BILL ANALYSIS �
AB 367
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 367 (Smyth) - As Introduced: February 14, 2011
SUBJECT : Elder and Dependent Adult Abuse Reporting
SUMMARY : This bill allows mandated and non-mandated reporters
of elder and dependent adult abuse to report suspected elder and
dependent adult abuse occurring within a community to any Adult
Protective Services (APS) agency or law enforcement agency,
regardless of whether the agency lacks geographical or subject
matter jurisdiction or obligation to receive the report.
Specifically, this bill :
Permits mandated and other reporters of elder and dependent
adult abuse to report to any APS agency or law enforcement
agency, regardless of subject matter or geographical
jurisdiction.
Requires APS agencies and law enforcement agencies to accept a
report of elder or dependent adult abuse, even if they lack
subject matter or geographical jurisdiction, unless that agency
can immediately transfer the call to an agency with proper
jurisdiction.
Provides that if an agency outside the jurisdiction of the
report about a case of elder or dependent adult abuse accepts
the report, the agency shall immediately refer the case by
phone, fax, or "electronic transmission" to the appropriate
agency.
EXISTING LAW
1.Defines a "mandated reporter" as any person who has assumed
the care or responsibility of an elder, or the care or
responsibility for "dependent adults," as well as,
administrators, supervisors and licensed staff in care
facilities, health care providers, the clergy, APS staff and
law enforcement.
2.Defines "physical abuse," "abandonment," "abduction,"
"isolation," "financial abuse and neglect" for purposes of
elder and dependent adult abuse reporting.
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3.Requires mandated reporters to report physical abuse,
abandonment, abduction, isolation, financial abuse or neglect.
4.Requires mandated reporters to report to the local APS agency
or local law enforcement when the abuse, abandonment,
abduction, isolation, financial abuse or neglect occurs in the
community.
5.Requires mandated reporters to report to the local ombudsman
office or law enforcement if abuse, abandonment, abduction,
isolation, financial abuse or neglect occurred in a long-term
care facility.
6.Provides that failure to report elder abuse under the mandated
reporting requirements is a misdemeanor, and punishable by up
to six months in a county jail, by a fine of up to $1,000, or
both. Failure to report abuse that results in a death or
great bodily injury may result in up to one year in a county
jail, a fine of up to $5,000, or both.
7.Defines an elder as any person residing in this state who is
65 years of age or older.
8.Defines "dependent adult" as any person between the ages of 18
and 64 who resides in this state and who has physical or
mental limitations that restrict his or her ability to carry
out normal activities or to protect his or her rights, such
as: persons who have physical or developmental disabilities or
whose physical or mental abilities have diminished because of
age.
FISCAL EFFECT : Unknown
COMMENTS :
Need for the bill
The author states that AB 367 is needed because it "...seeks to
ease the reporting process in cases of suspected elder abuse."
The author states that reporters can get referred and
re-referred between agencies when jurisdiction is not clear. In
order to support reporters, the author is proposing a new code
section that directs agencies "lacking subject matter or
geographical jurisdiction" to accept those reports, perform
research to determine the appropriate agency with jurisdiction
and the appropriate agency's contact information, then refer
those reports to the appropriate agency.
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The author's statement reads as follows:
"When reporting a case of elder or dependent adult abuse,
mandated reporters may be sent from agency to agency, forced to
navigate local and county bureaucracies. For example, if the
suspected abuser lives out of the reporter's area, or even if
the investigation will be conducted out of this area, the
reporter is forced to expend valuable time and resources
tracking down the appropriate authority. Sadly, this
time-consuming obstacle can impede the prompt reporting of
suspected abuse.
"Assembly Bill 367 alleviates this problem by applying to elder
and dependent adult abuse reporting a provision already used in
child abuse cases. With respect to child abuse and neglect,
current law requires that an abuse report be taken by an agency
that takes reports of child abuse and requires that agency to
refer the matter to an agency with proper jurisdiction (Penal
Code Section 11165.9).
"Similarly, this bill would require a county adult protective
services agency or a local law enforcement agency to accept a
report of suspected elder or dependent adult abuse to
immediately transfer or refer the report to an agency with
proper jurisdiction.
Supporters Argue
AB 367 assures those reports that are otherwise not investigated
because of a lack of jurisdiction, will be investigated because
the bill would insure that those reports are referred to the
correct agency, and it alleviates a mandated reporter's problem
of being directed to make a report with other agencies
AB 367 is needed because the economic environment demands
bolstered protections for dependent adults of all ages.
Opponents Argue
AB 367 is an unfunded mandate that requires APS and law
enforcement agencies to place properly reported cases aside and
spend time and resources relaying reports to agencies that
mandated reporters are now responsible for sending.
Expressions of concern
The California Welfare Director's Association recommends
amendments to help the author address two issues. First, to
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address the lack of clarity when a mandated reporter learns of
abuse in a different county, and second, when a mandated
reporter in California learns of abuse outside California.
Discussion
Existing law establishes the definition of "mandated reporters"
of elder and dependent adult abuse, as well as their legal
obligations. Since elder and dependent adult abuse became a
mandate in 1982, great care has been taken in assuring that the
codes remain functional and relevant given the projected and
existing growth of, and the unique challenges to, assuring
protection of the elderly and dependent adult populations.
Welfare and Institutions Code 15630 is a comprehensive mandate.
It establishes who mandated reporters are. It establishes the
scope of the mandated reporter's duty to report. It then lays
out who reports are made to, and the time frame in which to do
it, and what happens if they don't. In relation to those three
primary directives, WIC 15630 permits mandated reporters to
report abuse not defined in their primary mandate, provides
protections for clergy, and alternative reporting mandates for
health practitioners exercising clinical judgment, and long-term
care facility staff. It clarifies that mandated reporters are
not required to investigate, guides them when more than one
witness an incident, and assures APS and law enforcement work
together.
AB 367 adds a section to the Welfare and Institutions Codes
inspired by the child abuse reporting statutes to address the
frustrations that some mandated reporters of elder and dependent
adult abuse have experienced with regard to jurisdiction.
Questions:
Does AB 367 create unintentional confusion in mandated reporter
statutes? AB 367 may unintentionally create confusion by adding
additional codes with new concepts relative to jurisdiction,
instead of amending existing code. The individual mandate seems
to have migrated from a "shall" in current law (WIC 15630) to a
"may" in AB 367 when mandated reporters unintentionally reach an
APS or law enforcement office outside the appropriate reporting
jurisdiction. It appears AB 367 may create an option to report
when jurisdiction is in question. AB 367 requires county APS
offices to receive such reports, but then uses the optional "if"
instead of "when" in directing a county APS offices' next steps
in the effort to assure the report is directed to the
appropriate jurisdiction. Could a mandated reporter 'drop'
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reports on any APS office to relieve themselves of their duty in
order to avoid the minimal research necessary to direct their
reports to the correct agency?
AB 367 adds WIC 15631.5 which also uses such undefined terms as
"subject matter or geographical jurisdiction," (page 2, line 10)
and "electronic transmission," (Page 2, line 20). The proposed
new section may actually unintentionally contribute to the
confusion and frustration that not only reporters experience,
but additional frustration and confusion for victims and
families of victims who are placing their trust in the reporting
system to facilitate justice. The author may wish to consider
amending existing statutes, WIC 15630, the code section dealing
with mandated reporting, and WIC 15631, the section dealing with
permissive reporting in order to address his concern. Given
the extensive number of potential stakeholders, an effort to
bring them together to develop a workable and collaborative
solution would be recommended.
What impact will AB 367 have on the existing APS reporting
system and law enforcement? Since 2000, APS agencies throughout
the state have endured $15 million in general fund reductions as
part of a total reduction of $28.1 million. During that period,
the elderly population has increased from 3.2 million to about
4.2 million today. Requiring APS agencies and law enforcement
agencies to take on the additional responsibilities of
researching and referring reports to the appropriate agency will
divert resources currently devoted to bringing justice to abused
elders and dependent adults. Any increase to APS workload, such
as new research and referral obligations, will likely place more
burdens on an already burdened system. Given the economic
climate and the likelihood of cuts at both the state and local
levels, this may not be the time to be adding increased duties
upon APS and law enforcement personnel.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Marriage & Family Therapists -
sponsors
California Senior Legislature (CSL)
Opposition
California Advocates for Nursing Home Reform (CANHR)
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Concerns
County Welfare Directors Association of California (CWDA)
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990