Bill Text: CA SB920 | 2019-2020 | Regular Session | Amended
Bill Title: Persons with disabilities: terminology.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-03-30 - From committee with author's amendments. Read second time and amended. Re-referred to Com. on HUMAN S. [SB920 Detail]
Download: California-2019-SB920-Amended.html
|
Amended
IN
Senate
March 30, 2020 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
Senate Bill
No. 920
| Introduced by Senator Beall |
February 04, 2020 |
An act to amend Section 12528 of the Government Code, to amend Sections 288, 368.6, 502.9, 515, 525, 861.5, and 868.7 868.7, and 13515 of, and to amend the heading of Chapter 13 (commencing with Section 368) of Title 9 of Part 1 of, the Penal Code, and to amend Section 15610.23 of
Sections 15610.07, 15610.23, and 15630 of, to amend the heading of Article 8 (commencing with Section 15656) and the heading of Article 8.5 (commencing with Section 15657) of Chapter 11 of Part 3 of Division 9 of, and to amend the heading of Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of, the Welfare and Institutions Code, relating to persons with disabilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 920, as amended, Beall.
Persons with disabilities: terminology.
Existing law, for various purposes, including prosecuting abuse and lewd and lascivious acts, among other things, prohibits, and prescribes heightened penalties for, the commission of specified offenses of abuse committed against an elder or dependent person or dependent adult. Existing law also mandates reporting of known or suspected cases of elder and dependent adult abuse. Existing law defines the terms “dependent person” and “dependent adult.” adult” for purposes of these provisions.
This bill would change those terms in selected statutes to “person with a disability” and “adult with a disability” and would state the intent of the Legislature that those terms be changed in the remaining code sections provisions of law that use them as changes are made to the code those statutes are amended in the future.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(a) The terms “dependent adult” and “dependent person” are misleading because many of the people with disabilities that those terms cover live independently. These terms can mislead law enforcement officers, social workers, and even crime victims and their families to think that many people with disabilities are excluded from the law’s protections.
(b) The term “elder and dependent adult abuse” is cumbersome and often leads to the use of shorthand terms, including the misleadingly narrow “elder abuse” or the misleadingly
broad “adult abuse.”
(c) The term “dependent” demeans and insults people with disabilities who live independently.
(d) Definitions of “dependent adult” or “dependent person” are, for most practical purposes, identical to the definition of “disability” in Section 422.56 of the Penal Code.
(e) It is the intent of the Legislature in enacting this act that the terms “dependent adult” and “dependent person” be replaced in code with the term “adult with a disability” or “person with a disability” in future changes to the code.
SEC. 2.
Section 12528 of the Government Code is amended to read:12528.
(a) There is in the Office of the Attorney General the Bureau of Medi-Cal(b) The bureau shall also review complaints alleging abuse or neglect of patients in health care facilities receiving payments under the Medi-Cal plan and may review complaints of the misappropriation of patient’s private funds in such those facilities and complaints of discriminatory treatment of
Medi-Cal beneficiaries by such
those facilities.
(1) If the initial review indicates substantial potential for criminal prosecution, the bureau shall investigate the complaint or refer it to an appropriate criminal investigative or prosecutive authority.
(2) If the initial review does not indicate a substantial potential for criminal prosecution, the bureau shall inform the referring agency of its determination and may, if appropriate, refer the complaint to the State Department of Health Care Services.
(c) Local law enforcement and prosecution agencies shall have concurrent jurisdiction with the bureau to investigate and prosecute violations of law referred to in this section.
(d) If the bureau, in carrying out its duties and responsibilities under subdivisions (a) and (b), discovers that overpayments have been made to a health care facility or other provider of medical assistance or medical supplies under the Medi-Cal plan, the bureau shall either attempt to collect the overpayment or refer the matter to the State Department of Health Care Services for collection.
(e) Where When a prosecuting authority other than the bureau elects to prosecute a case reported to the bureau, the bureau shall, upon request of that prosecuting authority, ensure that those
responsible for the prosecutive decision and the preparation of the case for trial have the opportunity to participate in the investigation from its inception and will
shall provide all necessary assistance to the prosecuting authority throughout all resulting prosecutions.
(f) The bureau shall make available to federal investigators or prosecutors all information in its possession concerning fraud in the provision or administration of medical assistance under the Medi-Cal plan and shall cooperate with such those officials in coordinating any federal and state investigations or prosecutions involving the same suspects or allegations.
(g) The bureau shall safeguard the privacy rights of all individuals and shall provide safeguards to prevent the misuse of information under its control, and all agencies which
that are required to report complaints alleging abuse or neglect of patients shall maintain the confidentiality of those reports until such time as the report becomes a matter of public record.
(h) The bureau shall offer training programs to local law enforcement and prosecutorial personnel in investigating and prosecuting crimes against elders and dependent adults, adults with a disability, and to the State Department of Health Care Services, the State Department of Social Services, the county adult protective services agencies
agencies, and to the Long-Term Care Ombudsman in evaluating and documenting criminal abuse against elders and dependent adults. adults with a disability.
(i) The state Long-Term Care Ombudsman, the Licensing and Certification Division in the State Department of Health Services, Public Health, and the Statistical Services Bureau in the State Department of Social Services shall report to the bureau all instances of abuse
and neglect of elders and dependent adults,
adults with a disability, as defined in Section 15610 of the Welfare and Institutions Code, which that come to their attention.
(j) The bureau shall collect information on a statewide basis regarding cases of abuse and neglect of patients in health facilities receiving payments from the Medi-Cal program for the primary purpose of analyzing the information it collects and disseminating its conclusions to local law enforcement agencies and to regulatory and licensing authorities.
(k) For purposes of this section, “bureau” means the Bureau of Medi-Cal Fraud and Elder Abuse
in the Office of the Attorney General.
SEC. 2.SEC. 3.
Section 288 of the Penal Code is amended to read:288.
(a) Except as provided in subdivision (i), a person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under 14 years of age, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.(b) (1) A person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(2) A person who is a caretaker and commits an act described in subdivision (a) upon a person with a disability by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.
(c) (1) A person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child 14 or 15 years of age, and that person is at least 10 years older than the child, is guilty of
a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.
(2) A person who is a caretaker and commits an act described in subdivision (a) upon a person with a disability, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this section or Section 288.5, the peace officer, district
attorney, and the court shall consider the needs of the child victim or person with a disability and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the victim who is a person with a disability resulting from participation in the court process.
(e) (1) Upon the conviction of a person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837.
(2) If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the
following definitions apply:
(1) “Caretaker” means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elders or persons with
disabilities:
(A) Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve persons with disabilities and postsecondary educational institutions that serve persons with disabilities or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care
facilities.
(O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) “Board and care facilities” means licensed or unlicensed facilities that provide assistance with one or more of the following activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) (A) “Person with a disability” means a person, regardless of whether the person lives independently, who has a physical or mental impairment that substantially restricts
the person’s ability to carry out normal activities or to protect the person’s rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. “Person with a disability” includes a person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) “Dependent person” means a person with a disability.
(g) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals
personally commit, conspire, aid, abet, or facilitate an act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).
(h) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the
person with a disability who is under care.
(i) (1) A person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.
(2) The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.
(3) As used in this subdivision, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.
SEC. 3.SEC. 4.
The heading of Chapter 13 (commencing with Section 368) of Title 9 of Part 1 of the Penal Code is amended to read:CHAPTER 13. Crimes Against Elders and Persons with Disabilities
SEC. 5.
Section 368.6 of the Penal Code is amended to read:368.6.
(a) This section shall be known, and may be cited, as the Senior and Disability Justice Act.(b) As used in this section, the following terms have the following meanings:
(1) “Adult with a disability” has the same meaning as in Section 368.
(1)
(2) “Agency
protocol” means a procedure adopted by a local law enforcement agency consistent with the agency’s organizational structure, and stated in a policy adopted pursuant to this section, to effectively and accountably carry out a particular agency responsibility.
(2)
(3) “Caretaker” has the same meaning as defined in Section 368 and includes caretakers whether or not they are
paid. paid and unpaid caretakers.
(3)
(4) “Dependent adult” has the same meaning as defined in Section 368. means an adult with a disability.
(4)
(5) “Dependent person” has the same meaning as defined in Section 288. means a person with a disability.
(5)
(6) “Disability” includes mental disability and physical disability as defined in Sections 12926 and 12926.1 of the Government Code, regardless of whether those disabilities are temporary, permanent, congenital, or acquired by heredity, accident, injury, illness, or advanced age.
(6)
(7) “Domestic violence” has the same meaning as defined in Section 13700 and includes a violation of Section 273.5.
(7)
(8) “Elder” has the same meaning as defined in Section 368.
(8)
(9) “Elder and dependent adult
disability abuse” means a violation of Section 368 and includes physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm, pain, or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(9)
(10) “Hate crime” has the same meaning as set forth in Sections 422.55 and 422.56.
(10)
(11) “Human trafficking” means a violation of Section 236.1.
(11)
(12) “Local law enforcement agency” means every municipal police department and county sheriffs’ department.
(12)
(13) “Mandated reporting requirements” means any of the following:
(A) The requirements of Article 2.5 (commencing with Section 11164) of Chapter 2 of Title 1 of Part 4.
(B) The requirements of Sections 15630 and 15630.1 and subdivision (d) of Section 15640 of the Welfare and Institutions Code concerning reporting of elder and dependent adult disability abuse.
(C) The prohibitions on inhibiting or impeding reporting pursuant to the requirements in subparagraph (A) or (B).
(13)“Senior and disability victimization” means any of the following:
(A)Elder and dependent adult abuse.
(B)Unlawful interference with a mandated report.
(C)Homicide of an elder, dependent adult, or other adult or child with a disability.
(D)Sex crimes against elders, dependent adults, or other adults and children with disabilities.
(E)Child abuse of children with disabilities.
(F)Violation of relevant protective orders.
(G)Hate crimes against persons with actual or perceived disabilities, including, but not limited to, disabilities caused by advanced age, or those associated with them.
(H)Domestic violence against elders, dependent adults, and adults and children with disabilities, including disabilities caused by advanced age.
(14) “Person with a disability” has the same meaning as in Section 288.
(14)
(15) “Relevant protective order” means an order by a California or out-of-state court, including, but not limited to, a tribal, federal, United States territorial, or United States military court, protecting an elder, dependent adult, dependent person, or other adult or child elder or person with a disability.
(15)
(16) “Responsible agency” means a local, state, or federal agency with responsibilities concerning senior and disability victimization. This includes, but is not limited to, law enforcement agencies, adult protective services agencies, child protective services agencies, the Office of the State Long-Term Care Ombudsman and its designated local agencies, fire and emergency medical services, regional centers pursuant to the Lanterman Developmental Disabilities Services Act, elder and disability service agencies, sexual assault and domestic violence agencies, elder and dependent adult death review teams,
teams for elders and adults with disabilities, local government human relations commissions, coroners, probate court investigators, public administrators, public guardians, public conservators, district attorney’s offices, city attorney’s offices or other prosecutors with jurisdiction, the Bureau of Medi-Cal Fraud and Elder Abuse, state licensing agencies, the United States Attorney’s offices, and the Federal Bureau of Investigation.
(17) “Senior and disability victimization” means any of the following:
(A) Elder and disability abuse.
(B) Unlawful interference with a mandated report.
(C) Homicide of an elder or person with a disability.
(D) Sex crimes against elders or persons with disabilities.
(E) Child abuse of children with disabilities.
(F) Violation of relevant protective orders.
(G) Hate crimes against persons with actual or perceived disabilities, including, but not limited to, disabilities caused by advanced age, or those associated with them.
(H) Domestic violence against elders or persons with disabilities, including disabilities caused by advanced age.
(16)
(18) “Sex crime” means (A) an offense requiring registration pursuant to the Sex Offender Registration Act or (B) a violation of Section 729 of the Business and Professions Code.
(17)
(19) “State protection and advocacy agency” means the agency designated pursuant to Division 4.7 (commencing with Section 4900) of the Welfare and Institutions Code.
(18)
(20) “Unlawful interference in a mandated report” includes, but is not limited to, inhibiting or impeding reporting in violation of the mandated reporting requirements or a violation of Section 136.1 that concerns the mandated reporting requirements.
(c) Each local law enforcement agency may adopt a policy regarding senior and disability victimization. A municipal police department or county sheriffs’ department that adopts or revises a policy regarding elder and dependent adult disability abuse or senior and disability victimization on or after April 13, 2021, shall include, but not be limited to, all of the following items:
(1) Information on the wide prevalence of elder
and dependent adult disability abuse, sexual assault, other sex crimes, hate crimes, domestic violence, human trafficking, and homicide against adults and children with disabilities, including disabilities caused by advanced age, and including those crimes often committed by caretakers.
(2) A statement of the agency’s commitment to providing equal protection and demonstrating respect for all persons regardless of age or disabilities, and to conscientiously enforcing all criminal laws protecting elders, and adults and children with disabilities, regardless of whether these crimes also carry civil penalties.
(3) The definitions and elements of the offenses specified in paragraph (2) of
subdivision (b) of Section 288 and in subdivisions (c) and (f) of Section 368, noting that they protect many persons with disabilities regardless of the fact they live independently.
(4) (A) The fact that elder and dependent adult
disability abuse, sex crimes, child abuse, domestic violence, and any other criminal act, when committed in whole or in part because of the victim’s actual or perceived disability, including disability caused by advanced age, is also a hate crime.
(B) In recognizing suspected disability-bias hate crimes, the policy shall instruct officers to consider whether there is any indication that the perpetrator committed the criminal act because of bias, including, but not limited to, the bias motivations described in subparagraphs (B) and (C) of paragraph (3) of subdivision (a) of Section 422.87.
(5) An agency protocol and schedule for training officers with both of the following:
(A) The training materials made available by the Commission on Peace Officer Standards and Training
pursuant to Sections 13515, 13515.25, 13515.27, 13515.28, 13515.29, 13515.295, 13515.30, 13515.35, and 13519.2. In the case of the training materials identified in each of these sections, the agency protocol shall require the training for, at a minimum, the category of officers for whom that section states that the training is intended or required or, if the section does not state for whom the training material is required or intended, those officers identified pursuant to paragraph (16).
(B) The agency’s policy pursuant to this section.
(6) A requirement that when an officer intends to interview a victim or witness to an alleged crime and the victim or witness reports or demonstrates deafness or hearing loss, the officer first secure the services of an interpreter as defined in Section 754 of the Evidence Code. The agency shall have a protocol for securing the services of the
interpreter to ensure accurate interpretation.
(7) An agency protocol for providing appropriate training concerning the agency’s policy to dispatchers, community services officers, front desk personnel, and other civilian personnel who interact with the public.
(8) (A) The fact that the agency requires officers to investigate every report of senior and disability victimization, and does not dismiss any reports as merely civil matters or for any other reason without an investigation.
(B) An appendix to the policy describing the requirements for these investigations, including, but not limited to, all of the following:
(i) An agency protocol or protocols for cooperating and collaborating whenever possible with the Bureau of Medi-Cal
Fraud and Elder Abuse, other state law enforcement agencies with jurisdiction, adult and child protective services, local long-term care ombudsman programs, and, when appropriate, other responsible agencies.
(ii) Appropriate techniques for interviewing potential victims and witnesses with cognitive or communication disabilities, including, but not limited to, avoiding repeated interviews when possible.
(iii) The elements of the investigation, including, but not limited to, all of the following:
(I) Checking prior reports received by adult or child protective services agencies, local long-term care ombudsman programs, except as provided in Section 9725 of the Welfare and Institutions Code, and any other responsible agencies.
(II) Interviewing each
alleged victim, each witness, and each suspect who is available.
(III) Viewing all body-worn camera videos and all other films.
(IV) Listening to all calls from mandated reports or other callers.
(V) Making reasonable efforts to determine whether any a person committed unlawful interference in a mandated report.
(iv) An agency protocol for transmitting the crime report to the appropriate prosecution office if the law enforcement agency recommends prosecution.
(v) If the agency deems it appropriate,
the Investigation Response section and Addendum B of the San Diego County Elder and Dependent Adult Abuse Blueprint or the Elder Abuse Guide for Law Enforcement of the National Center on Elder Abuse at the University of Southern California.
(9) (A) A statement that it is the agency’s policy to make arrests or to seek arrest warrants, in accordance with Section 836, and, in the case of domestic violence, as allowed by Section 13701. The policy shall also state the agency protocol for seeking those arrest warrants.
(B) The agency protocol for arrests for senior and disability victimization other than domestic violence, which shall include, but not be limited to, the following requirements:
(i) In the case of a When
senior and disability victimization is committed in an officer’s presence, including, but not limited to, a violation of a relevant protective order, the officer shall make a warrantless arrest based on probable cause when necessary or advisable to protect the safety of the victim or others.
(ii) In the case of When a felony is not committed in an officer’s presence, the officer shall make a warrantless arrest based on probable cause when necessary or advisable to protect the safety of the victim or others.
(iii) In the case of When a misdemeanor is not committed in the officer’s presence, including, but not limited to, misdemeanor unlawful interference with a mandated report or a misdemeanor violation of a relevant protective order, or when necessary or advisable to protect the safety of the victim or others, the agency shall seek an arrest warrant based on probable cause.
(iv) The policy shall state the agency protocol for seeking arrest warrants based on probable cause for crimes for which no
an arrest has not been made.
(10) The fact that senior and disability victimization crimes are also domestic violence subject to the mandatory arrest requirements of Section 836 if they meet the elements described in Section 273.5, including, but not limited to, a violation by a caretaker or other person who is or was a cohabitant of the victim, regardless of whether the cohabitant is or was a relative of, or in an intimate personal relationship with, the victim.
(11) (A) The fact that many victims of sexual assault and other sex crimes delay disclosing the crimes for reasons including, but not limited to, shame, embarrassment, self-doubt, fear of being disbelieved, and fear of retaliation by the perpetrator or
others.
(B) An instruction pursuant to Sections 264.2 and 679.04 to notify potential victims of sex crimes that they have a right to have a support person of their choice present at all times.
(12) The agency’s cross-reporting requirements, including, but not limited to, those pursuant to Section 15640 of the Welfare and Institutions Code, and an agency protocol for carrying out these cross-reporting requirements.
(13) Mandated reporting requirements, including, but not limited to, officers’ mandated reporting responsibilities and an agency protocol for carrying out the officers’ mandated reporting responsibilities.
(14) The fact that victims and witnesses with disabilities, including cognitive and communication disabilities, can be highly credible
witnesses when interviewed appropriately by trained officers or other trained persons.
(15) A procedure for first-responding officers to follow when interviewing persons with cognitive and communication disabilities until officers, or staff of other responsible agencies, with more advanced training, are available. The procedure shall include an instruction to avoid repeated interviews whenever possible.
(16) The unit or office, or multiple units or offices of the agency, or the title or titles of an officer or officers, tasked with the following responsibilities:
(A) Receiving advanced officer training on senior and disability victimization, available from the Commission on Peace Officer Standards and Training, the United States Department of Justice, the Disability and Abuse Project of the Spectrum Institute, or
other sources.
(B) Acting as a liaison to other responsible agencies to increase cooperation and collaboration among them while retaining the law enforcement agency’s exclusive responsibility for criminal investigations.
(C) Reaching out to the senior and disability communities and to the public to encourage prevention and reporting of senior and disability victimization.
(17) An agency protocol for seeking emergency protective orders by phone from a court at any time of the day or night pursuant to subdivision (d) of Section 6250 of the Family Code, including the court system telephone number for an officer to call, and a requirement that an officer utilize the agency protocol whenever necessary or advisable to protect a victim’s safety.
(18) A
requirement that all officers treat an unexplained or suspicious death of an elder, dependent adult, elder or other adult or child person with a disability as a potential homicide until a complete investigation, including an autopsy, is completed, and not to assume that the death of an elder or person with a disability is natural simply because of the age or disability of the deceased.
(19) A requirement that, whenever an officer verifies that a relevant protective order has been issued, the officer shall make reasonable efforts to determine if the order prohibits the
possession of firearms or requires the relinquishment of firearms, and if the order does so, a requirement that the officer shall make reasonable efforts to do each of the following:
(A) Inquire whether the restrained person possesses firearms. The officer may make this effort by asking the restrained person and the protected person.
(B) Query through the California Law Enforcement Telecommunications System to determine if any firearms are registered to the restrained person.
(C) Receive or seize prohibited firearms located in plain view or pursuant to a consensual or other lawful search, in compliance with Division 4 (commencing with Section 18250) of Title 2 of Part 6.
(20) Civil remedies and resources available to victims, including, but not limited
to, the program administered by the California Victim Compensation Board.
(21) The complete contents of any model policy on senior and disability victimization that the Commission on Peace Officer Standards and Training may develop based on this section, regardless of whether that model policy includes items in addition to those listed in this section.
(22) Use of the full term “elder and dependent adult disability abuse” in every reference to that crime, with no shorthand terms, including, but not limited to, “elder abuse” or “adult abuse.”
(23) A detailed checklist of first-responding officers’ responsibilities, including, but
not limited to, all of the following:
(A) Taking responsibility for the safety and well-being of the potential victims and witnesses and treating all potential victims, witnesses, and suspects with dignity and respect.
(B) Complying with the provisions of the agency’s policy requirements for arrests and mandatory seeking of arrest warrants pursuant to paragraph (9) and the requirements for seeking emergency protective orders pursuant to paragraph (17).
(C) Following the policy’s guidelines for interviewing persons with cognitive or communication disabilities pursuant to paragraph (15).
(D) Recognizing that some elders and adults and children
people with cognitive or communication disabilities may have difficulty narrating events, appear to be poor historians, or lack short-term memory, which adds to their vulnerability and therefore requires officers to make special efforts to provide them with equal protection.
(E) Documenting the scene.
(F) Obtaining a signed medical release from potential victims.
(G) Interviewing caretakers separately, recognizing that in some cases, the caretaker is the perpetrator.
(H) Recognizing that victim cooperation is sometimes unnecessary for prosecution, and that in some cases allowing victims the option of preventing prosecution creates an opportunity for the perpetrators to obstruct justice by pressuring or
threatening the victims. Each dispatch call or case should be investigated on its own evidential merits.
(I) Taking other actions necessary to comply with the provisions of the law enforcement agency’s policy pursuant to this section.
(24) The relevant content of any memoranda of understanding or similar agreements or procedures for cooperating with other responsible agencies, consistent with Section 368.5.
(25) A statement of the agency chief executive’s responsibilities, including, but not limited to, all of the following:
(A) Taking leadership within the agency and in the community, including by speaking out publicly in major cases of senior and disability victimization, to assure the community of the agency’s support for the victims and their
families and for others in the community who are terrorized and traumatized by the crimes, and to encourage victims and witnesses to the crimes or similar past or future crimes to report those crimes to help bring the perpetrators to justice and prevent further crimes.
(B) Carrying out specific responsibilities pursuant to this subdivision, including, but not limited to, developing and including agency protocols in this policy.
(C) Ensuring that all officers and staff carry out their responsibilities under the policy.
(26) An agency protocol for transmitting and periodically retransmitting the policy and any related orders to all officers, including a simple and immediate way for officers to access the policy in the field when needed.
(27) (A) A requirement that all officers be familiar with the policy and carry out the policy at all times except in the case of unusual compelling circumstances as determined by the agency’s chief executive or by another supervisory or command-level officer designated by the chief executive.
(B) A responsible officer who makes a determination allowing a deviation from the policy shall produce a report to the agency’s chief executive stating the unusual compelling circumstances. The policy shall include an agency protocol for providing copies of those reports to the alleged victims and reporting parties. The chief executive shall retain the report for a minimum of five years and shall make it available to the state protection and advocacy agency upon request.
(28) For each agency protocol, either a specific title-by-title list of officers’ responsibilities, or a specific
office or unit in the law enforcement agency responsible for implementing the protocol.
(d) If a law enforcement agency adopts or revises a policy regarding senior and disability victimization on or after April 13, 2021, the chief executive shall make it available to the state protection and advocacy agency upon request.
SEC. 4.SEC. 6.
Section 502.9 of the Penal Code is amended to read:502.9.
Upon conviction of a felony violation under this chapter, the fact that the victim was an elder or a person with a disability, as defined in Section 288, shall be considered a circumstance in aggravation when imposing a term under subdivision (b) of Section 1170.SEC. 5.SEC. 7.
Section 515 of the Penal Code is amended to read:515.
Upon conviction of a felony violation under this chapter, the fact that the victim was an elder or a person with a disability, as defined in Section 288, shall be considered a circumstance in aggravation when imposing a term under subdivision (b) of Section 1170.SEC. 6.SEC. 8.
Section 525 of the Penal Code is amended to read:525.
Upon conviction of a felony violation under this chapter, the fact that the victim was an elder or a person with a disability, as defined in Section 288, shall be considered a circumstance in aggravation when imposing a term under subdivision (b) of Section 1170.SEC. 7.SEC. 9.
Section 861.5 of the Penal Code is amended to read:861.5.
(a) Notwithstanding subdivision (a) of Section 861, the magistrate may postpone the preliminary examination for one court day in order to accommodate the special physical, mental, or emotional needs of a child witness who is 10 years of age or younger or a person with a disability, as defined in Section 288.(b) The magistrate shall admonish both the prosecution and defense against coaching the witness prior to the witness’ next appearance in the preliminary examination.
SEC. 8.SEC. 10.
Section 868.7 of the Penal Code is amended to read:868.7.
(a) Notwithstanding any other law, the magistrate may, upon motion of the prosecutor, close the examination in the manner described in Section 868 during the testimony of a witness who is either of the following:(1) A minor or a person with a disability as defined in Section 288, with a substantial cognitive impairment and is the complaining victim of a sex offense, where testimony before the general public would be likely to cause serious psychological harm to the witness and where no alternative procedures, including, but not limited to, video recorded deposition or contemporaneous examination in another place communicated to the courtroom by means of closed-circuit
television, are available to avoid the perceived harm.
(2) A person whose life would be subject to a substantial risk in appearing before the general public, and where no alternative security measures, including, but not limited to, efforts to conceal the person’s features or physical description, searches of members of the public attending the examination, or the temporary exclusion of other actual or potential witnesses, would be adequate to minimize the perceived threat.
(b) When public access to the courtroom is restricted during the examination of a witness pursuant to this section, a transcript of the testimony of the witness shall be made available to the public as soon as is practicable.
SEC. 11.
Section 13515 of the Penal Code is amended to read:13515.
(a) Every city police officer or deputy sheriff at a supervisory level and below who is assigned field or investigative duties shall complete an elder and(1) Relevant laws.
(2) Recognition of elder and dependent adult
disability abuse.
(3) Reporting requirements and procedures.
(4) Neglect of elders and dependent adults. adults with a disability.
(5) Fraud of elders and dependent adults. adults with a disability.
(6) Physical abuse of elders and dependent adults.
adults with a disability.
(7) Psychological abuse of elders and dependent adults. adults with a disability.
(8) The role of the local adult protective services and public guardian offices.
(9) The legal rights of, and remedies available to, victims of elder or dependent adult disability abuse pursuant to Section 15657.03 of the Welfare and Institutions Code, including emergency protective orders
and the option to request a simultaneous move-out order, and temporary restraining orders.
(b) When producing new or updated training materials pursuant to this section, the commission shall consult with the Bureau of Medi-Cal Fraud and Elder Abuse, local adult protective services offices, the Office of the State Long-Term Care Ombudsman, and other subject matter experts. Any new or updated training materials shall address all of the following:
(1) The jurisdiction and responsibility of law enforcement agencies pursuant to Section 368.5.
(2) The fact that the protected classes of “dependent person”
“person with a disability,” as defined in Section 288 and “dependent adult”
“adult with a disability,” as defined in Section 368 368, include many persons with disabilities, regardless of the fact that most of those persons live independently.
(3) Other relevant information and laws.
(c) The commission also may inform the law enforcement agencies of other relevant training materials.
SEC. 12.
The heading of Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code is amended to read:
CHAPTER
11. Elder Abuse and Dependent Adult Disability Civil Protection Act
SEC. 13.
Section 15610.07 of the Welfare and Institutions Code is amended to read:15610.07.
(a) “Abuse of an elder or(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(3) Financial abuse, as defined in Section
15610.30.
(b)This section shall become operative on July 1, 2016.
(b) “Abuse of an elder or dependent adult” means abuse of an elder or an adult with a disability.
SEC. 9.SEC. 14.
Section 15610.23 of the Welfare and Institutions Code is amended to read:15610.23.
(a) “Adult with a disability” means a person, regardless of whether the person lives independently, between 18 and 64 years of age who resides in this state and who has physical or mental limitations that restrict the person’s ability to carry out normal activities or to protect the person’s rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.(b) “Adult with a disability” includes a person between 18 and 64 years of age who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(c) “Dependent adult” means an adult with a disability as it is defined in this section.
SEC. 15.
Section 15630 of the Welfare and Institutions Code is amended to read:15630.
(a)(b) (1) Any A mandated reporter who, in his or her
the person’s professional capacity, or within the scope of his or her their 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 an adult with a disability that he or she
the elder or adult with a disability 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 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 internet report shall be made through the confidential Internet
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 the reporter’s
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 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 disability 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
the church, denomination, or organization is authorized or accustomed to hear those communications and under the discipline tenets, customs, or practices of his or her the church, denomination, or organization, has a duty to keep those communications secret.
(B) This subdivision shall not be construed to
does not modify or limit a clergy member’s duty to report known or suspected elder and dependent adult disability abuse if he or she the clergy member 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. the care of elders or people with disabilities.
(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 is not 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 with a disability that he or she the person 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 with a disability
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 does not 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
is not
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
does not 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 applies 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 A
mandated reporter who has knowledge, or reasonably suspects, that types of elder or dependent adult disability abuse for which reports are not mandated have been inflicted upon an elder or dependent adult, or that his or her an adult with a disability, that the person’s 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 an adult with a disability for which a report is or is not mandated have occurred, and there is agreement among them, the telephone report or Internet
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 internet report, as authorized by Section 15658, of a known or suspected instance of elder or dependent adult disability abuse shall include, if known, the name of the
person making the report, the name and age of the elder or dependent adult,
adult with a disability, the present location of the elder or dependent adult, adult with a disability, the names and addresses of family members or any other adult responsible for the elder’s or dependent adult’s care, care of the elder or adult with a disability, the nature and extent of the elder’s or dependent adult’s condition, condition of the elder or adult with a disability, the date of the
incident, and any other information, including information that led that person to suspect elder or dependent adult disability abuse, as requested by the agency receiving the report.
(f) The reporting duties under this section are individual, and no a supervisor or administrator shall not impede or inhibit the reporting duties, and no
a person making the report shall not 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 When 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 When 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
does this section 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, adult with a disability, in violation of this section, is a misdemeanor, punishable by not more than six months in the a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. Any
A 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, an adult with a disability, 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 their 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” “adult with a disability” shall have the same meaning as in Section 15610.23.
