BILL ANALYSIS �
AB 2149
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2149 (Butler) - As Introduced: February 23, 2012
FOR FURTHER AMENDMENT AND VOTE ONLY
SUBJECT : Elder and Dependent Adult Abuse: Settlement: Gag
Order
KEY ISSUE : Should settlement agreements in civil actions
alleging elder and dependent adult abuse be prohibited from
containing "gag order" provisions that prohibit a party from
contacting, reporting to, or cooperating with agencies tasked
with protecting elderly and dependent adults?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would prohibit so-called "gag clauses" in the
settlement of any civil action alleging abuse or neglect of an
elder or dependent adult. In addition to facing possible
criminal charges and penalties, a person who abuses an elder or
dependent adult is also subject to damages in civil action
brought by the victim or the victim's survivors. According to
the author, defendants in abuse cases sometimes persuade victims
to accept agreements that limit the victim's ability to make
reports to, contact, or cooperate with various law enforcement
agencies, Adult Protective Services, or other local or state
agencies. These agreements, the author contends, protect
abusers from facing further investigation or prosecution that
might protect other elders or dependent adults; indeed, such
agreements may even prevent the state from collecting accurate
data about the scope of the problem. Existing law disfavors and
makes unenforceable confidential settlement agreements in cases
alleging abuse of an elder or dependent adult. Consistent with
that aim, this bill similarly seeks to prevent the use of
settlement agreements as a way of shielding unlawful behavior.
Opponents contend that this bill will discourage settlements and
lead to more drawn out litigation, and that in the absence of
any evidence of coercion, parties should be free to enter into
reasonable and legal agreements as they see fit. As now
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proposed to be amended, the bill makes clear that a person
contacting specified agencies must have a good faith belief that
the information is relevant to the concerns, duties, or
obligations of that entity.
SUMMARY : Prohibits a settlement agreement in a civil action
alleging elder or dependent adult abuse, as defined, from
containing any provision that prevents any party from reporting
to, cooperating with, or otherwise contacting specified
government agencies. Specifically, this bill :
1)Provides that an agreement to settle a civil action for
physical abuse, neglect, or financial abuse of an elder or
dependent adult shall not include any of the following
provisions, whether the agreement is made before or after
filing the action:
a) A provision that prohibits any party to the dispute from
contacting or cooperating with the county adult protective
services agency, the local law enforcement agency, the
long-term care ombudsman, the California Department of
Aging, the Department of Justice, or the Licensing and
Certification Division of the State Department of Public
Health.
b) A provision that prohibits any party to the dispute from
filing a complaint with, or reporting any violation of law
to, the county adult protective services agency, the local
law enforcement agency, the long-term care ombudsman, the
California Department of Aging, the Department of Justice,
or the Licensing and Certification Division of the State
Department of Public Health.
c) A provision that requires any party to withdraw a
complaint he or she has filed with, or a violation he or
she has reported to, the county adult protective services
agency, the local law enforcement agency, the long-term
care ombudsman, the California Department of Aging, the
Department of Justice, or the Licensing and Certification
Division of the State Department of Public Health.
1)Provides that any provision described above is void as against
public policy.
EXISTING LAW :
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1)Permits, under the Elder Abuse and Dependent Adult Civil
Protection Act (EADACPA), victims of elder and dependent adult
abuse and neglect to bring a civil action and provides
enhanced penalties where a defendant is guilty of
recklessness, oppression, fraud, or malice in the commission
of abuse. (Welfare & Institutions Code Section 15657.)
2)Disfavors confidential settlement agreements in civil actions
alleging violations of EADACPA. Provides that such
confidential settlement agreements may not be recognized or
enforced unless the information made confidential is
privileged under existing law; is not evidence of abuse under
EADACPA; or the party seeking to make the information
confidential has demonstrated a substantial probability that
prejudice will result from disclosure of the information.
(Code of Civil Procedure Sections 2017.310.)
3)Makes it a crime for any person who knows or should know that
a person is an elder or dependent adult, to willfully cause or
permit any elder or dependent adult to suffer, or inflict
thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any elder or dependent adult, to
willfully cause or permit the elder or dependent adult to be
injured, or to willfully cause or permit the elder or
dependent adult to be placed in a situation in which his or
her person or health is endangered. Provides for fines or
incarceration, as specified. (Penal Code Section 368(b)-(c);
Welfare & Institutions Code Section 15656.)
4)Provides that any person who is not a caretaker and who
violates any provision of law proscribing theft, embezzlement,
forgery, fraud, or identify theft, with respect to the
property or personal identifying information of an elder or a
dependent adult, and who knows, or reasonably should know,
that the victim is an elder or a dependent adult, is
punishable by fine or incarceration, or both, as specified.
(Penal Code Section 368(d).)
5)Provides that any person who is a caretaker of an elder or a
dependent adult who violates any provision of law prescribing
theft or embezzlement, with respect to the property of that
elder or dependent adult, is punishable by fine or
incarceration, or both, as specified. (Welfare & Institutions
Code Section 15656(c).)
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COMMENTS : Although the California Penal Code makes physical or
financial abuse of an elder or dependent adult a crime, the
Elder Abuse and Dependent Adult Civil Protection Act (EADACPA)
also permits elderly and dependent adult victims of abuse to
bring civil actions against their abusers and provides enhanced
remedies under certain circumstances. Overall, EADACPA reflects
the Legislature's intent to encourage private, civil enforcement
of laws against elder and dependent adult abuse and neglect.
(See e.g. In re National Western Life Insurance (2010) 268
F.R.D. 652.) Both the civil actions permitted by EADACPA, as
well as the criminal penalties provided under the Penal Code,
serve the state's overall goal of protecting a particularly
vulnerable portion of the state's population from abuse and
neglect. (See e.g. Delaney v. Baker (1999) 20 Cal. 4th 23.)
The mutually reinforcing aims of these civil and criminal
provisions is highly relevant to this bill before the Committee,
because restrictive provisions in civil settlements can
potentially impede the state's overall ability to identify,
investigate, and prosecute criminal violations. An agreement to
settle a civil action does not shield the alleged abuser from
criminal charges; the Legislature clearly intended the EADACPA
provisions to supplement, not supplant, criminal prosecutions.
According to the author, this bill seeks to prohibit the use of
so-called "gag clauses" in settlement agreements involving
allegations of elder and dependent adult abuse. Specifically,
the author is concerned about situations in which the alleged
abuser asks the plaintiff to sign a settlement agreement that
prohibits the victim or the victim's family from filing a
report, contacting or cooperating with Adult Protective
Services, law enforcement agencies, or any other local or state
agencies that are tasked with protecting elders and dependent
adults from abuse and neglect. According to the several
agencies that have written in support of this bill, these
clauses often frustrate efforts to identify, investigate, and,
if necessary, prosecute abusers.
This bill, therefore, would prohibit any agreement to settle a
civil action alleging abuse or neglect of an elder or dependent
adult from containing a provision that prohibits a party to the
dispute from contacting certain enforcement and regulatory
agencies, provided that the person contacting one of these
entities has a good faith belief that the information is
relevant to the concerns, duties, or obligations of that entity.
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Specifically, this bill would prohibit the following: (1) any
provision that prohibits a party to the dispute from contacting
or cooperating with specified agencies; (2) any provision that
prohibits a party to the dispute from filing a complaint with,
or reporting any violation of law to, specified agencies; (3)
any provision that requires any party to the dispute to withdraw
a complaint filed with, or a violation reported to, specified
agencies. The specified agencies include county adult
protective services, local law enforcement agencies, the
long-term care ombudsman, the California Department of Aging,
the Department of Justice, or the Licensing and Certification
Division of the State Department of Public Health. The bill
would specify that such provisions are void as against public
policy.
Problem Goes beyond Parties to the Settlement : In light of
opposition claims that plaintiffs and defendants should be free
to make whatever agreements they like, it should be stressed
that settlement agreements in EADACPA actions have consequences
that go beyond the parties to the settlement. As noted by the
agencies writing in support of this bill, cases of abuse and
neglect are not always isolated incidents. For example, if one
elderly person has been abused or neglected in a skilled nursing
facility, there is a significant chance that others have been
similarly abused or neglected. As one of the regional ombudsmen
notes in its letter of support, gag clauses in settlement
agreements prevent law enforcement and other agencies from
combatting "systemic problems." Other elders and dependent
adults remain at risk because of these systemic problems, yet
they reap no benefit from the settlement between the parties.
Moreover, many of the agencies covered by this bill are
responsible for more than merely prosecuting wrong-doers; they
are also charged with identifying and monitoring instances of
abuse. Settlement agreements that prevent victims from
contacting, providing information to, or otherwise cooperating
with those agencies impede these other functions, as well as
prosecutorial functions.
Relationship to Existing Confidentiality Provisions : Opponents
of this bill contend that the problem that the author seeks to
address is already covered by an existing law that generally
prohibits confidential settlement agreements in elder and
dependent abuse or neglect cases. Specifically, AB 634
(Steinberg, Chapter 242 , Stats. of 2003) declared that
confidential settlements of civil actions arising under EADACPA
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were disfavored as a matter of public policy and, therefore,
were void unless the information kept confidential was
privileged under existing law; the information was not evidence
of abuse under EADACPA; or the party seeking to make the
information confidential could demonstrate that a substantial
probability of prejudice would result from disclosure of the
information. (Code of Civil Procedure Section 2017.310.)
However, opponents appear to confuse apples and oranges when
they suggest that the confidentiality provisions already address
the problem. The problem identified by the author is not that
the terms of the settlement agreement or the facts of the case
are made confidential. Rather, it is that provisions of the
agreement (whether open or confidential) prohibit a party from
taking some action, such as filing a complaint with, cooperating
with, or otherwise contacting certain agencies - even though
there is seemingly a strong public interest in those agencies
having that information.
ARGUMENTS IN SUPPORT : According to the bill's sponsor,
California Advocates for Nursing Home Reform (CANHR), this bill
will create a much-needed statewide policy against non-contact
and non-cooperation provisions in settlement agreements in civil
actions alleging elder or dependent adult abuse or neglect.
CANHR claims that abuse victims seeking civil remedies under
EADACPA "are sometimes asked to sign settlements agreements . .
. that prohibit the victim or the victim's family from
contacting or cooperating with entities such as Adult Protective
Services, local law enforcement or other governmental agencies."
As a result, CANHR claims, "many abusers never face further
investigation or prosecution." This bill, CANHR believes, will
enhance "the ability of government agencies to deter elder abuse
in California."
ARGUMENTS IN OPPOSITION : The Civil Justice Association of
California (CJAC) opposes this bill on the grounds that it "will
lead to additional unjustified litigation by limiting parties'
ability to settle a lawsuit by precluding a number of terms
anytime elder neglect is alleged." CJAC argues that under
existing law all settlements, like any contract, must be
voluntarily entered into and will not be enforced if one party
is coerced into accepting the settlement. CJAC also contends
that existing law already limits confidentiality provisions
where the information kept confidential is evidence of abuse.
More generally, CJAC contends that all parties should be free to
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settle disputes as they wish and that this bill will only
discourage settlements and thereby prolong costly litigation.
Aging Services of California (ASC), an association of non-profit
providers of assisted living and skilled nursing care for
elders, opposes this bill for many of the same reasons
articulated by CJAC. ASC sees no need for such a "sweeping"
proposal when voluntary settlement agreements have proven to be
an effective means of ending costly litigation. By forcing more
disputes to go to trial, ASC contends, this bill will only
increase the cost of liability insurance which will, in turn,
increase state Medi-Cal costs. ASC also claims that the
existing prohibition against confidential agreements already
provides sufficient protection.
The California Chamber of Commerce opposes this bill because it
is "largely duplicative of existing law." Like the ASC and
CJAC, the Chamber believes that the existing law provision
relating to confidentiality provides adequate protection against
settlements that shield wrong-doing. The Chamber also similarly
contends that this bill will discourage settlements and thereby
prolong litigation and its associated costs.
AUTHOR'S AMENDMENT :
On page 2, line 14, before the period, insert:
, provided that the person contacting one of these entities
has a good faith belief that the information is relevant to
the concerns, duties, or obligations of that entity
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (sponsor)
AFSCME
California Commission on Aging
California Senior Legislature
California State Association of Counties
California State Sheriffs' Association
Consumer Attorneys of California
County Welfare Directors Association of California
Ombudsman & HICAP Services of Northern California
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Opposition
Aging Services of California
California Chamber of Commerce
Civil Justice Association of California
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334