
2care facility, a state mental hospital, or a state developmental
3center, the report shall be made to the adult protective services
4agency or the local law enforcement agency.
5(2) (A) A mandated reporter who is a clergy member who
6acquires knowledge or reasonable suspicion of elder or dependent
7adult abuse during a penitential communication is not subject to
8paragraph (1). For purposes of this subdivision, “penitential
9communication” means a communication that is intended to be in
10confidence, including, but not limited to, a sacramental confession
11made to a clergy member who, in the course of the discipline or
12practice of his or her church, denomination, or organization is
13authorized or accustomed to hear those communications and under
14the discipline tenets, customs, or practices of his or her church,
15denomination, or organization, has a duty to keep those
17(B) This subdivision shall not be construed to modify or limit
18a clergy member’s duty to report known or suspected elder and
19dependent adult abuse if he or she is acting in the capacity of a
20care custodian, health practitioner, or employee of an adult
21protective services agency.
22(C) Notwithstanding any other provision in this section, a clergy
23member who is not regularly employed on either a full-time or
24part-time basis in a long-term care facility or does not have care
25or custody of an elder or dependent adult shall not be responsible
26for reporting abuse or neglect that is not reasonably observable or
27discernible to a reasonably prudent person having no specialized
28training or experience in elder or dependent care.
29(3) (A) A mandated reporter who is a physician and surgeon,
30a registered nurse, or a psychotherapist, as defined in Section 1010
31of the Evidence Code, shall not be required to report, pursuant to
32paragraph (1), an incident if all of the following conditions exist:
33(i) The mandated reporter has been told by an elder or dependent
34adult that he or she has experienced behavior constituting physical
35abuse, as defined in Section 15610.63, abandonment, abduction,
36isolation, financial abuse, or neglect.
37(ii) The mandated reporter is not aware of any independent
38evidence that corroborates the statement that the abuse has
P18 1(iii) The elder or dependent adult has been diagnosed with a
2mental illness or dementia, or is the subject of a court-ordered
3conservatorship because of a mental illness or dementia.
4(iv) In the exercise of clinical judgment, the physician and
5surgeon, the registered nurse, or the psychotherapist, as defined
6in Section 1010 of the Evidence Code, reasonably believes that
7the abuse did not occur.
8(B) This paragraph shall not be construed to impose upon
9mandated reporters a duty to investigate a known or suspected
10incident of abuse and shall not be construed to lessen or restrict
11any existing duty of mandated reporters.
12(4) (A) In a long-term care facility, a mandated reporter shall
13not be required to report as a suspected incident of abuse, as defined
14in Section 15610.07, an incident if all of the following conditions
16(i) The mandated reporter is aware that there is a proper plan
18(ii) The mandated reporter is aware that the plan of care was
19properly provided or executed.
20(iii) A physical, mental, or medical injury occurred as a result
21of care provided pursuant to clause (i) or (ii).
22(iv) The mandated reporter reasonably believes that the injury
23was not the result of abuse.
24(B) This paragraph shall not be construed to require a mandated
25reporter to seek, nor to preclude a mandated reporter from seeking,
26information regarding a known or suspected incident of abuse prior
27to reporting. This paragraph shall apply only to those categories
28of mandated reporters that the State Department of Public Health
29determines, upon approval by the Bureau of Medi-Cal Fraud and
30Elder Abuse and the state long-term care ombudsman, have access
31to plans of care and have the training and experience necessary to
32determine whether the conditions specified in this section have
34(c) (1) Any mandated reporter who has knowledge, or
35reasonably suspects, that types of elder or dependent adult abuse
36for which reports are not mandated have been inflicted upon an
37elder or dependent adult, or that his or her emotional well-being
38is endangered in any other way, may report the known or suspected
39instance of abuse.
P19 1(2) If the suspected or alleged abuse occurred in a long-term
2care facility other than a state mental health hospital or a state
3developmental center, the report may be made to the long-term
4care ombudsman program. Except in an emergency, the local
5ombudsman shall report any case of known or suspected abuse to
6the State Department of Public Health and any case of known or
7suspected criminal activity to the Bureau of Medi-Cal Fraud and
8Elder Abuse, as soon as is practicable.
9(3) If the suspected or alleged abuse occurred in a state mental
10health hospital or a state developmental center, the report may be
11made to the designated investigator of the State Department of
12State Hospitals or the State Department of Developmental Services
13or to a local law enforcement agency. Except in an emergency,
14the local law enforcement agency shall report any case of known
15or suspected criminal activity to the Bureau of Medi-Cal Fraud
16and Elder Abuse, as soon as is practicable.
17(4) If the suspected or alleged abuse occurred in a place other
18than a place described in paragraph (2) or (3), the report may be
19made to the county adult protective services agency.
20(5) If the conduct involves criminal activity not covered in
21subdivision (b), it may be immediately reported to the appropriate
22law enforcement agency.
23(d) If two or more mandated reporters are present and jointly
24have knowledge or reasonably suspect that types of abuse of an
25elder or a dependent adult for which a report is or is not mandated
26have occurred, and there is agreement among them, the telephone
27report or Internet report, as authorized by Section 15658, may be
28made by a member of the team selected by mutual agreement, and
29a single report may be made and signed by the selected member
30of the reporting team. Any member who has knowledge that the
31member designated to report has failed to do so shall thereafter
32make the report.
33(e) A telephone report or Internet report, as authorized by
34Section 15658, of a known or suspected instance of elder or
35dependent adult abuse shall include, if known, the name of the
36person making the report, the name and age of the elder or
37dependent adult, the present location of the elder or dependent
38adult, the names and addresses of family members or any other
39adult responsible for the elder’s or dependent adult’s care, the
40nature and extent of the elder’s or dependent adult’s condition, the
P20 1date of the incident, and any other information, including
2information that led that person to suspect elder or dependent adult
3abuse, as requested by the agency receiving the report.
4(f) The reporting duties under this section are individual, and
5no supervisor or administrator shall impede or inhibit the reporting
6duties, and no person making the report shall be subject to any
7sanction for making the report. However, internal procedures to
8facilitate reporting, ensure confidentiality, and apprise supervisors
9and administrators of reports may be established, provided they
10are not inconsistent with this chapter.
11(g) (1) Whenever this section requires a county adult protective
12services agency to report to a law enforcement agency, the law
13enforcement agency shall, immediately upon request, provide a
14copy of its investigative report concerning the reported matter to
15that county adult protective services agency.
16(2) Whenever this section requires a law enforcement agency
17to report to a county adult protective services agency, the county
18adult protective services agency shall, immediately upon request,
19provide to that law enforcement agency a copy of its investigative
20report concerning the reported matter.
21(3) The requirement to disclose investigative reports pursuant
22to this subdivision shall not include the disclosure of social services
23records or case files that are confidential, nor shall this subdivision
24be construed to allow disclosure of any reports or records if the
25disclosure would be prohibited by any other provision of state or
27(h) Failure to report, or impeding or inhibiting a report of,
28physical abuse, as defined in Section 15610.63, abandonment,
29abduction, isolation, financial abuse, or neglect of an elder or
30dependent adult, in violation of this section, is a misdemeanor,
31punishable by not more than six months in the county jail, by a
32fine of not more than one thousand dollars ($1,000), or by both
33that fine and imprisonment. Any mandated reporter who willfully
34fails to report, or impedes or inhibits a report of, physical abuse,
35as defined in Section 15610.63, abandonment, abduction, isolation,
36financial abuse, or neglect of an elder or dependent adult, in
37violation of this section, if that abuse results in death or great bodily
38injury, shall be punished by not more than one year in a county
39jail, by a fine of not more than five thousand dollars ($5,000), or
40by both that fine and imprisonment. If a mandated reporter
P21 1intentionally conceals his or her failure to report an incident known
2by the mandated reporter to be abuse or severe neglect under this
3section, the failure to report is a continuing offense until a law
4enforcement agency specified in paragraph (1) of subdivision (b)
5of Section 15630 discovers the offense.
6(i) For purposes of this section, “dependent adult” shall have
7the same meaning as in Section 15610.23.