Bill Text: CA AB477 | 2013-2014 | Regular Session | Enrolled
Bill Title: Elder and dependent adult abuse: mandated reporting.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Vetoed) 2014-03-06 - Last day to consider Governor's veto pursuant to Joint Rule 58.5. [AB477 Detail]
Download: California-2013-AB477-Enrolled.html
BILL NUMBER: AB 477 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 9, 2013
PASSED THE ASSEMBLY SEPTEMBER 11, 2013
AMENDED IN SENATE SEPTEMBER 3, 2013
AMENDED IN SENATE AUGUST 12, 2013
AMENDED IN SENATE JUNE 24, 2013
AMENDED IN SENATE JUNE 14, 2013
AMENDED IN ASSEMBLY MAY 6, 2013
AMENDED IN ASSEMBLY APRIL 15, 2013
INTRODUCED BY Assembly Member Chau
FEBRUARY 19, 2013
An act to add Section 1208 to the Civil Code, to add Section 8215
to the Government Code, and to amend Sections 15632, 15633, 15634,
15637, 15640, and 15655.5 of, and to add Section 15630.2 to, the
Welfare and Institutions Code, relating to elder and dependent adult
abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 477, Chau. Elder and dependent adult abuse: mandated reporting.
Existing law, the Financial Elder Abuse Reporting Act of 2005,
establishes procedures for the reporting of suspected financial abuse
of an elder or dependent adult, as defined. These procedures require
mandated reporters of suspected financial abuse of an elder or
dependent adult, as defined, to report known or suspected instances
of financial abuse of an elder or dependent adult, as specified.
Existing law makes a violation of the reporting requirements subject
to a civil penalty.
This bill would include notaries public in the definition of
mandated reporters of suspected financial abuse of an elder or
dependent adult and would require a notary public, if he or she has
observed or has knowledge of suspected financial abuse in connection
with providing notary services, to report the known or suspected
instance of financial abuse. The bill would provide that this
requirement is applicable only when the notary public knows that the
victim of the suspected financial abuse is an elder or dependent
adult.
Existing law makes specified reports, including reports of known
or suspected financial abuse of an elder or dependent adult,
confidential. Any violation of the confidentiality of these reports
is a misdemeanor.
This bill would extend that confidentiality to a notary public's
report of known or suspected financial abuse of an elder or dependent
adult. By increasing the scope of a crime, the bill would impose a
state-mandated local program.
Existing law authorizes a care custodian, clergy member, health
practitioner, and an employee of an adult protective services agency
or a law enforcement agency to present a claim to the California
Victim Compensation and Government Claims Board for reasonable
attorney's fees incurred in any action against that person for making
a report of known or suspected abuse of an elder or dependent adult,
as specified.
This bill would additionally authorize a notary public to present
a claim to the board for reasonable attorney's fees incurred in an
action against that person for making a report pursuant to these
provisions.
Existing law requires a county adult protective services agency to
report every known or suspected instance of abuse of an elder or
dependent adult, as specified, to any public agency given
responsibility for investigation in that jurisdiction of cases of
elder and dependent adult abuse. Existing law also requires a county
adult protective services agency to provide mandated reporters of
suspected financial abuse of an elder or dependent adult with
instructional materials regarding abuse and neglect of an elder or
dependent adult and their obligation to report under these
provisions.
The bill would require a county adult protective services agency
to additionally report a known or suspected instance of abuse
reported by a notary public and to additionally provide instructional
materials to notaries public. By increasing the duties of local
agencies, this 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1208 is added to the Civil Code, to read:
1208. A notary public performing services under this article
shall comply with the reporting mandate specified in Section 15630.2
of the Welfare and Institutions Code.
SEC. 2. Section 8215 is added to the Government Code, to read:
8215. A notary public shall comply with the reporting mandate
specified in Section 15630.2 of the Welfare and Institutions Code.
Any violation of that reporting mandate shall be punished pursuant to
that section.
SEC. 3. Section 15630.2 is added to the Welfare and Institutions
Code, to read:
15630.2. (a) As used in this section, "mandated reporter of
suspected financial abuse of an elder or dependent adult" or
"mandated reporter" means notaries public.
(b) As used in this section, "financial abuse" has the same
meaning as in Section 15610.30.
(c) (1) Any notary public who, in connection with providing notary
services, has observed or has knowledge of suspected financial abuse
of an elder or dependent adult shall report the known or suspected
instance of financial abuse by telephone or through a confidential
Internet reporting tool, as authorized pursuant to 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 to the local
adult protective services agency or the local law enforcement agency.
(2) A notary public who is also an officer or employee of a
financial institution is subject to the reporting requirement under
Section 15630.1 and not the reporting requirement under this section.
(3) When two or more mandated reporters jointly have knowledge or
reasonably suspect that financial abuse of an elder or a dependent
adult for which the report is mandated has occurred, and when there
is an agreement among them, the telephone report or Internet report,
as authorized by Section 15658, may be made by a member of the
reporting team who is selected by mutual agreement. A single report
may be made and signed by the selected member of the reporting team.
Any member of the team who has knowledge that the member designated
to report has failed to do so shall thereafter make that report.
(4) If the mandated reporter knows that the elder or dependent
adult resides in a long-term care facility, as defined in Section
15610.47, the report shall be made to the local ombudsman or local
law enforcement agency.
(5) A notary public has no duty to review any document beyond
those specified in Section 8205 of the Government Code.
(d) An allegation by the elder or dependent adult, or any other
person, that financial abuse has occurred is not sufficient to
trigger the reporting requirement under this section if both of the
following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder
or dependent adult is aware of no other corroborating or independent
evidence of the alleged financial abuse of an elder or dependent
adult. The mandated reporter of suspected financial abuse of an elder
or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the
mandated reporter of suspected financial abuse of an elder or
dependent adult reasonably believes that financial abuse of an elder
or dependent adult did not occur.
(e) Failure to report financial abuse under this section shall be
subject to a civil penalty not exceeding one thousand dollars
($1,000) or if the failure to report is willful, a civil penalty not
exceeding five thousand dollars ($5,000), which shall be paid by the
mandated reporter to the party bringing the action. Subdivision (h)
of Section 15630 shall not apply to violations of this section.
(f) The civil penalty provided for in subdivision (e) shall be
recovered only in a civil action brought against the mandated
reporter by the Attorney General, district attorney, or county
counsel. No action shall be brought under this section by any person
other than the Attorney General, district attorney, or county
counsel. Multiple actions for the civil penalty shall not be brought
for the same violation.
(g) As used in this section, "suspected financial abuse of an
elder or dependent adult" occurs when a person who is required to
report under subdivision (c) observes or has knowledge of behavior or
unusual circumstances or transactions, or a pattern of behavior or
unusual circumstances or transactions, that would lead an individual
with like training or experience, based on the same facts, to form a
reasonable belief that an elder or dependent adult is the victim of
financial abuse as defined in Section 15610.30.
(h) Reports of suspected financial abuse of an elder or dependent
adult made by a mandated reporter pursuant to this section are
covered under subdivision (b) of Section 47 of the Civil Code.
(i) This section shall apply only when the notary public knows
that the victim of the suspected financial abuse is an elder or
dependent adult.
SEC. 4. Section 15632 of the Welfare and Institutions Code is
amended to read:
15632. (a) In any court proceeding or administrative hearing,
neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to the specific information
reported pursuant to this chapter.
(b) Nothing in this chapter shall require the disclosure of
information protected by the attorney-client privilege or the duty
under subdivision (e) of Section 6068 of the Business and Professions
Code.
SEC. 5. Section 15633 of the Welfare and Institutions Code is
amended to read:
15633. (a) The reports made pursuant to Sections 15630, 15630.1,
15630.2, and 15631 shall be confidential and may be disclosed only as
provided in subdivision (b). Any violation of the confidentiality
required by this chapter is a misdemeanor punishable by not more than
six months in the county jail, by a fine of five hundred dollars
($500), or by both that fine and imprisonment.
(b) Reports of suspected abuse of an elder or dependent adult and
information contained therein may be disclosed only to the following:
(1) Persons or agencies to whom disclosure of information or the
identity of the reporting party is permitted under Section 15633.5.
(2) (A) Persons who are trained and qualified to serve on
multidisciplinary personnel teams may disclose to one another
information and records that are relevant to the prevention,
identification, or treatment of abuse of elderly or dependent
persons.
(B) Except as provided in subparagraph (A), any personnel of the
multidisciplinary team or agency that receives information pursuant
to this chapter, shall be under the same obligations and subject to
the same confidentiality penalties as the person disclosing or
providing that information. The information obtained shall be
maintained in a manner that ensures the maximum protection of privacy
and confidentiality rights.
(c) This section shall not be construed to allow disclosure of any
reports or records relevant to the reports of abuse of an elder or
dependent adult if the disclosure would be prohibited by any other
provisions of state or federal law applicable to the reports or
records relevant to the reports of the abuse, nor shall it be
construed to prohibit the disclosure by a financial institution or
notary public of any reports or records relevant to the reports of
abuse of an elder or dependent adult if the disclosure would be
required of a financial institution or notary public by otherwise
applicable state or federal law or court order.
SEC. 6. Section 15634 of the Welfare and Institutions Code is
amended to read:
15634. (a) A care custodian, clergy member, health practitioner,
mandated reporter of suspected financial abuse of an elder or
dependent adult, or employee of an adult protective services agency
or a local law enforcement agency who reports a known or suspected
instance of abuse of an elder or dependent adult shall not be civilly
or criminally liable for any report required or authorized by this
chapter. Any other person reporting a known or suspected instance of
abuse of an elder or dependent adult shall not incur civil or
criminal liability as a result of any report authorized by this
chapter, unless it can be proven that a false report was made and the
person knew that the report was false. A person required to make a
report pursuant to this chapter, or any person taking photographs at
his or her discretion, shall not incur any civil or criminal
liability for taking photographs of a suspected victim of abuse of an
elder or dependent adult or causing photographs to be taken of a
suspected victim or for disseminating the photographs with the
reports required by this chapter. However, this section shall not be
construed to grant immunity from this liability with respect to any
other use of the photographs.
(b) A care custodian, clergy member, health practitioner, mandated
reporter of suspected financial abuse of an elder or dependent
adult, or employee of an adult protective services agency or a local
law enforcement agency who, pursuant to a request from an adult
protective services agency or a local law enforcement agency
investigating a report of known or suspected abuse of an elder or
dependent adult, provides the requesting agency with access to the
victim of a known or suspected instance of abuse of an elder or
dependent adult, shall not incur civil or criminal liability as a
result of providing that access.
(c) The Legislature finds that, even though it has provided
immunity from liability to persons required to report abuse of an
elder or dependent adult, immunity does not eliminate the possibility
that actions may be brought against those persons based upon
required reports of abuse. In order to further limit the financial
hardship that those persons may incur as a result of fulfilling their
legal responsibilities, it is necessary that they not be unfairly
burdened by legal fees incurred in defending those actions.
Therefore, a care custodian, clergy member, health practitioner,
notary public, or an employee of an adult protective services agency
or a local law enforcement agency may present to the California
Victim Compensation and Government Claims Board a claim for
reasonable attorney's fees incurred in any action against that person
on the basis of making a report required or authorized by this
chapter if the court has dismissed the action upon a demurrer or
motion for summary judgment made by that person, or if he or she
prevails in the action. The California Victim Compensation and
Government Claims Board shall allow that claim if the requirements of
this subdivision are met, and the claim shall be paid from an
appropriation to be made for that purpose. Attorney's fees awarded
pursuant to this section shall not exceed an hourly rate greater than
the rate charged by the Attorney General at the time the award is
made and shall not exceed an aggregate amount of fifty thousand
dollars ($50,000). This subdivision shall not apply if a public
entity has provided for the defense of the action pursuant to Section
995 of the Government Code.
SEC. 7. Section 15637 of the Welfare and Institutions Code is
amended to read:
15637. In any court proceeding or administrative hearing, neither
the physician-patient privilege nor the psychotherapist-patient
privilege applies to the specific information required to be reported
pursuant to this chapter. Nothing in this chapter shall require the
disclosure of information protected by the attorney-client privilege
or the duty under subdivision (e) of Section 6068 of the Business and
Professions Code.
SEC. 8. Section 15640 of the Welfare and Institutions Code is
amended to read:
15640. (a) (1) An adult protective services agency shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case any
known or suspected instance of criminal activity, and to any public
agency given responsibility for investigation in that jurisdiction of
cases of elder and dependent adult abuse, every known or suspected
instance of abuse of an elder or dependent adult pursuant to Section
15630, 15630.1, or 15630.2. A county adult protective services agency
shall also send a written report thereof within two working days of
receiving the information concerning the incident to each agency to
which it is required to make a telephone report under this
subdivision. Prior to making any cross-report of allegations of
financial abuse to law enforcement agencies, an adult protective
services agency shall first determine whether there is reasonable
suspicion of any criminal activity.
(2) If an adult protective services agency receives a report of
abuse alleged to have occurred in a long-term care facility, that
adult protective services agency shall immediately inform the person
making the report that he or she is required to make the report to
the long-term care ombudsman program or to a local law enforcement
agency. The adult protective services agency shall not accept the
report by telephone but shall forward any written report received to
the long-term care ombudsman.
(b) If an adult protective services agency or local law
enforcement agency or ombudsman program receiving a report of known
or suspected elder or dependent adult abuse determines, pursuant to
its investigation, that the abuse is being committed by a health
practitioner licensed under Division 2 (commencing with Section 500)
of the Business and Professions Code, or any related initiative act,
or by a person purporting to be a licensee, the adult protective
services agency or local law enforcement agency or ombudsman program
shall immediately, or as soon as practically possible, report this
information to the appropriate licensing agency. The licensing agency
shall investigate the report in light of the potential for physical
harm. The transmittal of information to the appropriate licensing
agency shall not relieve the adult protective services agency or
local law enforcement agency or ombudsman program of the
responsibility to continue its own investigation as required under
applicable provisions of law. The information reported pursuant to
this paragraph shall remain confidential and shall not be disclosed.
(c) A local law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the long-term care
ombudsman program when the abuse is alleged to have occurred in a
long-term care facility or to the county adult protective services
agency when it is alleged to have occurred anywhere else, and to the
agency given responsibility for the investigation of cases of elder
and dependent adult abuse every known or suspected instance of abuse
of an elder or dependent adult. A local law enforcement agency shall
also send a written report thereof within two working days of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.
(d) A long-term care ombudsman coordinator may report the instance
of abuse to the county adult protective services agency or to the
local law enforcement agency for assistance in the investigation of
the abuse if the victim gives his or her consent. A long-term care
ombudsman program and the Licensing and Certification Division of the
State Department of Public Health shall immediately report by
telephone and in writing within two working days to the bureau any
instance of neglect occurring in a health care facility that has
seriously harmed any patient or reasonably appears to present a
serious threat to the health or physical well-being of a patient in
that facility. If a victim or potential victim of the neglect
withholds consent to being identified in that report, the report
shall contain circumstantial information about the neglect, but shall
not identify that victim or potential victim. The bureau and the
reporting agency shall maintain the confidentiality of the report
until the report becomes a matter of public record.
(e) When a county adult protective services agency, a long-term
care ombudsman program, or a local law enforcement agency receives a
report of abuse, neglect, or abandonment of an elder or dependent
adult alleged to have occurred in a long-term care facility, that
county adult protective services agency, long-term care ombudsman
coordinator, or local law enforcement agency shall report the
incident to the licensing agency by telephone as soon as possible.
(f) County adult protective services agencies, long-term care
ombudsman programs, and local law enforcement agencies shall report
the results of their investigations of referrals or reports of abuse
to the respective referring or reporting agencies.
SEC. 9. Section 15655.5 of the Welfare and Institutions Code is
amended to read:
15655.5. A county adult protective services agency shall provide
the organizations listed in paragraphs (v), (w), and (x) of Section
15610.17, and mandated reporters of suspected financial abuse of an
elder or dependent adult pursuant to Sections 15630.1 and 15630.2,
with instructional materials regarding abuse and neglect of an elder
or dependent adult and their obligation to report under this chapter.
At a minimum, the instructional materials shall include all of the
following:
(a) An explanation of abuse and neglect of an elder or dependent
adult, as defined in this chapter.
(b) Information on how to recognize potential abuse and neglect of
an elder or dependent adult.
(c) Information on how the county adult protective services agency
investigates reports of known or suspected abuse and neglect.
(d) Instructions on how to report known or suspected incidents of
abuse and neglect, including the appropriate telephone numbers to
call and what types of information would assist the county adult
protective services agency with its investigation of the report.
SEC. 10. 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.
