BILL ANALYSIS
AB 416
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 416 (Block) - As Introduced: February 23, 2009
SUBJECT : Developmental services: consumer abuse registry.
SUMMARY : Requires providers of services to consumers with
developmental disabilities (DD consumers) to report evidence of
DD consumer abuse to investigating agencies, requires
investigating agencies to report substantiated cases of DD
consumer abuse to the Department of Developmental Services
(DDS), and requires DDS to develop a registry of direct service
workers with histories of substantiated reports of abuse.
Specifically, this bill :
1)Requires providers, as defined, to report to appropriate
investigating agencies any evidence of abuse of a DD consumer
by a direct service worker, defined as a person who provides
direct care to DD consumers.
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 and other persons with a history of one
or more substantiated reports of DD consumer abuse.
4)Prohibits the registry from including confidential consumer
information.
5)Requires DDS, in consultation with designated stakeholders, to
adopt procedures for:
a) Adding a person to the registry based on a substantiated
report of abuse submitted by an investigating agency;
b) Notification of a person whose name is added to the
registry;
c) Allowing a person to appeal being added to the registry,
and for that person to be added to a "pending appeal"
category for no longer than a specified period of time;
d) Enabling a person listed on the registry to petition for
immediate removal from the registry;
e) Updating the registry content on a regular basis; and,
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f) Authorizing the following individuals and agencies to
contact DDS to determine whether an employee or contractor,
or a prospective employee or contractor, is included in the
registry:
i) Representatives of regional centers;
ii) Providers of services to DD consumers;
iii) Law enforcement agencies;
iv) District attorneys;
v) County child protective services (CPS) and adult
protective services (APS) agencies;
vi) Office of the Attorney General;
vii) The state long-term care ombudsman;
viii) DD consumers and their family members;
ix) Licensing agencies;
x) DDS;
xi) The Department of Aging;
xii) The Department of Social Services (DSS); and,
xiii) The Department of Mental Health.
6)Establishes immunity from liability for DDS and any other
person or entity that participates in the development of,
uses, or relies on the registry.
7)Requires providers, other than DD consumers or families hiring
caregivers, 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, by July 1, 2010, to adopt regulations pertaining
to the registry which include penalties for providers that
hire persons in the registry in violation of 7) above.
9)Requires DDS to coordinate with the Department of Public
Health (DPH) and DSS to share information about direct service
workers or other service providers, against whom there are
substantiated reports of DD consumer abuse for inclusion in
the registry.
10)Provides that this bill does not change existing child,
elder, or dependent adult abuse reporting requirements.
11)Defines abuse to mean an act or failure to act that would be
considered abuse or neglect as those terms are defined in
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existing child and dependent adult abuse reporting statutes.
12)Defines an investigating agency as any agency with a
statutory responsibility to report incidents of abuse or
neglect.
13)Defines a provider to mean a licensed or unlicensed
individual or agency that provides residential or
non-residential services to DD consumers, including but not
limited to, the following types of services: day programs;
transportation; work activity and supported employment;
counseling and therapy; medical and dental; case management,
professional conservatorship and guardianship; attendant or
personal assistant; and, residential.
14)Defines substantiated report to mean a report of abuse
provided by an investigating agency where that agency has
determined that abuse is likely to have occurred.
EXISTING LAW :
1)Establishes the Lanterman Developmental Disabilities Services
Act, which provides that DD consumers 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 DD consumers have a
right to be free from harm, including unnecessary physical
restraint, or isolation, excessive medication, abuse, or
neglect.
2)Establishes procedures for reporting of abuse or neglect of
elders, dependent adults, and children by mandatory and
non-mandatory reporters.
3)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.
4)Establishes the responsibility or authority of various state
and local agencies for investigating reported incidents of
abuse or neglect, including CPS and APS agencies, licensing
agencies, and the state's federally mandated protection and
advocacy agency.
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5)Requires criminal background checks of applicants, employees,
and licensees of licensed residential and non-residential
community care facilities.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, individuals
with developmental disabilities have a high risk of being
victimized. The author states that under current law,
registries that identify abusive caregivers are available for
children and the elderly in California but are not available
for people with developmental disabilities. The author argues
the registry created in this bill would help remedy the
situation by requiring providers to report any substantiated
case of abuse of a DD consumer by a direct service worker.
2)BACKGROUND . According to the Registry to End Abusive
Caregiver Hiring (REACH) Project, in California, over 220,000
DD consumers receive care in residential and day programs,
independent and supported living, and at-home, private care.
The author reports that these individuals are two to five
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. According to the Registry to End Abusive
Caregiver Hiring (REACH) Project, the higher incidence of
abuse among DD consumers is due to many factors, including:
a) DD consumers are often segregated from the mainstream
population;
b) DD consumers are often heavily dependent on caregivers
for basic care needs; and,
c) DD consumers may have severe cognitive disabilities that
make them more vulnerable to abuse, less aware of their
rights, and less able to report abuse.
The REACH Project states that 44% of abusers make first
contact with their DD consumer victims as unlicensed, direct
care workers. According to Protection & Advocacy, Inc.,
unlike those who work with children or the elderly, most
direct care workers working with DD consumers are not
licensed. If these unlicensed caregivers commit abuse and are
caught, they can move from one agency to another and abuse
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again. Protection & Advocacy, Inc. states that although abuse
may be reported to investigative agencies, law enforcement, or
state licensing agencies, absent a criminal conviction, there
is no mechanism to track or make information about an abusive
caregiver available to the public.
In 2007, AB 1192 (Evans) would also have established a DD
consumer abuse registry, but was vetoed by Governor
Schwarzenegger. Assemblymember Evans introduced AB 1983 in
2008, which is nearly identical to this bill, and stated she
was addressing Governor Schwarzenegger's veto message for AB
1192 by including stronger requirements that substantiated
reports of abuse be referred to the registry, requiring that
providers use the registry before hiring or contracting with a
direct service worker, and requiring penalties for hiring
individuals who are on the registry. AB 1983 and this bill
also place the responsibility for conducting investigations
and substantiating reports of abuse on multiple agencies which
already have responsibility for investigating such reports of
abuse or neglect, in order to reduce the costs relative to AB
1192.
3)REPORT ON ABUSE AND NEGLECT OF DD CONSUMERS . In August 2003,
Protection & Advocacy, Inc., the State Council on
Developmental Disabilities, the Tarjan Center for
Developmental Disabilities at UCLA and the USC University
Affiliated Program issued a report entitled, "Abuse and
Neglect of Adults with Developmental Disabilities: A Public
Health Priority for the State of California" (report). The
report states that the abuse and neglect of DD consumers 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. The report showed that
arrests and convictions rarely 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. For these reasons, the report
called for improved data systems for tracking abuse.
4)RESPONSIBILITIES FOR REPORTING AND INVESTIGATING ABUSE .
Individuals with responsibility for the care and custody of
elder (65 years and older) or dependent adults (18-64 years
who are disabled) and, for children under 18 years, child care
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workers, school employees, public safety personnel, health
care providers, clergy, social workers, and other specified
individuals, are mandated reporters under California law.
Mandated reporters must report incidents that reasonably
appear to be abuse or neglect of elder or dependent adults or
children to at least one of the following investigating
agencies, as appropriate: local law enforcement; county CPS or
APS agencies; or, the state agency responsible for licensing
the facility in which the abuse is believed to have occurred,
if applicable.
Several state agencies license facilities that serve DD
consumers. According to DSS, the Office of the State
Long-Term Care Ombudsman investigates reports of abuse that
occur in a nursing home, board and care home, residential
facility for the elderly, or long-term care facility. Cases
of alleged abuse by hospital or health clinic staff, however,
are handled by the DPH Licensing and Certification Program.
Alleged abuse of DD consumers in regional centers is reported
to local CPS or APS agencies or law enforcement for
investigation. County APS agencies also investigate
allegations of abuse of elder and dependent adults who live in
private homes, hotels or hospitals, and health clinics when
the abuser is not a staff member. The Community Care
Licensing Program of DSS is responsible for investigating DD
consumer abuse in community or non-medical facilities. DDS
investigates allegations of abuse at its developmental
centers.
According to the "Consumer Abuse Report," investigation
findings may be shared with submitting agencies, which then
determine whether a suspected caregiver will remain employed,
receive further training, or be terminated from employment.
However, finalized findings are filed by the investigating
agency and are not centralized or easily accessible to hiring
agencies. Without a criminal conviction, there is no
mechanism for tracking or making available to the public
information about an abusive caregiver.
5)PREVIOUS LEGISLATION .
a) AB 1983 (Evans) of 2008 was nearly identical to this
bill and was held under submission on the Assembly
Appropriations Suspense File.
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b) AB 2038 (Lieber) of 2008, the Crime Victims with
Disabilities Act of 2008, would have revised statutes
relating to professional training, reporting, oversight,
and representation with the intent to better serve the
needs of DD consumers who are crime victims. AB 2038 was
held under submission on the Senate Appropriations Suspense
File.
c) AB 1192 (Evans) of 2007, was similar to this bill and
was vetoed by Governor Schwarzenegger, who stated:
I am 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. This bill does not require that all
incidents of substantiated abuse actually be
reported to the proposed registry. Second, the bill
does not require service providers to actually use
the registry. Current law already requires staff of
Regional Centers and persons working at community
care facilities to report suspected abuse to Adult
Protective Services, who in turn is required to
investigate these allegations. I am directing the
Health and Human Services Agency to convene
interested stakeholders to identify potential areas
where the State can enhance protections for persons
with developmental disabilities and improve ongoing
efforts to enhance the sharing of information about
service providers.
6)POLICY QUESTIONS .
a) Should this bill permit CPS, APS, and other
investigative agencies to access the DD consumer abuse
registry when conducting investigations of alleged abuse
and neglect of DD consumers, dependent and elder adults,
and children?
b) This bill addresses a very important problem. However,
given the state's current fiscal constraints and cuts to
existing programs, is it prudent to establish a new program
that anticipates significant GF expenditures?
7)DOUBLE REFERRED . This bill was heard in the Assembly Human
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Services Committee on April 14, 2009 and passed on a 4-1 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Allegra Kim / HEALTH / (916) 319-2097