BILL NUMBER: SB 1644 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 24, 2004
AMENDED IN SENATE APRIL 27, 2004
AMENDED IN SENATE APRIL 12, 2004
AMENDED IN SENATE MARCH 22, 2004
INTRODUCED BY Senator Romero
(Principal coauthors: Senators Escutia and Kuehl)
(Coauthor: Senator Machado)
(Coauthors: Assembly Members Laird and Pavley)
FEBRUARY 20, 2004
An act to add Section 102800.1 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.
An act to add Section 102336 to the Health and Safety Code, and to
add Section 11174.85 to the Penal Code, relating to elder death.
LEGISLATIVE COUNSEL'S DIGEST
SB 1644, as amended, Romero. Long-term health care:
deaths of residents: reporting requirements Elder
death review teams: access to vital record information .
(1) Existing law requires each death to be registered with the
local registrar of births and deaths in the district in which the
death was officially pronounced or the body was found. Existing law
prescribes the contents of the certificate of death, including
medical and health section data, as well as personal data and other
information necessary to establish the fact of the death. Under
existing law, the attending physician is required to complete the
medical and health section data within 15 hours after the death, and
to deposit the certificate at the place of death or deliver it to the
attending funeral director, who is then required to obtain the
required information, other than medical and health section data,
from the person or source best qualified to supply this information.
Under existing law, the refusal or failure to furnish correctly any
information that is required for the certificate of death, or the
furnishing of false information, by a person who is responsible for
supplying that information is a misdemeanor.
This bill would require, whenever a resident in a long-term health
care facility, as defined, is known or suspected to have died, that
the facility notify the attending physician and surgeon or his or her
designated medical professional, and that the physician and surgeon
or designated medical professional complete the medical and health
data section of the certificate of death, as well as the name of the
resident, the name and address of the facility, and the date and time
of death. The bill would require the physician and surgeon or
designated medical professional to deposit a copy of the certificate
of death at the office of the local coroner or medical examiner
within 15 hours of the death or discovery of the death. The bill
would require the coroner or medical examiner to acknowledge receipt
of the certificate.
This bill would provide that the failure of a physician or
designated medical professional to comply with the bill may result in
the imposition of a civil penalty. In addition, by expanding the
definition of an existing crime, this bill would impose a
state-mandated local program.
(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, with
the exception of the State Department of Health Services, 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 and would require the medical examiner or
coroner to acknowledge receipt of the report.
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) This bill would also impose a state-mandated local program by
requiring the coroner or medical examiner to compile, on a quarterly
basis, aggregate information required by the bill concerning the
number of deaths and the names of the facilities in which the deaths
occurred, and to make the aggregate information available to the
public upon request.
(4) The
Existing law requires each death to be registered with the local
registrar of births and deaths in the district in which the death was
officially pronounced or the body was found. Under existing law, a
local registrar, deputy registrar, or subregistrar, who fails,
neglects, or refuses to perform his or her duty as required by the
existing law relating to the creation and maintenance of vital
records, including certificates of death, is guilty of a misdemeanor.
Existing law requires the State Department of Health Services to
implement an Internet-based electronic death registration system on
or before January 1, 2005. Existing law authorizes each county to
establish an interagency elder death team to assist local agencies in
identifying and reviewing suspicious elder deaths. Under existing
law, an oral or written communication or a document shared within or
produced by an elder death review team, as well as certain
communications and documents of a 3rd party provided to an elder
death review team, is confidential. Existing law provides that the
disclosure of information relevant to the work of an elder death
review team by any individual or agency is intended to be voluntary.
This bill would require the local registrar of births and deaths,
upon the request of a member of a county elder death review team, to
make available and assist the electronic transfer of information from
a death certificate to the county elder death review team, in
accordance with the statewide Internet-based death registration
system, in any county that has access to the statewide system. The
bill would authorize an organization represented on an elder death
review team to request and obtain copies of death certificates,
subject to existing law confidentiality and disclosure requirements.
By imposing this requirement on local registrars of births and
deaths, and by expanding the definition of an existing crime, the
bill would impose a state-mandated local program.
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 102800.1 is added to the Health and
SECTION 1. Section 102336 is added to the Health and Safety Code,
to read:
102336. Notwithstanding paragraph (2) of subdivision (b) of
Section 11174.8 of the Penal Code, upon the request of a member of a
county elder death review team established pursuant to Article 2.7
(commencing with Section 11174.4) of Chapter 2 of Title 1 of Part 4
of the Penal Code, a local registrar of deaths shall make available
and assist the electronic transfer of information from a certificate
of death to the county elder death review team, in accordance with
the Internet-based electronic death registration system established
by the State Department of Health Services pursuant to Section
102778, in any county that has access to the statewide system.
SEC. 2. Section 11174.85 is added to the Penal Code, to read:
11174.85. An organization represented on an elder death review
team may request and obtain copies of certificates of death from the
local registrar of deaths. Each organization represented on an elder
death review team may share with any other member of the team any
information obtained from a death certificate obtained from the local
registrar of deaths. Information received by a member of an elder
death review team pursuant to this section shall be subject to the
confidentiality and disclosure requirements of Section 11174.8.
Safety Code, to read:
102800.1. (a) (1) When a resident in a long-term care health
facility, as defined in Section 1418, is either known or suspected to
have died, the facility shall immediately notify the physician and
surgeon last in attendance, or the physician and surgeon's designated
medical professional, who shall certify the death in accordance with
this chapter. Notwithstanding any other provision of law, in
addition to the medical and health section data, the physician and
surgeon or designated medical professional shall indicate on the
certificate of death the name of the resident, the name and address
of the facility, and the date and time of death, as well as any other
pertinent identifying information that the local coroner or medical
examiner deems appropriate.
(2) Within 15 hours of the death or discovery of the death, the
physician and surgeon or designated medical professional shall
deposit a copy of the certificate of death at the office of the local
coroner or medical examiner. The coroner or medical examiner to
whom the report is made shall provide acknowledgment of receipt of
the report to the person who made the report.
(b) Failure by a physician and surgeon or designated medical
professional to comply with this section may result in the imposition
of a civil penalty in an amount not less than one hundred dollars
($100) and not exceeding one thousand dollars ($1,000) for each
failure to comply.
(c) Notwithstanding any other provision of law, aggregate
information derived from the information required to be reported
under this section and Section 15630 of the Welfare and Institutions
Code concerning the number of deaths and the names of the facilities
in which these deaths occurred shall be compiled quarterly by the
coroner or medical examiner and made available to the public upon
request.
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) A mandated reporter, with the exception of the State
Department of Health Services, 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, who makes a report in accordance with subparagraph (B),
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. The mandated
reporter may communicate the report by telephone, facsimile, or
electronic mail. The medical examiner or coroner to whom the report
is made shall provide acknowledgment of receipt of the report to the
mandated reporter who made the report.
(B) This paragraph shall apply when the mandated reporter has
observed or has knowledge of an incident that reasonably appears to
be, or is told by an elder or dependent adult that he or she has
experienced, behavior, including an act or omission, that constitutes
physical abuse, abandonment, abduction, isolation, financial abuse,
or neglect, or when the mandated reporter reasonably suspects that
abuse, and has made a report based on that information.
(C) Notwithstanding any other provision of law, aggregate
information derived from the information required to be reported
under this section and Section 102800.1 of the Health and Safety Code
concerning the number of deaths and the names of the facilities in
which these deaths occurred shall be compiled quarterly by the
coroner or medical examiner and made available to the public upon
request.
(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.
(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.
(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) (1) 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 acknowledgment of
receipt of the report to the person who made the report.
(2) Notwithstanding any other provision of law, aggregate
information derived from the information required to be reported
under this section and Section 102800.1 of the Health and Safety Code
concerning the number of deaths and the names of the facilities in
which these deaths occurred shall be compiled quarterly by the
coroner or medical examiner and made available to the public upon
request.
SEC. 4.
SEC. 3. 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.