California Senate Bill SB1051 Amended / Bill

 BILL NUMBER: SB 1051AMENDED BILL TEXT AMENDED IN SENATE MAY 10, 2012 AMENDED IN SENATE APRIL 17, 2012 AMENDED IN SENATE MARCH 28, 2012 INTRODUCED BY Senators Liu and Emmerson  (   Coauthors:   Senators   Anderson   and Strickland   )  FEBRUARY 8, 2012 An act to  amend Section 13010 of the Penal Code, and to  amend Sections 4427.5 and 15630 of, and to add Sections 4023 and 4415.5 to, the Welfare and Institutions Code, relating to public social services, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 1051, as amended, Liu. Reports of death, injury, and abuse: developmental centers and state hospitals: mandated reporters.  Existing law requires the Department of Justice, among other duties, to periodically review the requirements of units of government using criminal justice statistics, and to make recommendations for changes the department deems necessary in the design of criminal justice statistics systems, including new techniques of collection and processing made possible by automation.   This bill would require the department to include data regarding a crime victim's self-report of disability status in the criminal justice statistics, no later than at the next revision of the department's uniform crime report, as specified.  Existing law vests in the State Department of Developmental Services jurisdiction over state hospitals referred to as developmental centers for the provision of residential care to persons with developmental disabilities. Existing law requires a developmental center to immediately report all resident deaths and serious injuries of unknown origin to the appropriate local law enforcement agency. Existing law establishes the Office of Protective Services within the State Department of Developmental Services. This bill would rename a certain position within the Office of Protective Services as the Director of Protective Services, require the director to meet specified qualifications, and require that the director be appointed by and serve at the pleasure of the Secretary of California Health and Human Services, as specified. This bill would require the department to report certain events involving death or harm involving a developmental center resident to a designated protection and advocacy agency. The bill also would require the State Department of State Hospitals to report the same categories of events to the protection and advocacy agency, with respect to a resident of a state mental hospital. Existing law requires specified people, known as mandated reporters, to report cases of elder or dependent adult abuse, as defined. Failure to make a report as required by existing law is a misdemeanor. This bill would require mandated reporters in the State Department of Developmental Services to immediately report suspected abuse to the Office of Protective Services or to the local law enforcement agency. By creating new duties for local officials, this bill would impose a state-mandated local program. By expanding the scope of an existing crime, the bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason. With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 13010 of the Penal Code is amended to read: 13010. It shall be the duty of the department: (a) To collect data necessary for the work of the department from all persons and agencies mentioned in Section 13020 and from any other appropriate source. (b) To prepare and distribute to all those persons and agencies, cards, forms, or electronic means used in reporting data to the department. The cards, forms, or electronic means may, in addition to other items, include items of information needed by federal bureaus or departments engaged in the development of national and uniform criminal statistics. (c) To recommend the form and content of records which must be kept by those persons and agencies in order to ensure the correct reporting of data to the department. (d) To instruct those persons and agencies in the installation, maintenance, and use of those records and in the reporting of data therefrom to the department. (e) To process, tabulate, analyze, and interpret the data collected from those persons and agencies. (f) To supply, at their request, to federal bureaus or departments engaged in the collection of national criminal statistics data they need from this state. (g) To present to the Governor, on or before July 1st, an annual report containing the criminal statistics of the preceding calendar year and to present at other times as the Attorney General may approve reports on special aspects of criminal statistics. A sufficient number of copies of all reports shall be prepared to enable the Attorney General to send a copy to all public officials in the state dealing with criminals and to distribute them generally in channels where they will add to the public enlightenment. (h) (1) To periodically review the requirements of units of government using criminal justice statistics, and to make recommendations for changes it deems necessary in the design of criminal justice statistics systems, including new techniques of collection and processing made possible by automation. (2) To include in the criminal justice statistics, no later than at the next revision of the uniform crime report following the effective date of the act that added this paragraph, data regarding a crime victim's self-report of disability status.   SEC. 2.   SECTION 1.  Section 4023 is added to the Welfare and Institutions Code, to read: 4023. (a) The State Department of State Hospitals shall report to the agency  designated   described  in subdivision (i) of Section 4900 the following incidents involving a resident of a state mental hospital: (1) Any unexpected or suspicious death. (2) Any sexual assault allegation implicating the involvement of a state mental hospital employee or an employee of the Department of Corrections and Rehabilitation. (3) Any report made to the local law enforcement agency. (b) A report pursuant to this section shall be made no later than the close of the first business day following the discovery of the reportable incident.  SEC. 3.   SEC. 2.  Section 4415.5 is added to the Welfare and Institutions Code, to read: 4415.5. (a) The chief of the Office of Protective Services, who has the responsibility and authority to manage all protective service components within the department's law enforcement and fire protection divisions, including those at each state developmental center, shall be known as the Director of Protective Services. The director shall be an experienced law enforcement officer with a Peace Officers Standards and Training Management Certificate or higher, and with extensive management experience directing uniformed peace officer and investigation operations. (b) The Director of Protective Services shall be appointed by, and shall serve at the pleasure of, the Secretary of California Health and Human Services.  SEC. 4.   SEC. 3.  Section 4427.5 of the Welfare and Institutions Code is amended to read: 4427.5. (a) (1) A developmental center shall immediately report all resident deaths and serious injuries of unknown origin to the appropriate local law enforcement agency, which may, at its discretion, conduct an independent investigation. (2) The reporting requirements of this subdivision are in addition to, and do not substitute for, the reporting requirements of mandated reporters. (b) (1) The department shall report to the agency  designated   described  in subdivision (i) of Section 4900 any of the following incidents involving a resident of a developmental center: (A) Any unexpected or suspicious death. (B) Any sexual assault allegation implicating the involvement of a developmental center or department employee. (C) Any report made to the local law enforcement agency. (2) A report pursuant to this subdivision shall be made no later than the close of the first business day following the discovery of the reportable incident. (c) The department shall do both of the following: (1) Annually provide written information to every developmental center employee regarding all of the following: (A) The statutory and departmental requirements for mandatory reporting of suspected or known abuse. (B) The rights and protections afforded to individuals' reporting of suspected or known abuse. (C) The penalties for failure to report suspected or known abuse. (D) The telephone numbers for reporting suspected or known abuse or neglect to designated investigators of the department and to local law enforcement agencies. (2) On or before August 1, 2001, in consultation with employee organizations, advocates, consumers, and family members, develop a poster that encourages staff, residents, and visitors to report suspected or known abuse and provides information on how to make these reports.  SEC. 5.   SEC. 4.  Section 15630 of the Welfare and Institutions Code is amended to read: 15630. (a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter. (b) (1) Any mandated reporter who, in his or her professional capacity, or within the scope of his or her employment, has observed or has knowledge of an incident that reasonably appears to be physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced behavior, including an act or omission, constituting physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect, or reasonably suspects that abuse, shall report the known or suspected instance of abuse by telephone or through a confidential Internet reporting tool, as authorized by Section 15658, immediately or as soon as practicably possible. If reported by telephone, a written report shall be sent, or an Internet report shall be made through the confidential Internet reporting tool established in Section 15658, within two working days, as follows: (A) If the abuse has occurred in a long-term care facility, except a state mental health hospital or a state developmental center, the report shall be made to the local ombudsperson or the local law enforcement agency. The local ombudsperson and the local law enforcement agency shall, as soon as practicable, except in the case of an emergency or pursuant to a report required to be made pursuant to clause (v), in which case these actions shall be taken immediately, do all of the following: (i) Report to the State Department of Public Health any case of known or suspected abuse occurring in a long-term health care facility, as defined in subdivision (a) of Section 1418 of the Health and Safety Code. (ii) Report to the State Department of Social Services any case of known or suspected abuse occurring in a residential care facility for the elderly, as defined in Section 1569.2 of the Health and Safety Code, or in an adult day care facility, as defined in paragraph (2) of subdivision (a) of Section 1502. (iii) Report to the State Department of Public Health and the California Department of Aging any case of known or suspected abuse occurring in an adult day health care center, as defined in subdivision (b) of Section 1570.7 of the Health and Safety Code. (iv) Report to the Bureau of Medi-Cal Fraud and Elder Abuse any case of known or suspected criminal activity. (v) Report 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. (B) If the suspected or alleged abuse occurred in a state mental hospital or a state developmental center, the report shall be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services, or to the local law enforcement agency. (i) Except in an emergency, the local law enforcement agency shall, as soon as practicable, report any case of known or suspected criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse. (ii) Mandated reporters of the State Department of Developmental Services shall immediately report suspected abuse to the Office of Protective Services or to the local law enforcement agency. (C) If the abuse has occurred any place other than one described in subparagraph (A), the report shall be made to the adult protective services agency or the local law enforcement agency. (2) (A) A mandated reporter who is a clergy member who acquires knowledge or reasonable suspicion of elder or dependent adult abuse during a penitential communication is not subject to paragraph (1). For purposes of this subdivision, "penitential communication" means a communication that is intended to be in confidence, including, but not limited to, a sacramental confession made to a clergy member who, in the course of the discipline or practice of his or her church, denomination, or organization is authorized or accustomed to hear those communications and under the discipline tenets, customs, or practices of his or her church, denomination, or organization, has a duty to keep those communications secret. (B) Nothing in this subdivision shall be construed to modify or limit a clergy member's duty to report known or suspected elder and dependent adult abuse when he or she is acting in the capacity of a care custodian, health practitioner, or employee of an adult protective services agency. (C) Notwithstanding any other provision in this section, a clergy member who is not regularly employed on either a full-time or part-time basis in a long-term care facility or does not have care or custody of an elder or dependent adult shall not be responsible for reporting abuse or neglect that is not reasonably observable or discernible to a reasonably prudent person having no specialized training or experience in elder or dependent care. (3) (A) A mandated reporter who is a physician and surgeon, a registered nurse, or a psychotherapist, as defined in Section 1010 of the Evidence Code, shall not be required to report, pursuant to paragraph (1), an incident where all of the following conditions exist: (i) The mandated reporter has been told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect. (ii) The mandated reporter is not aware of any independent evidence that corroborates the statement that the abuse has occurred. (iii) The elder or dependent adult has been diagnosed with a mental illness or dementia, or is the subject of a court-ordered conservatorship because of a mental illness or dementia. (iv) In the exercise of clinical judgment, the physician and surgeon, the registered nurse, or the psychotherapist, as defined in Section 1010 of the Evidence Code, reasonably believes that the abuse did not occur. (B) This paragraph shall not be construed to impose upon mandated reporters a duty to investigate a known or suspected incident of abuse and shall not be construed to lessen or restrict any existing duty of mandated reporters. (4) (A) In a long-term care facility, a mandated reporter shall not be required to report as a suspected incident of abuse, as defined in Section 15610.07, an incident where all of the following conditions exist: (i) The mandated reporter is aware that there is a proper plan of care. (ii) The mandated reporter is aware that the plan of care was properly provided or executed. (iii) A physical, mental, or medical injury occurred as a result of care provided pursuant to clause (i) or (ii). (iv) The mandated reporter reasonably believes that the injury was not the result of abuse. (B) This paragraph shall not be construed to require a mandated reporter to seek, nor to preclude a mandated reporter from seeking, information regarding a known or suspected incident of abuse prior to reporting. This paragraph shall apply only to those categories of mandated reporters that the State Department of Public Health determines, upon approval by the Bureau of Medi-Cal Fraud and Elder Abuse and the state long-term care ombudsperson, have access to plans of care and have the training and experience necessary to determine whether the conditions specified in this section have been met. (c) (1) Any 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, or that his or her emotional well-being is endangered in any other way, may report the known or suspected instance of abuse. (2) If the suspected or alleged abuse occurred in a long-term care facility other than a state mental health hospital or a state developmental center, the report may be made to the long-term care ombudsperson program. Except in an emergency, the local ombudsperson shall report any case of known or suspected abuse to the State Department of Public Health and any case of known or suspected criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is practicable. (3) If the suspected or alleged abuse occurred in a state mental health 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 ombudsperson. Except in an emergency, the local ombudsperson and the local law enforcement agency shall report any case of known or suspected criminal activity to the Bureau of Medi-Cal Fraud and Elder Abuse, as soon as is practicable. (4) If the suspected or alleged abuse occurred in a place other than a place described in paragraph (2) or (3), the report may be made to the county adult protective services agency. (5) If the conduct involves criminal activity not covered in subdivision (b), it may be immediately reported to the appropriate law enforcement agency. (d) When two or more mandated reporters are present and jointly have knowledge or reasonably suspect that types of abuse of an elder or a dependent adult for which a report is or is not mandated have occurred, and when there is agreement among them, the telephone report or Internet report, as authorized by Section 15658, may be made by a member of the team selected by mutual agreement, and a single report may be made and signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report. (e) A telephone report or Internet report, as authorized by Section 15658, of a known or suspected instance of elder or dependent adult abuse shall include, if known, the name of the person making the report, the name and age of the elder or dependent adult, the present location of the elder or dependent adult, the names and addresses of family members or any other adult responsible for the elder's or dependent adult's care, the nature and extent of the elder' s or dependent adult's condition, the date of the incident, and any other information, including information that led that person to suspect elder or dependent adult abuse, as requested by the agency receiving the report. (f) The reporting duties under this section are individual, and no supervisor or administrator shall impede or inhibit the reporting duties, and no person making the report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting, ensure confidentiality, and apprise supervisors and administrators of reports may be established, provided they are not inconsistent with this chapter. (g) (1) Whenever this section requires a county adult protective services agency to report to a law enforcement agency, the law enforcement agency shall, immediately upon request, provide a copy of its investigative report concerning the reported matter to that county adult protective services agency. (2) Whenever this section requires a law enforcement agency to report to a county adult protective services agency, the county adult protective services agency shall, immediately upon request, provide to that law enforcement agency a copy of its investigative report concerning the reported matter. (3) The requirement to disclose investigative reports pursuant to this subdivision shall not include the disclosure of social services records or case files that are confidential, nor shall this subdivision be construed to allow disclosure of any reports or records if the disclosure would be prohibited by any other provision of state or federal law. (h) Failure to report, or impeding or inhibiting a report of, physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of this section, is a misdemeanor, punishable by not more than six months in the county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. Any mandated reporter who willfully fails to report, or impedes or inhibits a report of, physical abuse, as defined in Section 15610.63, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, in violation of this section, where that abuse results in death or great bodily injury, shall be punished by not more than one year in a county jail, by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment. If a mandated reporter intentionally conceals his or her failure to report an incident known by the mandated reporter to be abuse or severe neglect under this section, the failure to report is a continuing offense until a law enforcement agency specified in paragraph (1) of subdivision (b) of Section 15630 discovers the offense. (i) For purposes of this section, "dependent adult" shall have the same meaning as in Section 15610.23.  SEC. 6.   SEC. 5.  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.  SEC. 7.   SEC. 6.  This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to ensure that the applicable investigative structure adequately protects residents of developmental centers and other vulnerable persons from harm at the earliest possible time, it is necessary for this act to take effect immediately.