BILL NUMBER: SB 1644 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Romero and Escutia
(Coauthor: Assembly Member Laird)
FEBRUARY 20, 2004
An act to add Section 1418.92 to the Health and Safety Code, and
to amend Sections 15630 and 15631 of the Welfare and Institutions
Code, relating to long-term health care.
LEGISLATIVE COUNSEL'S DIGEST
SB 1644, as introduced, Romero. Long-term health care: deaths of
residents: reporting requirements.
(1) The Long-Term Care, Health, Safety, and Security Act of 1973
establishes a citation system for the imposition of civil sanctions
against long-term health care facilities in violation of federal and
state laws and regulations relating to patient care. That act also
establishes an inspection and reporting system to ensure that
long-term health care facilities are in compliance with state
statutes and regulations pertaining to patient care, and a
provisional licensing mechanism to ensure that full-term licenses are
issued only to those long-term health care facilities that meet
state standards relating to patient care. A violation of the act is
a misdemeanor.
This bill would require a long-term health care facility to report
the death of any resident of the facility to the county medical
examiner or coroner.
(2) The Elder Abuse and Dependent Adult Civil Protection Act
defines mandated reporters and establishes various procedures for the
reporting, investigation, and prosecution of elder and dependent
adult abuse. The act requires a mandated reporter, as defined, to
report known or suspected physical abuse, abandonment, abduction,
isolation, financial abuse, or neglect of elder or dependent adults
in long-term health care facilities.
This bill, in addition, would require a mandated reporter to
report to the county coroner or medical examiner a death of a
resident of a long-term health care facility if the resident was the
subject of a report described above.
This bill would also authorize persons who are not mandated
reporters to report to the county medical examiner or coroner
instances of abuse and death of residents in long-term health care
facilities, and would require the medical examiner or coroner to
acknowledge receipt of the report.
By increasing the duties of county medical examiners and coroners,
and by expanding the scope of an existing crime, this bill would
impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1418.92 is added to the Health and Safety Code,
to read:
1418.92. (a) A long-term health care facility shall report the
death of any resident of the facility to the medical examiner or
coroner of the county in which the death occurred.
(b) The report required by subdivision (a) shall be made by the
facility immediately upon the death of the resident, or within 24
hours of the death and prior to any changes to the body by the
facility, and before the facility discharges the body to a funeral
home or to any other entity or facility.
(c) A failure to comply with this section shall be a class "B"
violation.
SEC. 2. Section 15630 of the Welfare and Institutions Code is
amended to read:
15630. (a) Any person who has assumed full or intermittent
responsibility for care or custody of an elder or dependent adult,
whether or not that person receives compensation, including
administrators, supervisors, and any licensed staff of a public or
private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian,
health practitioner, clergy member, or employee of a county adult
protective services agency or a local law enforcement agency, is a
mandated reporter.
(b) (1) Any mandated reporter who, in his or her professional
capacity, or within the scope of his or her employment, has observed
or has knowledge of an incident that reasonably appears to be
physical abuse, abandonment, abduction, isolation, financial abuse,
or neglect, or is told by an elder or dependent adult that he or she
has experienced behavior, including an act or omission, constituting
physical abuse, abandonment, abduction, isolation, financial abuse,
or neglect, or reasonably suspects that abuse, shall report the known
or suspected instance of abuse by telephone immediately or as soon
as practicably possible, and by written report sent within two
working days, as follows:
(A) If the abuse has occurred in a long-term care facility, except
a state mental health hospital or a state developmental center, the
report shall be made to the local ombudsman or the local law
enforcement agency.
Except in an emergency, the local ombudsman and the local law
enforcement agency shall, as soon as practicable, do all of the
following:
(i) Report to the State Department of Health Services any case of
known or suspected abuse occurring in a long-term health care
facility, as defined in subdivision (a) of Section 1418 of the Health
and Safety Code.
(ii) Report to the State Department of Social Services any case of
known or suspected abuse occurring in a residential care facility
for the elderly, as defined in Section 1569.2 of the Health and
Safety Code, or in an adult day care facility, as defined in
paragraph (2) of subdivision (a) of Section 1502.
(iii) Report to the State Department of Health Services and the
California Department of Aging any case of known or suspected abuse
occurring in an adult day health care center, as defined in
subdivision (b) of Section 1570.7 of the Health and Safety Code.
(iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any
case of known or suspected criminal activity.
(B) If the suspected or alleged abuse occurred in a state mental
hospital or a state developmental center, the report shall be made to
designated investigators of the State Department of Mental Health or
the State Department of Developmental Services, or to the local law
enforcement agency.
Except in an emergency, the local law enforcement agency shall, as
soon as practicable, report any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse.
(C) If the abuse has occurred any place other than one described
in subparagraph (A), the report shall be made to the adult protective
services agency or the local law enforcement agency.
(2) A mandated reporter, who is required to report an
incident pursuant to paragraph (1) that involves a resident in a
long-term health care facility, as defined in Section 1418 of the
Health and Safety Code, and the resident who is the subject of the
report dies, shall immediately upon the resident's death, or within
24 hours of learning of the death if the mandated reporter is not
aware of the death when it occurs, report the death and the incident
to the medical examiner or coroner of the county in which the death
occurred.
(3) (A) A mandated reporter who is a clergy member who
acquires knowledge or reasonable suspicion of elder or dependent
adult abuse during a penitential communication is not subject to
paragraph (1). For purposes of this subdivision, "penitential
communication" means a communication that is intended to be in
confidence, including, but not limited to, a sacramental confession
made to a clergy member who, in the course of the discipline or
practice of his or her church, denomination, or organization is
authorized or accustomed to hear those communications and under the
discipline tenets, customs, or practices of his or her church,
denomination, or organization, has a duty to keep those
communications secret.
(B) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected elder and
dependent adult abuse when he or she is acting in the capacity of a
care custodian, health practitioner, or employee of an adult
protective agency.
(C) Notwithstanding any other provision in this section, a clergy
member who is not regularly employed on either a full-time or
part-time basis in a long-term care facility or does not have care or
custody of an elder or dependent adult shall not be responsible for
reporting abuse or neglect that is not reasonably observable or
discernible to a reasonably prudent person having no specialized
training or experience in elder or dependent care.
(3)
(4) (A) A mandated reporter who is a physician and surgeon,
a registered nurse, or a psychotherapist, as defined in Section 1010
of the Evidence Code, shall not be required to report, pursuant to
paragraph (1), an incident where all of the following conditions
exist:
(i) The mandated reporter has been told by an elder or dependent
adult that he or she has experienced behavior constituting physical
abuse, abandonment, abduction, isolation, financial abuse, or
neglect.
(ii) The mandated reporter is not aware of any independent
evidence that corroborates the statement that the abuse has occurred.
(iii) The elder or dependent adult has been diagnosed with a
mental illness or dementia, or is the subject of a court-ordered
conservatorship because of a mental illness or dementia.
(iv) In the exercise of clinical judgment, the physician and
surgeon, the registered nurse, or the psychotherapist, as defined in
Section 1010 of the Evidence Code, reasonably believes that the abuse
did not occur.
(B) This paragraph shall not be construed to impose upon mandated
reporters a duty to investigate a known or suspected incident of
abuse and shall not be construed to lessen or restrict any existing
duty of mandated reporters.
(4)
(5) (A) In a long-term care facility, a mandated reporter
shall not be required to report as a suspected incident of abuse, as
defined in Section 15610.07, an incident where all of the following
conditions exist:
(i) The mandated reporter is aware that there is a proper plan of
care.
(ii) The mandated reporter is aware that the plan of care was
properly provided or executed.
(iii) A physical, mental, or medical injury occurred as a result
of care provided pursuant to clause (i) or (ii).
(iv) The mandated reporter reasonably believes that the injury was
not the result of abuse.
(B) This paragraph shall not be construed to require a mandated
reporter to seek, nor to preclude a mandated reporter from seeking,
information regarding a known or suspected incident of abuse prior to
reporting. This paragraph shall apply only to those categories of
mandated reporters that the State Department of Health Services
determines, upon approval by the Bureau of Medi-Cal Fraud and Elder
Abuse and the state long-term care ombudsman, have access to plans of
care and have the training and experience necessary to determine
whether the conditions specified in this section have been met.
(c) (1) Any mandated reporter who has knowledge, or reasonably
suspects, that types of elder or dependent adult abuse for which
reports are not mandated have been inflicted upon an elder or
dependent adult, or that his or her emotional well-being is
endangered in any other way, may report the known or suspected
instance of abuse.
(2) If the suspected or alleged abuse occurred in a long-term care
facility other than a state mental health hospital or a state
developmental center, the report may be made to the long-term care
ombudsman program. Except in an emergency, the local ombudsman shall
report any case of known or suspected abuse to the State Department
of Health Services and any case of known or suspected criminal
activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as
is practicable.
(3) If the suspected or alleged abuse occurred in a state mental
health hospital or a state developmental center, the report may be
made to the designated investigator of the State Department of Mental
Health or the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsman. Except in an
emergency, the local ombudsman and the local law enforcement agency
shall report any case of known or suspected criminal activity to the
Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is practicable.
(4) If the suspected or alleged abuse occurred in a place other
than a place described in paragraph (2) or (3), the report may be
made to the county adult protective services agency.
(5) If the conduct involves criminal activity not covered in
subdivision (b), it may be immediately reported to the appropriate
law enforcement agency.
(d) When two or more mandated reporters are present and jointly
have knowledge or reasonably suspect that types of abuse of an elder
or a dependent adult for which a report is or is not mandated have
occurred, and when there is agreement among them, the telephone
report may be made by a member of the team selected by mutual
agreement, and a single report may be made and signed by the selected
member of the reporting team. Any member who has knowledge that the
member designated to report has failed to do so shall thereafter
make the report.
(e) A telephone report of a known or suspected instance of elder
or dependent adult abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent
adult, the present location of the elder or dependent adult, the
names and addresses of family members or any other person responsible
for the elder or dependent adult's care, the nature and extent of
the elder or dependent adult's condition, the date of the incident,
and any other information, including information that led that person
to suspect elder or dependent adult abuse, as requested by the
agency receiving the report.
(f) The reporting duties under this section are individual, and no
supervisor or administrator shall impede or inhibit the reporting
duties, and no person making the report shall be subject to any
sanction for making the report. However, internal procedures to
facilitate reporting, ensure confidentiality, and apprise supervisors
and administrators of reports may be established, provided they are
not inconsistent with this chapter.
(g) (1) Whenever this section requires a county adult protective
services agency to report to a law enforcement agency, the law
enforcement agency shall, immediately upon request, provide a copy of
its investigative report concerning the reported matter to that
county adult protective services agency.
(2) Whenever this section requires a law enforcement agency to
report to a county adult protective services agency, the county adult
protective services agency shall, immediately upon request, provide
to that law enforcement agency a copy of its investigative report
concerning the reported matter.
(3) The requirement to disclose investigative reports pursuant to
this subdivision shall not include the disclosure of social services
records or case files that are confidential, nor shall this
subdivision be construed to allow disclosure of any reports or
records if the disclosure would be prohibited by any other provision
of state or federal law.
(h) Failure to report physical abuse, abandonment, abduction,
isolation, financial abuse, or neglect of an elder or dependent
adult, in violation of this section, is a misdemeanor, punishable by
not more than six months in the county jail, by a fine of not more
than one thousand dollars ($1,000), or by both that fine and
imprisonment. Any mandated reporter who willfully fails to report
physical abuse, abandonment, abduction, isolation, financial abuse,
or neglect of an elder or dependent adult, in violation of this
section, where that abuse results in death or great bodily injury,
shall be punished by not more than one year in a county jail, by a
fine of not more than five thousand dollars ($5,000), or by both that
fine and imprisonment.
SEC. 3. Section 15631 of the Welfare and Institutions Code is
amended to read:
15631. (a) Any person who is not a mandated reporter under
Section 15630, who knows, or reasonably suspects, that an elder or a
dependent adult has been the victim of abuse may report that abuse to
a long-term care ombudsman program or local law enforcement agency
when the abuse is alleged to have occurred in a long-term care
facility.
(b) Any person who is not a mandated reporter under Section 15630,
who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in any place other than a
long-term care facility may report the abuse to the county adult
protective services agency or local law enforcement agency.
(c) Any person who is not a mandated reporter under Section 15630,
who knows, or reasonably suspects, that an elder or a dependent
adult has been the victim of abuse in a long-term health care
facility, as defined in Section 1418 of the Health and Safety Code,
and knows that the victim has died, may report the abuse and the
death to the medical examiner or coroner of the county in which the
death occurred. The person may communicate the report by telephone,
facsimile, or electronic mail. The medical examiner or coroner to
whom the report is made shall provide acknowledgement of receipt of
the report to the person who made the report.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because in that regard this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.