BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 40 (Yamada) - Elder and dependent adult abuse reporting.
Amended: June 18, 2012 Policy Vote: Human Services 7-0
Urgency: No Mandate: Yes
Hearing Date: August 16, 2012
Consultant: Jolie Onodera
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: AB 40 would revise mandated reporting procedures
to require mandated reporters of elder or dependent adult abuse
to report by telephone suspected crimes of physical abuse
resulting in serious bodily injury in long-term care facilities,
as specified, to local law enforcement within two hours.
Subsequent to the initial telephone report, this bill would
require a written report to be provided to the local ombudsman,
the corresponding licensing agency, and the local law
enforcement agency within 24 hours of the suspected or alleged
abuse. This bill requires local law enforcement agencies that
receive reports of suspected abuse in a long-term care facility
to coordinate efforts with the local ombudsman to provide the
most immediate and appropriate response warranted to investigate
the mandated report.
Fiscal Impact:
One-time minor costs for the Department of Social
Services (DSS) and Department of Public Health (DPH) to
develop instructions to implement the revised reporting
requirements.
Potential cost pressure on state agencies to provide
training/guidance to ombudsmen and mandated reporters on
the revised reporting requirements.
Non-reimbursable local enforcement costs associated with
increased investigation of elder abuse reports offset to a
degree by fine revenue.
Ongoing costs to the Judicial Branch, potentially in the
range of $25,000 to $50,000 (General Fund) for additional
misdemeanor and felony court filings.
Potential ongoing increased local and state
incarceration costs in excess of $100,000 statewide to the
extent the provisions of this bill result in a significant
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increase in reports to law enforcement and subsequent
prosecutions.
Background: Existing law under the Elder Abuse and Dependent
Adult Civil Protection Act establishes procedures for the
reporting, investigation, and prosecution of elder and dependent
adult abuse. The act requires mandated reporters to report known
or suspected instances of elder or dependent adult abuse or
neglect that has occurred in a long-term care facility, except a
state developmental center or state mental health hospital, to
either the local ombudsmen or local law enforcement agency.
Failure to report physical abuse or neglect or financial abuse
of an elder or dependent adult under the act, with specified
exceptions, is a misdemeanor.
Existing law requires the local ombudsman or the local law
enforcement agency to, as soon as practicable except immediately
in the case of an emergency, report known or suspected abuse to
1) the appropriate state departments with regulatory oversight
of the long term care facility, as specified, 2) the Bureau of
Medi-Cal Fraud and Elder Abuse of any case of known or suspected
criminal activity, and, 3) all cases of known or suspected
physical abuse and financial abuse to the local district
attorney's office in the county where the abuse occurred.
Existing federal law generally prohibits ombudsmen from
disclosing personal information pertaining to an ombudsman
client without a client's written consent. A November 2009
report by the Senate Office of Oversight and Outcomes (SOOO)
entitled California's Elder Abuse Investigators: Ombudsmen
Shackled by Conflicting Law and Duties, identified the
difficulties encountered by local ombudsmen in their duties to
receive and investigate mandated reports of abuse but being
bound by federal law to obtain consent from long-term care
residents prior to releasing names or forwarding complaints to
other agencies. The report noted that three-quarters of
residents who made abuse and neglect complaints refused to
consent to release of their identities.
Existing federal law under the Patient Protection and Affordable
Care Act of 2010 (Pubic Law 111-148), amended the Elder Justice
Act of 2009 (EJA), which mandates the reporting of any
reasonable suspicion of a crime, as defined, to the Secretary of
the Health and Human Services and one or more law enforcement
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entities by any owner, operator, employee, manager, agent, or
contractor of a long-term care facility that receives federal
Medicaid/Medicare funds (skilled nursing facilities) of at least
$10,000 during the preceding year of the following:
If the events that cause the suspicion result in serious
bodily injury, the individual shall report the suspicion
immediately, but not later than two hours after forming the
suspicion.
If the events that cause the suspicion do not result in
serious bodily injury, the individual shall report the
suspicion not later than 24 hours after forming the
suspicion.
A violation of the above reporting requirements is subject to a
civil money penalty of not more than $200,000, or not more than
$300,000 if the violation exacerbates the harm to the victim of
the crime or results in harm to another individual. Moreover,
the facility may be excluded from participation in any federal
health care program and ineligible to receive federal funds.
Existing state law authorizes a 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, may report the
known or suspected instance of abuse. If the suspected abuse
occurred in a long term care facility other than a state mental
hospital or a state developmental center, the report may be made
to the local ombudsman. If the suspected abuse occurred in a
state mental 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.
Proposed Law: This bill seeks to generally align state reporting
requirements to law enforcement of elder abuse and neglect in
all long-term care facilities with the federal reporting
requirements for skilled nursing facilities under the EJA.
Specifically, this bill:
Requires, if the suspected abuse is physical abuse and
results in serious bodily injury, a single initial
telephone report be made to local law enforcement within
two hours of the mandated reporter observing, obtaining
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knowledge of, or suspecting the abuse, and a written report
be made to the local ombudsman, the corresponding licensing
agency, and the local law enforcement agency within 24
hours of the suspected abuse.
Requires, if the suspected abuse is physical abuse and
does not result in serious bodily injury, a telephone
report be made to local law enforcement within 24 hours of
observing, obtaining knowledge of, or suspecting the abuse,
and a written report be made to the local ombudsman, the
corresponding licensing agency, and the local law
enforcement agency within 24 hours of the suspected abuse.
Requires mandated reporters, when the suspected abuse is
allegedly caused by a resident with a physician's diagnosis
of dementia, and there is no significant or substantial
injury, as reasonably determined by the mandated reporter,
to report to the local ombudsman or local law enforcement
agency by telephone, in writing, or through the
confidential Internet reporting tool within two working
days.
Provides that reports made to law enforcement under
specified provisions of this bill shall be deemed to
satisfy the reporting requirements of the federal EJA,
Section 1418.91 of the Health and Safety Code (HSC), and 22
CCR 72541.
Requires local law enforcement agencies that receive
reports of suspected abuse in a long-term care facility to
coordinate efforts with the local ombudsman to provide the
most immediate and appropriate response warranted to
investigate the mandated report. This bill authorizes the
local ombudsman and local law enforcement agencies to
collaborate to develop protocols to implement.
Requires that if the suspected abuse is other than
physical abuse, the mandated reporter in a long-term care
facility shall report by telephone and written report to
the local ombudsman or the local law enforcement agency.
For a mandated reporter who has knowledge or reasonably
suspects elder abuse in a state mental hospital or a state
developmental center for which reports are not mandated,
but abuse has been inflicted upon an elder or that his or
her emotional well-being is endangered in any way, may no
longer report the suspected abuse to a local ombudsman, but
may continue to report to the designated investigator of
the Department of Mental Health (DMH) or Department of
Developmental Services (DDS) or to a local law enforcement
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agency.
For an individual who is not a mandated reporter, offers
the option of reporting suspected elder or dependent adult
abuse in a long-term care facility to both the local
ombudsman and law enforcement agency.
Prior Legislation: SB 110 (Liu) Chapter 617/2010 requires law
enforcement to retain exclusive responsibility for criminal
investigations against elders, dependent adults and persons with
disabilities when Adult Protective Services (APS) and local
ombudsmen are conducting concurrent investigations.
SB 718 (Vargas) Chapter 373/2011 authorizes mandated reporters
of elder and dependent adult abuse to make reports through a
confidential Internet reporting tool, as specified.
AB 1765 (Blakeslee) 2008 would have required a mandated reporter
in a long term care facility to report suspected abuse to both
the local ombudsman and the local law enforcement agency. This
bill was not heard in a policy committee.
AB 2100 (Wolk) Chapter 481/2008 requires the local ombudsman or
law enforcement agency to which a case of elder or dependent
adult abuse has been reported to report the cases of physical
and financial abuse to the local district attorney's office in
the county where the abuse occurred.
Staff Comments: Existing law requires local law enforcement to
cross-report to various entities and the ombudsman when
suspected or known abuse occurs in a long-term care facility.
This bill could significantly increase the number of initial
mandated reports to local law enforcement agencies that
previously were initially reported to local ombudsmen. According
to the 2009 SOOO report, between 6,400 and 7,100 reports
involving abuse or neglect were received in one year by local
ombudsmen statewide. Data from the Department of Aging for
2010-11 indicates the long-term care ombudsman received
approximately 6,000 complaints of abuse or neglect.
Additionally mandating local law enforcement to coordinate
efforts with local ombudsman to provide the most immediate and
appropriate response warranted could result in increased
workload and costs subject to reimbursement by the state.
Statewide costs are unknown at this time, but could be
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significant, and would be dependent upon the number of reports
received and the time and resources required in "coordinating
efforts" with local ombudsmen. Although the bill's provisions
only authorize the local ombudsmen and law enforcement agencies
to develop protocols, to the extent the development is
considered part of law enforcement's mandated requirement to
coordinate efforts, these costs could also be subject to
reimbursement by the state.
It is unclear how the mandate on local law enforcement, upon
initial receipt within two hours of an incident, to coordinate
efforts with local ombudsmen to provide the most immediate and
appropriate response warranted, might be operationalized. When
law enforcement receives an initial telephone report within two
hours of an event, there may be barriers to collaboration with
ombudsmen (for example, an event occurring during non-business
hours) precluding the most appropriate immediate response. To
address this issue, the author may wish to consider revising the
mandate on law enforcement upon initial reporting to make
allowances for such incidences.
By changing the scope of the existing misdemeanor crime for
failure to report, this bill could result in non-reimbursable
local costs for enforcement, offset to a degree by fine revenue.
Additionally, there could be some degree of cost pressure on
state agencies to provide training and/or guidance to ombudsmen
and mandated reporters in long-term care facilities on the
revised reporting requirements.
Due to the changes proposed under the provisions of this bill,
the Judicial Council may incur increased misdemeanor filings
related to a mandated reporter's failure to report an incident
of child abuse or neglect, as well as increased felony filings
for investigated reports of abuse that could lead to prosecution
and incarceration. The annual impact to the Judicial Branch
could range from approximately $25,000 to $50,000 for 50 new
misdemeanor or 25 felony filings per year.
Because the provisions of this bill will likely increase the
number of reports to local law enforcement, there will be
increased non-reimbursable costs for enforcement and
investigation. To the extent the provisions of this bill result
in additional criminal prosecutions could result in increased
state and local incarceration costs of an unknown amount, but
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potentially in excess of $100,000 annually.
Recommended Amendments: Staff recommends the following technical
amendments:
Add a reference to Section 1418.91 of the Health and Safety
Code in Section 1 of the bill.
Revise references in the bill to "great bodily injury" and
"substantial injury" to "serious bodily injury" for
consistency throughout the bill and add a cross reference to
the definition of "serious bodily injury," if appropriate, as
defined in Section 243 of the Penal Code.
Add a plural reference to department s in Section 1, WIC
section 15630(b)(1)(B), or specifically reference the DSS and
DPH to implement the bill's provisions by means of
non-regulatory action.
Under the existing structure of the bill, the cross reporting
requirements, including the requirement to report to the local
district attorney's office, could be interpreted to occur only
under reports of cases of abuse other than physical abuse. Staff
recommends an amendment to separately state the cross-reporting
requirements as a stand-alone paragraph or subparagraph to
ensure cross-reporting requirements are met both under instances
of physical, as well as non-physical, abuse and neglect.
It is unclear how the mandate on local law enforcement, upon
initial receipt within two hours of an incident, to coordinate
efforts with local ombudsmen to provide the most immediate and
appropriate response warranted, might be operationalized. When
law enforcement receives an initial telephone report within two
hours of an event, there may be barriers to collaboration with
ombudsmen (for example, an event occurring during non-business
hours) precluding the most appropriate immediate response. To
address this issue, the author may wish to consider revising the
mandate on law enforcement upon initial reporting to authorize
law enforcement and ombudsmen to develop protocols to address
any potential operational issues: "The local ombudsman and local
law enforcement agencies may collaborate to develop protocols to
coordinate efforts in order to provide the most immediate and
appropriate response warranted to investigate the mandated
report."
Staff notes that the provision of the bill authorizing mandated
reporters in long-term care facilities the option of reporting
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to the local ombudsman or local law enforcement agency for
incidences of suspected abuse allegedly caused by a resident
with a physician's diagnosis of dementia would not appear to
conform to federal requirements under the EJA for skilled
nursing facilities. The author may wish to consider an amendment
to clarify that this provision should not be construed to
relieve long-term facilities subject to federal reporting
requirements of the EJA, which mandates the reporting of any
reasonable suspicion of a crime to law enforcement, as
specified.
The proposed author amendments do the following:
Remove the reimbursable mandate on local law enforcement
agencies.
Ensure cross-reporting requirements are met both under
instances of physical, as well as non-physical, abuse and
neglect.
Define "serious bodily injury" for consistency
throughout the bill.
Make other technical changes.