BILL ANALYSIS
AB 416
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 416 (Block) - As Introduced: February 23, 2009
SUBJECT : Developmental services: consumer abuse registry.
SUMMARY : Requires providers of services to people with
developmental disabilities (consumers) to report evidence of
consumer abuse to investigating agencies and requires the
Department of Developmental Services (DDS) to develop a registry
identifying direct service workers with histories of
substantiated reports of abuse. Specifically, this bill :
1)Requires providers, as defined, to report to appropriate,
designated investigating agencies any evidence of abuse of a
person with a developmental disability by a direct service
worker, defined as a person who provides direct care to people
with developmental disabilities.
2)Requires investigating agencies to report substantiated cases
of abuse to DDS.
3)Requires DDS to establish and regularly update a registry of
direct service workers with a history of one or more
substantiated reports of consumer abuse.
4)Requires that the registry not contain confidential consumer
information.
5)Requires that DDS, in consultation with designated
stakeholders, adopt a protocol that will:
a) Authorize designated individuals and agencies-including
regional centers, providers, law enforcement, protective
services agencies, district attorneys, the long-term care
ombudsman, consumers and family members, licensing
agencies, DDS and other state agencies-to contact DDS to
determine whether an employee or contractor, or a
prospective employee or contractor, is included in the
registry.
b) Provide a procedure for notification of a person whose
name is added to the registry;
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c) Provide a procedure to appeal a decision to add a person
to the registry, which shall include a "pending appeal"
designation;
d) Enable a person to petition for immediate removal from
the registry; and,
6)Establishes immunity from liability to DDS and any other
person or entity that participates in the development of, or
uses or relies on the registry.
7)Requires providers, other than consumers or families hiring
direct service workers, to access the registry to determine
whether an individual is in the registry before hiring or
contracting with that person and prohibits such providers from
hiring or contracting for services with a person included in
the registry.
8)Requires DDS to adopt regulations pertaining to the registry
by July 1, 2009, which must include penalties for providers
that hire persons in the registry in violation of the
prohibition contained in the bill.
9)Requires DDS to coordinate with the Departments of Public
Health and Social Services to share information about direct
service workers or other service providers, against whom there
are substantiated reports of consumer abuse for inclusion in
the registry.
10)Provides that this bill does not change existing laws
mandating reporting of child, elder, or dependent adult abuse.
11)Defines "abuse" to mean acts or failures to act that would be
considered abuse or neglect as those terms are defined in
existing child and dependent adult abuse reporting statutes.
12)Defines "provider" to mean licensed or unlicensed individuals
or agencies that provide residential or non-residential
services to people with developmental disabilities, including
but not limited to the 8 categories of services listed in the
bill.
13)Defines "substantiated report" to mean a determination of
abuse based on evidence that makes it more likely than not
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that abuse occurred.
EXISTING LAW
1)Establishes the Lanterman Developmental Disabilities Services
Act, which provides that people with developmental
disabilities have a right to services and supports to meet the
needs and choices of each person and to support their
integration into the mainstream of life of the community, and
which provides that people with developmental disabilities
have a right to be free from harm, including unnecessary
physical restraint, or isolation, excessive medication, abuse,
or neglect.
2)Establishes private non-profit regional centers that contract
with DDS to provide case management services and arrange for,
or purchase, services that meet the needs of individuals with
developmental disabilities.
3)Establishes procedures for reporting of abuse or neglect of
elders, dependent adults, and children by mandatory and
non-mandatory reporters.
4)Establishes the responsibility or authority of various state
and local agencies for investigating reported incidents of
abuse or neglect, including child and adult protective
services agencies, licensing agencies, and the state's
federally mandated protection and advocacy agency.
5)Requires criminal background checks of applicants, employees,
and licensees of licensed residential and non-residential
community care facilities.
FISCAL EFFECT : According to the Assembly Appropriations
Committee analysis of a 2008 bill with identical language (AB
1983 (Evans)):
1) One-time GF costs of $2 million to $4 million for DDS to
establish the registry with input from numerous
stakeholders and with precise functionality required by the
bill. Unknown on-going registry maintenance costs of more
than $200,000 GF depending on the volume and complexity of
information related to the registry that is established.
Under current law, many of the abuse screening data and
tools are automated. Many others require intense review
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and legal and criminal justice expertise to determine the
seriousness and circumstances of a crime.
2) Annual GF investigation costs to DDS of more than $1
million. The bill appears to require DDS to increase
investigation responsibilities as compared to current law.
3) Annual GF costs of more than $1 million to the extent
this bill increases the reporting of "any evidence" of
abuse. It is unclear what this provision means in terms of
employees and providers mandated or not mandated under
current law to report neglect and abuse.
4) Annual GF increased costs of more than $200,000 for
criminal background checks to the extent this bill's
requirements generate more criminal background checks among
the work force in question. Depending on the agency
conducting the background checks and what data is accessed,
each check is between $30 and $130.
COMMENTS : In California, over 220,000 people with developmental
disabilities receive care, supports and services in a multitude
of residential and non-residential settings through a multitude
of programs and providers. The author cites to data indicating
that these individuals are 2 to 5 times more likely to
experience severe, long-lasting, and repeated abuse than people
without disabilities, often by the very persons who are
responsible for their care and well-being.
The bill's sponsor-Registry to End Abusive Caregiver Hiring
(REACH) Project-states that the higher incidence of abuse is due
to many factors: People with developmental disabilities are
often segregated from the mainstream population. They are often
heavily dependent on caregivers for basic care needs. They may
have severe cognitive disabilities that make them more
vulnerable to abuse, less aware of their rights, and less able
to report abuse. Abusive caregivers, REACH notes, are easily
able to move from one agency to another and abuse again.
In August 2003, Protection & Advocacy, Inc. (now Disability
Rights California), the State Council on Developmental
Disabilities, the Tarjan Center for Developmental Disabilities
at UCLA and the USC University Affiliated Program issued a
report called "Abuse and Neglect of Adults with Developmental
Disabilities: A Public Health Priority for the State of
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California." The report states that the abuse and neglect of
people with developmental disabilities is a serious public
policy issue warranting the highest level of attention. One of
the major findings in the report is that the current system of
protections is inadequate for victims with developmental
disabilities. It calls for improved data systems for tracking
abuse. It also notes that only the rare arrests and convictions
get tracked through law enforcement systems and most
perpetrators are never formally reported to law enforcement,
with accusations handled administratively as employment issues.
Perpetrators are then free to move from job to job.
This bill takes steps to address the all-too-frequent abuse of
people with disabilities by creating a registry to track cases
of substantiated abuse, which can be accessed by consumers,
employers, prospective employers, and others to determine
whether a direct service worker has a history of substantiated
reports of abuse. The author reports that nine states have
instituted such abuse registries.
This bill requires that incidents of abuse be reported to
appropriate investigating agencies and those entities must then
report substantiated cases of abuse to DDS. DDS is required to
develop and maintain a registry to track substantiated reports
and provide information to providers and others as to whether
there are substantiated reports of abuse related to an
individual direct service worker. DDS must work with
stakeholders to develop protocols for the registry, including
procedures for notifying persons who are listed on the registry
and for an appeal process.
Disability Rights California, the state's designated protection
and advocacy (P&A) agency (Welfare & Institutions Code Sections
4900-4906), supports this bill but recommends that it be amended
to add the P&A agency to the list of agencies with access to the
registry. Given the mandated responsibilities of the state's
P&A agency with respect to monitoring, conducting investigations
and issuing reports with respect to systemic issues involving
abuse and neglect of people with developmental disabilities, the
author may wish to consider adding the P&A agency to the list of
entities with access to the registry.
Prior bills : AB 1192 (Evans), introduced in 2007, would also
have established an abuse registry, but was vetoed. In his veto
message, the Governor said, "[w]hile well intended, I am
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concerned this bill will not provide effective health and safety
protections for persons with developmental disabilities and will
increase state costs by millions of dollars during a time of
budget challenges."
A 2008 bill (AB 1983 (Evans)) addressed many of the issues and
concerns that had been raised about AB 1192, including those
referred to in the veto message. This bill, as introduced, is
identical to the amended version of AB 1983 that was held on the
Assembly Appropriations Committee Suspense file. AB 1983
included stronger requirements than AB 1192 that substantiated
reports of abuse be referred to the registry. AB 1983 had more
stringent requirements that providers actually use the registry
before hiring or contracting with a direct service worker and
required penalties for hiring individuals who are on the
registry, in violation of the requirements of the bill.
One potentially significant difference between AB 1192 and AB
1983 (and, thus, this bill) was that the former bill would have
required the Secretary of the Health and Human Services Agency
to designate a department to be responsible for overseeing the
registry and for establishing and overseeing a mechanism for the
investigation and substantiation of abuse allegations throughout
the state. The designated department would likely have needed
substantial additional resources to carry out these
responsibilities on a statewide basis. AB 1983, on the other
hand, placed the responsibility for conducting investigations
and substantiating reports of abuse on multiple agencies that
already have responsibility for investigating such reports of
abuse or neglect. (For this reason, the $1 million in annual
costs to DDS for increased investigation responsibilities
identified by the Assembly Appropriations Committee analysis of
AB 1983 (see Fiscal Effect, Item 2, above) appears to actually
have been addressed in the March 25, 2008 amended version of AB
1983.)
While this bill addresses an important issue, it contains no
funding mechanism and it is unclear how it will address the
fiscal concerns that prevented passage of an identical bill only
last year.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Health Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
Disability Rights California
Registry to End Abusive Caregiver Hiring (REACH) Project
Opposition
None on file.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089