BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 40|
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THIRD READING
Bill No: AB 40
Author: Yamada (D)
Amended: 8/23/12 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 7-0, 6/12/12
AYES: Liu, Emmerson, Berryhill, Hancock, Strickland,
Wright, Yee
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/16/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
ASSEMBLY FLOOR : 58-18, 5/23/11 - See last page for vote
SUBJECT : Elder and dependent adult abuse: reporting
SOURCE : Author
DIGEST : This bill requires mandated reporters of elder
or dependent adult abuse to report suspected crimes of
physical abuse which are believed to have occurred in a
long-term care facility to local law enforcement within two
hours, with follow up written reports to both the law
enforcement entity and the Long Term Care Ombudsman (LTCO),
as well as to the appropriate licensing agency. In cases
of suspected abuse where the perpetrator has a diagnosis of
dementia and the injury is not significant, permits the
mandated reporter to determine, based upon his or her
training experience, whether to report to local law
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enforcement or the LTCO. Existing law requires mandated
reporters of elder and dependent adult abuse to report to
either the LTCO or local law enforcement.
Senate Floor Amendments of 8/23/12 address chaptering
conflicts with
SB 1051 (Liu).
ANALYSIS : The Elder Abuse and Dependent Adult Civil
Protection Act establishes various procedures for the
reporting, investigation, and prosecution of elder and
dependent adult abuse. The Act requires certain persons,
called mandated reporters, to report known or suspected
instances of elder or dependent adult abuse. The Act
requires a mandated reporter, and authorizes any person who
is not a mandated reporter, to report the abuse to the
local ombudsman or the local law enforcement agency if the
abuse occurs in a long-term care facility. Failure to
report physical abuse and financial abuse of an elder or
dependent adult under the Act is a misdemeanor.
This bill requires that, if the suspected abuse results in
serious bodily injury, as defined, a mandated reporter make
a telephone report to report suspected or alleged physical
abuse, as defined, that occurs in a long-term care
facility, to the local law enforcement agency, immediately,
and no later than within two hours of the reporter
observing, obtaining knowledge of, or suspecting the
physical abuse. This bill requires that a written report
be made to the local ombudsman, the corresponding licensing
agency, and the local law enforcement agency within two
hours of the reporter observing, obtaining knowledge of, or
suspecting the physical abuse. This bill requires that, if
the suspected abuse does not result in serious bodily
injury, a mandated reporter make a report by telephone and
in writing within 24 hours of the reporter observing,
obtaining knowledge of, or suspecting the physical abuse,
as specified.
Existing 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
occurred in a state mental hospital or a state
developmental center, to report to the designated
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investigator of the State Department of State Hospitals or
the State Department of Developmental Services or to a
local law enforcement agency or to the local ombudsman.
This bill deletes the local ombudsman from the list of
persons to whom the mandated reporter may report under
these circumstances. This bill authorizes a person who is
not a mandated reporter to report suspected or alleged
abuse that occurred in a long-term care facility to both a
long-term care ombudsman program or local law enforcement
agency.
According to the staff of the Assembly Aging and Long Term
Care Committee:
Originally introduced to overcome a conflict of mandates
within the Ombudsman program. Federal authorization
imposes a strict confidentiality standard under which,
no personally identifying information acquired during a
complaint investigation may be released by the Ombudsman
program to anyone (including law enforcement) without
the written consent of the subject of the report. 70%+
of people living in long-term care facilities have
limited capacity to give consent. So, when criminal
level reports of abuse are reported to the Ombudsman,
that information typically stays with the Ombudsman, and
a criminal investigation never takes place, justice is
not attained.
Since AB 40 introduction, a new reporting protocol has
been promulgated as a result of the federal "Elder
Justice Act." This new protocol-specific to nursing
homes -requires that criminal level abuse be reported to
law enforcement-not the Ombudsman.
So, while in the Senate, a stake-holder process was
undertaken to use AB 40 codify the Elder Justice Act
protocol into California's reporting statutes. The
result is a compromise that everyone involved agreed to,
and it greatly improves reporting of criminal level
abuse. Under AB40:
Acts of criminal abuse (those incidents described
in 15610.63 + abandonment, abduction, isolation,
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financial abuse or neglect) must be reported to law
enforcement within 2 hours if there is serious bodily
injury, otherwise 24 hours, and follow-up written
reports must be made to the licensing agency, law
enforcement, and Ombudsman-this overcomes the
confidentiality barrier because everyone gets the
same information at the same time-this is a federal
requirement under the Elder Justice Act which we are
codifying into state statute.
We then extend that reporting protocol via state
law from nursing homes only, to nursing homes and
assisted living/RCFEs-so one protocol for the entire
continuum of long-term care facilities.
We also streamline the reporting process. When a
report is made under this protocol, the "incident
report" required of the facility need not be
made-this is because the licensing agency already
gets the written report, so we eliminate a redundant
reporting mandate.
We also carve out incidents between demented
individuals that do not result in injury-agitation
and aggressiveness are known symptoms of dementia,
and residents often interact with each other which
could result in a slap, or a shove-we exempt these
incidents from this reporting protocol-though reports
are still required-just not under the new aggressive
protocol. They are reported under existing protocol.
We encourage the Ombudsman and Law Enforcement to
collaborate on the most appropriate immediate
response-sometimes, law enforcement is not necessary
and Ombudsman can make the initial response. Upon
their assessment, they can determine whether law
enforcement's involvement is necessary.
We also define "Serious Bodily Injury" using the
Elder Justice Act definition.
For all other incidents that warrant a report, the
protocol remains the same-no changes.
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Background
Ombudsman and elder and dependent adult abuse reporting .
The state's LTCO program is administered through the
Department of Aging and 35 local programs contracted
through the network of local area agencies on aging. 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 Department of Aging's Web site, 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.
In April 2010, Disability Rights California, Investigations
Unit, issued a report that documented several problems with
elder and dependent adult abuse reporting and investigation
in nursing homes, which are one type of long-term care
facility. Of the findings, the report stated that reports
of criminal abuse are frequently made to the LTCO and are
never referred to law enforcement, and criminal
investigations are not thorough and produce insufficient
evidence for prosecution. In several of its case studies,
it appeared that physical evidence was not gathered in a
timely way, which weakened evidence sufficient for
prosecution.
In November 2009, the California State Senate Office of
Oversight and Outcomes, a non-partisan team from the office
of the Senate President pro Tempore that investigates and
measures government performance, issued a 47-page report
entitled, California's Elder Abuse Investigators: Ombudsmen
Shackled by Conflicting Laws and Duties, highlighting the
role of the ombudsman in investigating instances of abuse
and its inherent limitations, due to consent requirements
for ombudsman under federal law, among other factors.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
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According to the Senate Appropriations Committee:
One-time minor costs for the Department of Social
Services and Department of Public Health 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 increase in reports to law enforcement and
subsequent prosecutions.
SUPPORT : (Verified 8/16/12)
AFSCME
California Advocates for Nursing Home Reform
California Association of Health Facilities
California Long-Term Care Ombudsman Association
California School Employees Association
Catholic Charities Diocese of Stockton
Congress of California Seniors
Consumer Federation of California
Crime Victims United of California
Disability Rights California
Fresno Madera Ombudsman Program
Long Term Care Ombudsman Services of San Luis Obispo County
National Association of Social Workers
Office of the State Long-Term Ombudsman
Ombudsman Program of Lake and Mendocino Counties
Ombudsman Services of Contra Costa
Ombudsman Services of Northern California
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Ombudsman Services of Northern California in Placer County
The Arc and United Cerebral Palsy in California
ARGUMENTS IN SUPPORT : The author's office states that
the State LTCO program operates under two conflicting
mandates: federal law prohibits any disclosure of personal
information pertaining to an ombudsman program client,
unless the client provides written consent; while state law
mandates cross reporting of abuse reports with local law
enforcement, in order to assure resolution. The author's
office asserts that this conflict is causing criminal abuse
and neglect to persist, because ombudsman employees and
volunteers are unable to share the contents of their
reports with law enforcement. The author's office
highlights that the consent issue is exacerbated by the
high number of long-term care facility residents-up to 65%,
who have diminished capacity and are unable to provide
consent.
ASSEMBLY FLOOR : 58-18, 5/23/11
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer,
Fletcher, Fong, Fuentes, Furutani, Galgiani, Gatto,
Gordon, Hagman, Hall, Harkey, Hayashi, Roger Hern�ndez,
Hill, Huber, Hueso, Huffman, Jeffries, Lara, Bonnie
Lowenthal, Ma, Mendoza, Mitchell, Monning, Nestande,
Perea, V. Manuel P�rez, Portantino, Skinner, Solorio,
Swanson, Torres, Wieckowski, Williams, Yamada, John A.
P�rez
NOES: Conway, Donnelly, Beth Gaines, Garrick, Grove,
Halderman, Jones, Knight, Logue, Mansoor, Miller,
Morrell, Nielsen, Norby, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Cook, Gorell, Olsen, Pan
CTW/DLW:dmd 8/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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