Bill Text: CA SB648 | 2017-2018 | Regular Session | Amended
Bill Title: Health and care facilities: private referral agencies.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2018-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB648 Detail]
Download: California-2017-SB648-Amended.html
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Amended
IN
Senate
April 27, 2017 |
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Amended
IN
Senate
April 06, 2017 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Senate Bill | No. 648 |
| Introduced by Senator Mendoza |
February 17, 2017 |
An act to amend Sections 1536.1, 1568.081, and 1569.47 of, to add Chapter 3.25 (commencing with Section 1569.90) to Division 2 of, and to repeal Section 1569.92 of, the Health and Safety Code, and to amend Section 15630 of the Welfare and Institutions Code, relating to health and care facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 648, as amended, Mendoza.
Health and care facilities: private referral agencies.
Existing law defines a placement agency as a local governmental agency, a general acute care hospital, a conservator, a regional center, or a private entity receiving public funds that is engaged in finding homes or other places for placement of specified persons, including placement in an adult residential facility, residential care facility for persons with chronic life-threatening illness, or residential care facility for the elderly. Existing law requires an employee of a placement agency who knows, or reasonably suspects, that a facility that is not exempt from licensing requirements is operating without a license to report the name and address of the facility to the State Department of Social Services. Failure to report the facility is punishable as a misdemeanor.
This bill would expand the definition of placement agencies to include
private referral agencies that refer persons for remuneration to an adult residential facility, a residential care facility for persons with chronic life-threatening illness, or a residential care facility for the elderly. Because the bill would expand the requirements imposed on a placement agency to apply to a private referral agency, the violation of which would be a crime, this bill would impose a state-mandated local program. The bill would also require the aforementioned facilities to provide a resident with a disclosure statement before an admission agreement is signed if the services of a private referral agency are used. used and the facility licensee knows the private referral agency was used and has a long-term agreement or contract with the private referral agency. The bill would authorize the State
Department of Social Services to assess a civil penalty in the amount the facility paid to the private referral agency penalty, as specified, if the facility fails to provide the disclosure.
The bill would prohibit a private referral agency or its employees from holding any power of attorney for a person receiving placement referral services or to receive or hold that person’s property in any capacity. The bill would require, commencing July 1, 2018, a private referral agency to maintain liability insurance in specified amounts. The bill would make it unlawful for an employee, independent contractor, or other person who is acting on behalf of a government agency, hospital, or other health care institution to offer, provide, or accept a payment, rebate, refund, commission,
preference, or discount as payment, compensation, or inducement for referring patients, clients, or customers to an adult residential facility, residential care facility for persons with chronic life-threatening illness, or residential care facility for the elderly, or private referral agency.
The bill would require the State Department of Social Services to keep track of any consumer complaints arising from consumer interactions with private referral agencies and would authorize the department to levy civil penalties, as specified. The bill would prohibit a private referral agency from disclosing any personal information of a person receiving services unless authorized to do so and would require a private referral agency to retain, for no less than 3 years, an acknowledgment from the person being referred, or his or her conservator, guardian, authorized family member or other
authorized representative, attorney in fact, or agent under a power of attorney, stating that the authorization had been made. The bill would require a private referral agency to conduct a suitability determination of each person who seeks a referral and is referred to an adult residential facility, residential care facility for persons with chronic life-threatening illness, or residential care facility for the elderly. The bill would require a private referral agency to train its employees who make referrals to an adult residential facility, residential care facility for persons with chronic life-threatening illness, or residential care facility for the elderly, as specified.
The bill would also require the State Department of Social Services to, no later than January 1, 2023, submit a report on the effectiveness of existing statutory remedies related to private referral agencies to the Legislature, as specified. The bill would require the report to include an
evaluation of whether further regulation of private referral agencies is needed and would require the department to work with stakeholders and consider consumer complaints, previous actions, and any other applicable documents or reports when conducting its evaluation.
Existing law makes specified persons mandated reporters of elder or dependent adult abuse, including administrators, supervisors, and licensed staff of a facility that provide care or services for elder or dependent adults. Under existing law, failure to report physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult is a misdemeanor.
The bill would include on the list of mandated reporters owners, operators, and employees of a specified private referral agency. By expanding the crime of failure to report elder or dependent adult abuse, 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 no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1536.1 of the Health and Safety Code is amended to read:1536.1.
(a) “Placement agency” means a county probation department, county welfare department, county social service department, county mental health department, county public guardian, general acute care hospital discharge planner or coordinator, private referral agency engaged in the business of placing or referring persons for remuneration to an adult residential facility, conservator pursuant to Part 3 (commencing with Section 1800) of Division 4 of the Probate Code, conservator pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code, and regional center for persons with developmental disabilities, that is engaged in finding homes or other places for placement of persons of any age for temporary or permanent care.(b) A placement agency shall place individuals only in licensed community care facilities, in facilities that are exempt from licensing under Section 1505 or if the facility satisfies subdivision (c) of Section 362 of the Welfare and Institutions Code, or with a foster family agency.
(c) No employee of a placement agency shall place, refer, or recommend placement of a person in a facility operating without a license, unless the facility is exempt from licensing under Section 1505 or unless the facility satisfies subdivision (c) of Section 362 of the Welfare and Institutions Code. Violation of this subdivision is a misdemeanor.
(d) Any employee of a placement agency who knows, or reasonably suspects, that a facility that is not exempt from licensing is operating without a license shall report the name and address of the facility to the department. Failure to report as required by this subdivision is a misdemeanor.
(e) The department shall investigate any report filed under subdivision (d). If the department has probable cause to believe that the facility that is the subject of the report is operating without a license, the department shall investigate the facility within 10 days after receipt of the report.
(f) A placement agency shall notify the appropriate licensing agency of known or suspected incidents that would jeopardize the health or
safety of residents in a community care facility. Reportable incidents include, but are not limited to, all of the following:
(1) Incidents An incident of physical or sexual abuse.
(2) A violation of personal rights.
(3) A situation in which a facility is unclean, unsafe, unsanitary, or in poor condition.
(4) A situation in which a facility has insufficient personnel or incompetent personnel on duty.
(5) A situation in which
residents experience mental or verbal abuse.
(6) A situation in which residents are inadequately supervised.
(7) Incidents An incident of abuse, neglect, or exploitation of a nonminor dependent, as defined in subdivision (v) of Section 11400 of the Welfare and Institutions Code, by a licensed caregiver while the nonminor is in a foster care placement.
(g) (1) If the services of a private referral agency are used to place an individual into an adult residential facility,
facility and the facility licensee knows the private referral agency was used and has a long-term agreement or contract with the private referral agency, the facility licensee shall, before the signing of the admission agreement in accordance with Section 80068 of Title 22 of the California Code of Regulations, provide the resident or his or her representative with a comprehensive disclosure statement that includes information about all of the following:
(A) Whether the facility has a long-term agreement or contract with the private referral agency for continuous referrals.
(B) That a commission or fee has been or will be received by the private referral agency from the facility as a result of the referral, if applicable.
(C) Any gift or exchange of monetary value between the facility and the private referral agency that is in addition to, or in lieu of, a commission or fee.
(2) The facility licensee shall retain a an acknowledged copy of the disclosure statement described in paragraph (1) along with the completed admission agreement. Acknowledgment shall be provided by a signature at the end of the disclosure statement.
(3) The department shall assess a civil penalty in the amount the facility paid to the private referral agency
pursuant to Section 1548 if the facility licensee fails to meet the requirements of paragraph (1).
SEC. 2.
Section 1568.081 of the Health and Safety Code is amended to read:1568.081.
(a) “Placement agency” includes a private referral agency engaged in the business of placing or referring persons for remuneration to a residential care facility for persons with chronic life-threatening illness.(b) A placement agency shall place individuals only in licensed residential care facilities or facilities which that are exempt from licensure under subdivision (c) of Section 1568.03.
(c) No employee of a
placement agency shall place, refer, or recommend placement of a person in a facility operating without a license, unless the facility is exempt from licensure under subdivision (c) of Section 1568.03. Violation of this subdivision is a misdemeanor.
(d) Any employee of a placement agency who knows, or reasonably suspects suspects, that a facility, which is not exempt from licensure under this chapter, is operating without a license shall report the name and address of the facility to the department. Failure to report as required by this subdivision is a misdemeanor.
(e) The department shall investigate any report
filed under subdivision (d). If the department has probable cause to believe that the facility which that is the subject of the report is operating without a license, the department shall investigate the facility within 10 days after receipt of the report.
(f) A placement agency shall notify the department of any known or suspected incidents which that would jeopardize the health or safety of residents in a residential care facility. Reportable incidents include, but are not limited to, all of the
following:
(1) Incidents An incident of physical abuse.
(2) Any A violation of personal rights.
(3) Any A situation in which a facility is unclean, unsafe, unsanitary, or in poor condition.
(4) Any A situation in which a facility has insufficient personnel or incompetent personnel on duty.
(5) Any
A situation in which residents experience mental or verbal abuse.
(6) Any A situation in which a facility is suspected of accepting or retaining residents who require a higher level of care than the facility is authorized to provide.
(g) (1) If the services of a private referral agency are used to place an individual into a residential care facility for persons with chronic life-threatening illness,
illness and the facility licensee knows the private referral agency was used and has a long-term agreement or contract with the private referral agency, the facility licensee shall, before the signing of the admission agreement in accordance with Section 87868 of Title 22 of the California Code of Regulations, provide the resident or his or her representative with a comprehensive disclosure statement that includes information about all of the following:
(A) Whether the facility has a long-term agreement or contract with the private referral agency for continuous referrals.
(B) That a commission or fee has been or will be received by the private referral agency from the facility as a result of the referral, if applicable.
(C) Any gift or exchange of monetary value between the facility and the private referral agency that is in addition to, or in lieu of, a commission or fee.
(2) The facility licensee shall retain a an acknowledged copy of the disclosure statement described in paragraph (1) along with the completed admission agreement. Acknowledgment shall be provided by a signature at the end of the disclosure
statement.
(3) The department shall assess a civil penalty in the amount the facility paid to the private referral agency pursuant to Section 1568.0822 if the facility licensee fails to meet the requirements of paragraph (1).
SEC. 3.
Section 1569.47 of the Health and Safety Code is amended to read:1569.47.
(a) (1) “Placement agency” means any county welfare department, county social service department, county mental health department, county public guardian, general acute care hospital discharge planner or coordinator, state-funded program or private agency providing placement or referral services, conservator pursuant to Part 3 (commencing with Section 1800) of Division 4 of the Probate Code, conservator pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code, and regional center for persons with developmental disabilities(2) A “private agency providing placement or referral services” described in paragraph (1) includes a private referral agency engaged in the business of placing or referring persons for remuneration to a residential care facility for the elderly. A private referral agency does not include any of the following:
(A) A licensed residential care facility for the elderly that does either of the following:
(i) Provides discounts or other remuneration to a resident or his or her family for referring new or prospective clients.
(ii) Provides remuneration to staff for marketing or sales offers.
(B) A resident of a residential care facility for the elderly who refers a new or prospective resident to a licensed residential care facility for the elderly and receives a discount or other remuneration from the licensed residential care facility for the elderly.
(C) A staff member of the licensed residential care facility for the elderly who receives remuneration from the facility for professional services, including, but not limited to, sales and marketing efforts on behalf of that facility.
(b) A placement agency shall not place individuals
an individual in a licensed residential care facilities facility for the elderly when the individual, because of his or her health condition, cannot be cared for within the limits of the license or requires inpatient care in a health facility. Violation of this subdivision is a misdemeanor.
(c) A placement agency or employee of a placement agency shall not place, refer, or recommend placement of a person in a facility providing care and supervision, or protective supervision, unless the facility is licensed as a residential care facility for the elderly
or is exempt from licensing under Section 1569.145. Violation of this subdivision is a misdemeanor.
(d) Any employee of a placement agency who knows, or reasonably suspects, that a facility which that is not exempt from licensing is operating without a license shall report the name and address of the facility to the department. Failure to report as required by this subdivision is a misdemeanor.
(e) The department shall investigate any report filed under subdivision (d). If the department has probable cause to believe that the facility which
that is the subject of the report is operating without a license, the department shall investigate the facility within 10 days after receipt of the report.
(f) A placement agency shall notify the appropriate licensing agency of any known or suspected incidents which that would jeopardize the health or safety of residents in a residential care facility for the elderly. Reportable incidents include, but are not limited to, all of the following:
(1) Incidents An
incident of physical abuse.
(2) Any A violation of personal rights.
(3) Any A situation in which a facility is unclean, unsafe, unsanitary, or in poor condition.
(4) Any A situation in which a
facility has insufficient personnel or incompetent personnel on duty.
(5) Any A situation in which residents experience mental or verbal abuse.
(g) (1) If the services of a private referral agency are used to place an individual into a residential care facility for the elderly, elderly and the facility licensee knows the private referral agency was used
and has a long-term agreement or contract with the private referral agency, the facility licensee shall, before the signing of the admission agreement in accordance with Section 1569.887, provide the resident or his or her representative with a comprehensive disclosure statement that includes information about all of the following:
(A) Whether the facility has a long-term agreement or contract with the private referral agency for continuous referrals.
(B) That a commission or fee has been or will be received by the private referral agency from the facility as a result of the referral, if applicable.
(C) Any
gift or exchange of monetary value between the facility and the private referral agency that is in addition to, or in lieu of, a commission or fee.
(2) The facility licensee shall retain a an acknowledged copy of the disclosure statement described in paragraph (1) along with the completed admission agreement. Acknowledgment shall be provided by a signature at the end of the disclosure statement.
(3) The department shall assess a civil penalty in the amount the facility paid to the private referral agency
pursuant to Section 1569.49 if the facility licensee fails to meet the requirements of paragraph (1).
SEC. 4.
Chapter 3.25 (commencing with Section 1569.90) is added to Division 2 of the Health and Safety Code, to read:CHAPTER 3.25. Private Referral Agencies
1569.90.
It is the intent of the Legislature in enacting this chapter to authorize the State Department of Social Services to take effective action to protect the health and safety of consumers who have used the services of a private referral agency to place an individual into an adult residential facility as described in Section 1536.1, a residential care facility for persons with chronic life-threatening illness as described in Section 1568.081, or a residential care facility for the elderly as described in Section 1569.47.1569.91.
(a) The State Department of Social Services shall keep track of any consumer complaint arising from consumer interactions with a private referral agency. The department may levy civil penalties pursuant to Section 1569.49 for a violation of this section.(b) (1) It is unlawful for a private referral agency to share any personal information, including, but not limited to, the name, address, age, gender, or medical information of the person receiving services from the licensee, with any unauthorized person or third-party affiliate of the licensee, unless authorized pursuant to the following:
(A) A private referral agency may obtain authorization from the person being referred, or his or her conservator, guardian, authorized family member or other authorized representative, attorney in fact, or agent under power of attorney, allowing the agency to share the referred person’s personal information, including the name and a description of the care or services needed by the individual, with a residential care facility for the elderly, adult residential facility, or residential care facility for persons with chronic life-threatening illness solely for performing services of the referral. The authorization shall be obtained in any of the following ways:
(i) For in-person authorization, as a separate authorization form that clearly discloses that the individual is consenting to the disclosure of his or her personal information
to a facility or facilities for which he or she is being referred. The authorization form shall obtain the date and signature of the person being providing authorization.
(ii) For referrals generated electronically, authorization shall be in a manner that is consistent with the provisions set forth in Title 2.5 (commencing with Section 1633.1) of Part 2 of Division 3 of the Civil Code, and shall be displayed on a secured Internet Web page in a larger type than the surrounding text. This clause does not authorize an in-person electronic authorization.
(iii) For referrals generated telephonically, authorization shall be recorded, with that person’s consent, consistent with Sections 632 and 632.7 of the Penal Code. This clause does not authorize an in-person oral authorization.
(B) Authorization pursuant to subparagraph (A) shall be retained by the private referral agency for no less than three years and, upon request, shall be provided in a reasonably accessible format to the person being referred or the department within five days of the request.
(2) The licensee shall not share the contact information of any individual who has not provided his or her authorization pursuant to paragraph (1).
(c) (1) A private referral agency shall conduct a suitability determination of each person who seeks a referral from the agency and who is referred to a residential care facility for the elderly, adult residential facility, or residential care facility for persons with chronic
life-threatening illness.
(2) For purposes of this subdivision, “a suitability determination” means a determination made by the private referral agency that the residential care facility for the elderly, adult residential facility, or residential care facility for persons with chronic life-threatening illness offers services to meet the needs of the person seeking a referral based on the following considerations:
(A) The level of care requested by the person seeking the referral.
(B) The cost of the facility and the ability of the financial means of the person seeking the referral.
(C) The social needs and preferences of the person seeking the referral.
(D) The geographic location of the facility and the geographic preference of the person seeking the referral.
(d) A private referral agency shall train all employees who make referrals to a residential care facility for the elderly, an adult residential facility, or a residential care facility for persons with chronic life-threatening illness about all of the following issues:
(1) Any applicable laws, regulations, and policies and procedural standards that impact the operations of the private referral agency and the residential care facility for the elderly, adult residential facility, or residential care facility for persons with chronic life-threatening illness.
(2) State governance and administrative functions of agency operations, including resident assessment and admission procedures.
(3) The psychosocial and physical needs of the elderly.
(4) Community supports, cultural competency, and sensitivity to residents’ needs.
1569.92.
(a) The State Department of Social Services shall, no later than January 1, 2023, submit a report on the effectiveness of existing statutory remedies related to private referral agencies to the Legislature in compliance with Section 9795 of the Government Code.(b) The report shall include an evaluation of whether further regulation of private referral agencies is needed. The department shall work with stakeholders and consider consumer complaints, previous actions, and any other applicable documents or reports to conduct its evaluation.
(c) Pursuant to Section 10231.5 of the Government Code, this section
is repealed on January 1, 2024.
1569.93.
An owner, operator, or employee of a private referral agency is a mandated reporter of elder or domestic adult abuse pursuant to Section 15630 of the Welfare and Institutions Code.1569.94.
A private referral agency or its employees shall not hold any power of attorney for a person receiving placement referral services from that private referral agency or hold that person’s property in any capacity.1569.95.
Commencing July 1, 2018, a private referral agency shall maintain liability insurance coverage in an amount of at least one million dollars ($1,000,000) per person occurrence and three million dollars ($3,000,000) in the total annual aggregate for negligent acts or omissions by the private referral agency or any of its employees.1569.96.
An employee, independent contractor, or other person acting on behalf of a government agency, hospital, or other health care institution, including, but not limited to, medical professionals, physicians, nurses, social workers, discharge planners, therapists, and geriatric care managers, shall not offer, provide, or accept a payment, rebate, refund, commission, preference, or discount, whether in the form of money or other consideration, as payment, compensation, or inducement for referring patients, clients, or customers to an adult residential facility, residential care facility for persons with chronic life-threatening illness, or residential care facility for the elderly, or a private referral agency.SEC. 5.
Section 15630 of the Welfare and Institutions Code is amended to read:15630.
(a) All of the following persons are mandated reporters:(1) A 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.
(2) An elder or dependent adult care custodian.
(3) A health practitioner.
(4) A clergy member.
(5) An employee of a county adult protective services agency.
(6) An employee of a local law enforcement agency.
(7) An owner, operator, or employee of a private referral agency described in Sections 1536.1, 1568.081, and 1569.47 of the Health and Safety Code.
(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.
(A) If the suspected or alleged abuse is physical abuse, as defined in Section 15610.63, and the abuse occurred in a long-term care facility, except a state mental health hospital or a state developmental center, the following shall occur:
(i) If the suspected abuse results in serious bodily injury, a telephone report shall be made to the local law enforcement agency immediately, but also no later than within two hours of the mandated reporter observing, obtaining knowledge of, or suspecting the physical abuse, and a written report shall be made to the local ombudsman, the corresponding licensing agency, and the local law enforcement agency within two hours of the mandated reporter observing, obtaining knowledge of, or suspecting the physical abuse.
(ii) If the suspected abuse does not result in serious bodily injury, a telephone report shall be made to the local law enforcement agency within 24 hours of the mandated reporter observing, obtaining knowledge of, or suspecting the physical abuse, and a written report shall be made to the local ombudsman, the corresponding
licensing agency, and the local law enforcement agency within 24 hours of the mandated reporter observing, obtaining knowledge of, or suspecting the physical abuse.
(iii) When the suspected abuse is allegedly caused by a resident with a physician’s diagnosis of dementia, and there is no serious bodily injury, as reasonably determined by the mandated reporter, drawing upon his or her training or experience, the reporter shall report to the local ombudsman or law enforcement agency by telephone, immediately or as soon as practicably possible, and by written report, within 24 hours.
(iv) When applicable, reports made pursuant to clauses (i) and (ii) shall be deemed to satisfy the reporting requirements of the federal Elder Justice Act of 2009, as set out in Subtitle H of the federal
Patient Protection and Affordable Care Act (Public Law 111-148), Section 1418.91 of the Health and Safety Code, and Section 72541 of Title 22 of the California Code of Regulations. When a local law enforcement agency receives an initial report of suspected abuse in a long-term care facility pursuant to this subparagraph, the local law enforcement agency may coordinate efforts with the local ombudsman to provide the most immediate and appropriate response warranted to investigate the mandated report. The local ombudsman and local law enforcement agencies may collaborate to develop protocols to implement this subparagraph.
(B) Notwithstanding the rulemaking provisions of Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, or any other law, the department may implement subparagraph (A),
in whole or in part, by means of all-county letters, provider bulletins, or other similar instructions without taking regulatory action.
(C) If the suspected or alleged abuse is abuse other than physical abuse, and the abuse occurred in a long-term care facility, except a state mental health hospital or a state developmental center, a telephone report and a written report shall be made to the local ombudsman or the local law enforcement agency.
(D) With regard to abuse reported pursuant to subparagraph (C), the local ombudsman 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 program, as defined in paragraph (2) of subdivision (a) of Section 1502 of the Health and Safety Code.
(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.
(E) (i) If the suspected or alleged abuse or neglect occurred in a state mental hospital or a state developmental center, and the suspected or alleged abuse or neglect resulted in any of the following incidents, a report shall be made immediately, but no later than within two hours of the mandated reporter observing, obtaining knowledge of, or
suspecting abuse, to designated investigators of the State Department of State Hospitals or the State Department of Developmental Services, and also to the local law enforcement agency:
(I) A death.
(II) A sexual assault, as defined in Section 15610.63.
(III) An assault with a deadly weapon, as described in Section 245 of the Penal Code, by a nonresident of the state mental hospital or state developmental center.
(IV) An assault with force likely to produce great bodily injury, as described in Section 245 of the Penal Code.
(V) An injury to the genitals when the cause of the injury is undetermined.
(VI) A broken bone when the cause of the break is undetermined.
(ii) All other reports of suspected or alleged abuse or neglect that occurred in a state mental hospital or a state developmental center shall be made immediately, but no later than within two hours of the mandated reporter observing, obtaining knowledge of, or suspecting abuse, to designated investigators of the State Department of State Hospitals or the State Department of Developmental Services, or to the local law enforcement agency.
(iii) When a local law enforcement agency receives an initial report of suspected or alleged abuse or neglect in a state mental hospital or a state developmental center pursuant to clause (i), the local law enforcement agency
shall coordinate efforts with the designated investigators of the State Department of State Hospitals or the State Department of Developmental Services to provide the most immediate and appropriate response warranted to investigate the mandated report. The designated investigators of the State Department of State Hospitals or the State Department of Developmental Services and local law enforcement agencies may collaborate to develop protocols to implement this clause.
(iv) 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.
(v) Notwithstanding any other law, a mandated reporter who is required to report pursuant to Section 4427.5 shall not be
required to report under clause (i).
(F) If the abuse has occurred in any place other than a long-term care facility, a state mental hospital, or a state developmental center, 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) This subdivision shall not be construed to modify or limit a clergy member’s duty to report known or suspected elder and dependent adult abuse if 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 if 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 if 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 ombudsman, 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 ombudsman program. Except in an emergency, the local ombudsman 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 State Hospitals or the State Department of Developmental Services or to a local law enforcement agency. Except in an emergency, 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) If 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 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, if 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.
