BILL ANALYSIS �
AB 40
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Date of Hearing: March 29, 2011
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 40 (Yamada) - As Amended: March 21, 2011
SUBJECT : Elder Abuse: Reporting
SUMMARY : This bill requires mandated reporters of elder or
dependent adult abuse to report suspected or known instances of
elder or dependent adult abuse, which is believed to have
occurred in a long-term care facility, to both the Long-Term
Care Ombudsman (LTCO) and local law enforcement. This bill also
requires mandated reporters of suspected financial abuse of an
elder or dependent adult to report known or suspected instances
of financial abuse against an individual living in a long-term
care facility, to both the LTCO and local law enforcement.
Current law requires mandated reporters of elder and dependent
adult abuse to report to either the LTCO or local law
enforcement.
EXISTING LAW:
1. Establishes legislative findings and intent that, among
other things, finds and declares that;
a. Elders and dependent adults may be subjected to abuse,
neglect, or abandonment and that California has the
responsibility to protect them.
b. Various factors contribute to the incidence of abuse,
such as economic instability of the family, resentment of
caretakers, stress upon the caretaker, and substance abuse.
c. Uniform state guidelines, which specify when county
adult protective service agencies are to investigate
allegations of abuse of elders and dependent adults and the
appropriate role of local law enforcement is necessary in
order to ensure that a minimum level of protection is
provided to elders and dependent adults in each county.
d. Adult protective services agencies, LTCO programs, and
local law enforcement agencies shall receive referrals or
complaints of abuse from public or private agencies,
mandated reporters or any other source having reasonable
cause to know that the welfare of an elder or dependent
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adult is endangered.
e. Law enforcement, the LTCO and/or Adult Protective
Services (APS) shall take any actions considered necessary
to protect the elder or dependent adult and correct the
situation and ensure the individual's safety.
1. Defines various terms for purposes of reporting,
investigating and mitigating elder or dependent adult abuse.
Abandonment;
Abduction;
Abuse of and elder or dependent adult;
Adult protective services;
Care custodian;
Clients rights advocate;
Clergy;
Dependent adult;
Elder;
Developmentally disabled person;
Financial abuse;
Health practitioner;
Imminent danger;
Isolation;
Local law enforcement agency;
Long-term care facility;
Long-term Care Ombudsman;
Neglect;
Physical abuse;
Reasonable suspicion; and,
Others
1. Declares any person who has assumed full or intermittent
responsibility for the care of an elder or dependent adult,
(whether compensated or not), health practitioner, clergy
member or employee of an APS or law enforcement agency as a
'mandated reporter'.
2. Declares all employees and officers of a financial
institution to be mandated reporters of financial abuse of an
elder or dependent adult.
3. Establishes the LTCO program, by the Older American's Act
(OAA) and places it within the California Department of Aging
(CDA) by the Older Californians Act (OCA) in order to
encourage community contact and involvement with elderly
patients or residents of long-term care facilities or
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residential facilities through the use of volunteers and
volunteer programs. Existing law also compels LTCO to
investigate and seek to resolve complaints and concerns
communicated by, or on behalf of, patients, residents, or
clients of any long-term care facility.
4. Existing law also establishes protocol for mandated
reporters, as defined, when reporting elder and dependent
adult abuse. Generally, mandated reporters of elder and
dependent adult abuse are required to report observed or
known incidents that reasonably appear to be physical abuse
(i.e. assault, battery, assault with a deadly weapon,
unreasonable and prolonged physical restraint, deprivation of
food or water, sexual assault, use of chemical restraints for
punishment or beyond the constraints of the attending
physician's orders), abandonment, abduction, isolation,
financial abuse, or neglect. When the abuse occurs outside a
long-term care facility, the mandated reporters report abuse
to the local APS program, or to law enforcement. When the
abuse occurs within a long-term care facility, the mandated
reporters report to the LTCO or the local law enforcement.
THIS BILL
AB 40, as amended, requires mandated reporters to report
physical abuse which occurs within a long-term care facility,
and financial abuse of a resident of a long-term care facility,
to both the LTCO and local law enforcement. Current law
provides for a mandate to report to the Long-Term Care Ombudsman
or local law enforcement.
BACKGROUND
The LTCO program is administered through the CDA and 35 local
programs contracted through the network of local area agencies
on aging (AAA). The program utilizes approximately 950
volunteers and 155 paid full-time and part-time staff to serve
as resident/patient advocates of residents in over 9,000
long-term care facilities. Volunteers initially receive a
minimum of 36 hours of training to carry-out their duties.
According to the CDA website, the primary responsibility of the
program is to investigate and endeavor to resolve complaints
made by, or on behalf of, individual residents in long-term care
facilities. The goal of the program is to advocate for the
rights of all residents of long-term care facilities.
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According to the author, the LTCO program is operating under
conflicting mandates. Under the OAA mandate, LTCO serve as a
resident advocate and are prohibited from disclosing information
on reports of abuse to anyone without the written consent of the
subject of the report. However, under the state's mandated
reporting laws, LTCO are required to receive and initiate
investigations of reports of abuse. The author contends that
the LTCO is not designed to carry-out investigative roles due to
their federal prohibition from disclosing information on reports
- a prohibition which precludes reporting to law enforcement and
licensing agencies - even when the subject's well-being may be
in jeopardy. Without the consent of the resident(s) involved,
or their legal representatives, criminal activities that would
otherwise be subject to swift and decisive action by law
enforcement and licensing agencies, is left to the advocacy
devices of volunteers.
The Welfare and Institutions Code acknowledges the conflict, yet
affirms that LTCO can only cross report with the consent of the
resident (� 15640 �d]), further stating that; "If a victim or
potential victim of the neglect withholds consent to being
identified in that report, the report shall contain
circumstantial information about the neglect but shall not
identify that victim or potential victim and the bureau and the
reporting agency shall maintain the confidentiality of the
report until the report becomes a matter of public record."
According to the author, this becomes particularly troubling in
abuse cases reported to the LTCO where the victim is unable to
offer consent to share information with law enforcement
personnel in order to complete a thorough investigation and
secure justice-it creates a loophole which allows criminal
activity to go unchecked.
Recent Report
The California State Senate Office of Oversight and Outcomes
issued a report in November of 2009 entitled California's Elder
Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and
Duties. In the report, the issue of conflicting mandates was
discussed extensively, and the report concluded, among other
things, that California should adopt a policy that requires
mandated reporters to report to both Ombudsman and local law
enforcement. The report further concluded that state law should
be changed to conform with federal law with regard to obtaining
consent, and recommends transferring responsibility of receiving
mandated reports and investigating abuse to another entity,
while informing the Ombudsman.
AB 40
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Arguments in Support
According to supporters, current law effectively defeats much of
the purpose of mandating reports of abuse of people with
disabilities and elders in long-term care facilities because it
allows mandated reporters to report exclusively to the LTCO who
have no law enforcement powers and are prohibited by federal law
from reporting these crimes to the police and licensing
agencies.
The Contra Costa Area Agency on Aging writes that AB 40 would
strengthen reporting requirements so that the heinous crime of
elder abuse can be investigated and prosecuted more
expeditiously and effectively.
Arguments in Opposition
According to opponents, AB 40 "changes to whom the mandated
reporter makes a report of neglect," and may lead to
over-reporting. The California Association of Health Facilities
(CAHF-"Oppose unless Amended") is concerned that over-reporting
may overwhelm scarce facility and/or community resources. CAHF
further argues that the California Department of Public Health's
continued failure to issue regulations defining specific
portions of the reporting statute, including what constitutes
"alleged or suspected" abuse and "resident-to-resident" abuse
has led to gross over reporting of incidents by mandated
reporters in long-term care settings. These assertions may be
reflected in statistics acquired from the previously mentioned
California Senate Office of Oversight and Outcomes report that
finds that compared to other states, California's paid and
volunteer LTCO staff receives far more reports than paid and
volunteer LTCO staff in other states. In California, each LTCO
volunteer receives and completes on average, 8-9 reports of
abuse and neglect annually. In other states, volunteer LTCO
complete only 1-2. In California, each paid staff receives and
completes an average of 38 cases per year. In the rest of the
US, paid LTCO staff complete about 12 per year.
The California Hospital Association (CHA) is also opposed unless
amended and proposes adopting language to conform to a
recommendation from a recent Senate Office of Oversight and
Outcomes report entitled California's Elder Abuse Investigators:
Ombudsmen Shackled by Conflicting Laws and Duties. One of
eleven recommendations asserts that California may want to
consider transferring the responsibility of receiving mandated
reports and investigating abuse to another entity, such as state
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licensing units or local Adult Protective Services not bound by
the Older American's Act, while also requiring the Ombudsman
program to continue to be informed of mandated reports.
The California Association of Marriage and Family Therapists
argues that "?for mandated reporters to make two separate
reports about persons in long-term care facilities is
excessive."
Although not opposed, CALA, the California Assisted Living
Association expresses concerns and implies that AB 40 would have
the effect of criminalizing common dementia-related behaviors;
"Under this bill, a care provider who witnesses an 82 year old
assisted living resident with advanced Alzheimer's disease push
another resident would be required to contact the police."
FISCAL EFFECT : Unknown.
REGISTERED SUPPORT / OPPOSITION :
Support
The Arc of California
California Advocates for Nursing Home Reform (CANHR)
California Commission on Aging (CCoA)
California District Attorneys Association(CDAA)
California Police Chiefs Association
California Senior Legislature (CSL)
Contra Costa County Advisory Council on Aging
Crime Victims United of California (CVUC)
San Luis Obispo County Adult Abuse Prevention Council
Opposition
California Association of Health Facilities (CAHF)
California Association of Marriage and Family Therapists
California Hospital Association
Concerns
California Assisted Living Association (CALA)
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990
AB 40
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