AB 2324: Elder or dependent adult abuse: disorderly conduct: mandated reporters.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-04-26
Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes procedures for the reporting, investigation, and prosecution of abuse of an elder or dependent adult, which is defined to mean physical abuse, neglect, abandonment, and financial abuse, among other forms of abuse. Existing law requires specified persons, known as mandated reporters, who, have observed or have knowledge of an incident that reasonably appears to be, or is told by an elder or dependent adult that he or she has experienced behavior constituting, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect to report the known or suspected instance of abuse, as specified. A failure to report is a misdemeanor.
This bill would also include in the definition of abuse of an elder or a dependent adult public shaming, which the bill would define as the taking, transmission, or dissemination of an image of an elder or dependent adult that a reasonable person would believe shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult. The bill would also make it a misdemeanor for a mandated reporter to fail to report public shaming of an elder or dependent adult. By expanding the scope of a crime, this bill would impose a state-mandated local program.Existing law makes it a misdemeanor for a person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits an elder or dependent adult to suffer or inflicts unjustifiable physical pain or mental suffering on him or her.This bill would also make it a misdemeanor to, under those same conditions, publicly shame, as defined, an elder or dependent adult. By expanding the scope of a crime, this bill would impose a state-mandated local program.Under existing law, it is disorderly conduct, punishable as a misdemeanor, to look through a hole or opening into, or to otherwise view by means of any instrumentality, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person inside.
Under existing law, it is disorderly conduct, punishable as a misdemeanor, for a person to use a concealed camera to secretly record another identifiable person under or through the clothing being worn by that other person, for the purposes of viewing the body or undergarments of that other person, without his or her consent, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of the other person, under circumstances in which the other person has a reasonable expectation of privacy.
Under existing law, it is disorderly conduct, punishable as a misdemeanor, to use a concealed camera to secretly record another identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body or undergarments of that other person, without the consent or knowledge of the other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that person.
Under existing law, it is disorderly conduct, punishable as a misdemeanor, to distribute the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in a sex act, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
This bill would require a mandated reporter to report a violation of the above-specified disorderly conduct crimes committed against an elder or dependent adult, as specified. The bill would make a violation of this requirement a misdemeanor. By expanding the application of a crime, 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.
Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes procedures for the reporting, investigation, and prosecution of abuse of an elder or dependent adult, which is defined to mean physical abuse, neglect, abandonment, and financial abuse, among other forms of abuse. Existing law requires specified persons, known as mandated reporters, who, have observed or have knowledge of an incident that reasonably appears to be, or is told by an elder or dependent adult that he or she has experienced behavior constituting, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect to report the known or suspected instance of abuse, as specified. A failure to report is a misdemeanor.
This bill would also include in the definition of abuse of an elder or a dependent adult public shaming, which the bill would define as the taking, transmission, or dissemination of an image of an elder or dependent adult that a reasonable person would believe shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult. The bill would also make it a misdemeanor for a mandated reporter to fail to report public shaming of an elder or dependent adult. By expanding the scope of a crime, this bill would impose a state-mandated local program.
Existing law makes it a misdemeanor for a person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits an elder or dependent adult to suffer or inflicts unjustifiable physical pain or mental suffering on him or her.
This bill would also make it a misdemeanor to, under those same conditions, publicly shame, as defined, an elder or dependent adult. By expanding the scope of a crime, 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.
Existing law, the Elder Abuse and Dependent Adult Civil Protection Act, establishes procedures for the reporting, investigation, and prosecution of abuse of an elder or dependent adult, which is defined to mean physical abuse, neglect, abandonment, and financial abuse, among other forms of abuse. Existing law requires specified persons, known as mandated reporters, who, have observed or have knowledge of an incident that reasonably appears to be, or is told by an elder or dependent adult that he or she has experienced behavior constituting, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect to report the known or suspected instance of abuse, as specified. A failure to report is a misdemeanor.
This bill would also include in the definition of abuse of an elder or a dependent adult public shaming, which the bill would define as the taking, transmission, or dissemination of an image of an elder or dependent adult that shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult. The bill would also make it a misdemeanor for a mandated reporter to fail to report public shaming of an elder or dependent adult. By expanding the scope of a crime, this bill would impose a state-mandated local program.
Existing law makes it a misdemeanor for a person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits an elder or dependent adult to suffer or inflicts unjustifiable physical pain or mental suffering on him or her.
This bill would also make it a misdemeanor to, under those same conditions, publicly shame, as defined, an elder or dependent adult. By expanding the scope of a crime, 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.
(a)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, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.
(b)(1)A 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, neglect, or public shaming, a violation of subdivision (j) of Section 647 of the Penal Code, 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, neglect, or public shaming, a violation of subdivision (j) of Section 647 of the Penal Code, 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 physicians 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 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 attorneys 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 members 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, neglect, or public shaming. a violation of subdivision (j) of Section 647 of the Penal Code.
(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)A 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. A 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 elders or dependent adults care, the nature and extent of the elders or dependent adults 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 a supervisor or administrator shall not impede or inhibit the reporting duties, and 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 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, neglect, or public shaming a violation of subdivision (j) of Section 647 of the Penal Code 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. 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, neglect, or public shaming a violation of subdivision (j) of Section 647 of the Penal Code 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.
SEC. 5.Section 15656 of the Welfare and Institutions Code is amended to read:15656.(a)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering upon him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years.(b)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, inflicts unjustifiable physical pain or mental suffering on him or her, or publicly shames him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health may be endangered, is guilty of a misdemeanor.(c)Any caretaker of an elder or a dependent adult who violates any provision of law prescribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years when the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), and by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding one year, or by both that imprisonment and fine, when the money, labor, or real or personal property taken is of a value not exceeding nine hundred fifty dollars ($950).(d)As used in this section, caretaker means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.(e)Conduct covered in subdivision (b) of Section 15610.57 shall not be subject to this section.SEC. 6.SEC. 2.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.
(b)(1)A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits an elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering on him or her, or having the care or custody of an elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.
(2)If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A)Three years if the victim is under 70 years of age.
(B)Five years if the victim is 70 years of age or older.
(3)If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A)Five years if the victim is under 70 years of age.
(B)Seven years if the victim is 70 years of age or older.
(c)A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, inflicts unjustifiable physical pain or mental suffering on him or her, or publicly shames him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d)A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:
(1)By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2)By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(e)A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:
(1)By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2)By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(f)A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(g)As used in this section, elder means a person who is 65 years of age or older.
(h)As used in this section, dependent adult means a person who is between the ages of 18 and 64, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. Dependent adult includes any person between the ages of 18 and 64 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.
(i)As used in this section, caretaker means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
(j)As used in this section, publicly shames has the same meaning as defined in Section 15610.64 of the Welfare and Institution Code.
(k)This section shall not preclude prosecution under both this section and Section 187 or 12022.7 or any other law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for any single offense.
(l)In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay. A defendant shall not be denied probation because of his or her inability to pay.
(m)Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
SEC. 2.Section 15610.07 of the Welfare and Institutions Code is amended to read:15610.07.Abuse of an elder or a dependent adult means any of the following:
(a)Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(b)The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(c)Financial abuse, as defined in Section 15610.30.
(d)Public shaming, as defined in Section 15610.64.
SEC. 3.Section 15610.64 is added to the Welfare and Institutions Code, to read:15610.64.Public shaming or publicly shames means the taking, transmission, or dissemination of an image of an elder or dependent adult that a reasonable person would believe shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult. Public shaming or publicly shames does not include the taking, transmission, or dissemination of an image of an elder or dependent adult that is for clinical, safety or security, legal, or reporting purposes and that is in compliance with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).
SEC. 4.Section 15630 of the Welfare and Institutions Code is amended to read:15630.(a)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, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.
(b)(1)A 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, neglect, or public shaming, 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, neglect, or public shaming, 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 physicians 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 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 attorneys 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 members 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, neglect, or public shaming.
(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)A 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. A 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 elders or dependent adults care, the nature and extent of the elders or dependent adults 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 a supervisor or administrator shall not impede or inhibit the reporting duties, and 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 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, neglect, or public shaming 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. 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, neglect, or public shaming 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.
SEC. 5.Section 15656 of the Welfare and Institutions Code is amended to read:15656.(a)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering upon him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years.
(b)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, inflicts unjustifiable physical pain or mental suffering on him or her, or publicly shames him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health may be endangered, is guilty of a misdemeanor.
(c)Any caretaker of an elder or a dependent adult who violates any provision of law prescribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years when the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), and by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding one year, or by both that imprisonment and fine, when the money, labor, or real or personal property taken is of a value not exceeding nine hundred fifty dollars ($950).
(d)As used in this section, caretaker means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
(e)Conduct covered in subdivision (b) of Section 15610.57 shall not be subject to this section.
SEC. 6.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.
(b)(1)Any A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any an elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, suffering on him or her, or having the care or custody of any an elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.
(2)If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A)Three years if the victim is under 70 years of age.
(B)Five years if the victim is 70 years of age or older.
(3)If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A)Five years if the victim is under 70 years of age.
(B)Seven years if the victim is 70 years of age or older.
(c)Any A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, suffering on him or her, or publicly shames him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
(d)Any A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:
(1)By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2)By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(e)Any A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:
(1)By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).
(2)By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).
(f)Any A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(g)As used in this section, elder means any a person who is 65 years of age or older.
(h)As used in this section, dependent adult means any a person who is between the ages of 18 and 64, who has physical or mental limitations which that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. Dependent adult includes any person between the ages of 18 and 64 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.
(i)As used in this section, caretaker means any a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.
(j)As used in this section, publicly shames has the same meaning as defined in Section 15610.64 of the Welfare and Institution Code.
(j)Nothing in this(k)This section shall not preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for any single offense.
(k)(l)In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. Any A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no pay. A defendant shall not be denied probation because of his or her inability to pay.
(l)(m)Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.
SEC. 2.Section 15610.07 of the Welfare and Institutions Code is amended to read:15610.07.(a)Abuse of an elder or a dependent adult means any of the following:
(1)(a)Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.
(2)(b)The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(3)(c)Financial abuse, as defined in Section 15610.30.
(d)Public shaming, as defined in Section 15610.64.
(b)This section shall become operative on July 1, 2016.SEC. 3.Section 15610.64 is added to the Welfare and Institutions Code, to read:15610.64.Public shaming or publicly shames means the taking, transmission, or dissemination of an image of an elder or dependent adult that shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult.
SEC. 4.Section 15630 of the Welfare and Institutions Code is amended to read:15630.(a)Any 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, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.
(b)(1)Any A 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 public shaming, 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 public shaming, 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 physicians 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 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 attorneys 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 members 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. neglect, or public shaming.
(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 A 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 A 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 elders or dependent adults care, the nature and extent of the elders or dependent adults 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 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 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 neglect, or public shaming 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 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 neglect, or public shaming 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.
SEC. 5.Section 15656 of the Welfare and Institutions Code is amended to read:15656.(a)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering upon him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years.
(b)Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts unjustifiable physical pain or mental suffering on him or her, or publicly shames him or her, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation such that his or her person or health may be endangered, is guilty of a misdemeanor.
(c)Any caretaker of an elder or a dependent adult who violates any provision of law prescribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years when the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), and by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding one year, or by both that imprisonment and fine, when the money, labor, or real or personal property taken is of a value not exceeding nine hundred fifty dollars ($950).
(d)As used in this section, caretaker means any person who has the care, custody, or control of of, or who stands in a position of trust with, an elder or a dependent adult.
(e)Conduct covered in subdivision (b) of Section 15610.57 shall not be subject to this section.
SEC. 6.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| May 23, 2018 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Apr 30, 2018 | Re-referred to Com. on APPR. |
| Apr 26, 2018 | Read second time and amended. |
| Apr 25, 2018 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 7. Noes 0.) (April 24). |
| Apr 18, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Apr 19, 2018 | Re-referred to Com. on PUB. S. |
| Apr 18, 2018 | From committee: Do pass and re-refer to Com. on PUB. S. (Ayes 4. Noes 0.) (April 17). Re-referred to Com. on PUB. S. |
| Mar 1, 2018 | Referred to Coms. on AGING & L.T.C. and PUB. S. |
| Feb 14, 2018 | From printer. May be heard in committee March 16. |
| Feb 13, 2018 | Read first time. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Apr 24, 2018 | Do pass as amended, and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Public Safety |
Passed |
|
| Apr 17, 2018 | Do pass and be re-referred to the Committee on [Public Safety] | Assembly Standing Committee on Aging and Long-Term Care |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| AARP California | ** Support | Apr 23, 2018 |
| California Advocates for Nursing Home Reform | ** Support | Apr 16, 2018 |
| California Assisted Living Association | * Indeterminate | Apr 17, 2018 |
| California Commission on Aging | * Support | Apr 17, 2018 |
| California Long-Term Care Ombudsman Association | ** Support | Apr 23, 2018 |
| California Long-Term Care Ombudsman Association - Sponsor | ** Support | Apr 16, 2018 |
| California Retired Teachers Association | ** Support | Apr 23, 2018 |
| Capital Response Team | * Support | Apr 17, 2018 |
| El Dorado County Long-Term Care Ombudsman Program | ** Support | Apr 16, 2018 |
| Hearts That Matter | * Support | Apr 17, 2018 |
| Humboldt Del-Norte Counties Long Term Care Ombudsman | ** Support | Apr 23, 2018 |
| Imperial County Long Term Care Ombudsman Program | ** Support | Apr 23, 2018 |
| Kings County Commission On Aging Council | ** Support | Apr 23, 2018 |
| Leadingage California | * Indeterminate | Apr 17, 2018 |
| Long Term Care Services Of Ventura County, Inc. | ** Support | Apr 16, 2018 |
| Long-Term Care Ombudsman Services of San Luis Obispo County | * Support | Apr 17, 2018 |
| ombudsman services of san mateo county | ** Support | Apr 23, 2018 |
| Sacramento Long Term Care Ombudsman | * Support | Apr 17, 2018 |
| Stanislaus Long-Term Care Ombudsman Program | ** Support | Apr 16, 2018 |
| WISE & Healthy Aging Long-Term Care Ombudsman Program | ** Support | Apr 16, 2018 |
| Wise and Healthy Aging Long-Term Care Ombudsman Program | * Support | Apr 17, 2018 |
Date of Hearing: May 23, 2018
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
ABPCA Bill Id:AB 2324
Author:(Rubio) – As Amended Ver:April 26, 2018
Policy Committee: | Aging and Long Term Care | Vote: | 4 - 0 |
Public Safety | 7 - 0 |
Urgency: No State Mandated Local Program: Yes Reimbursable: No
SUMMARY:
This bill requires mandated reporters of elder or dependent adult abuse to report the crime of invasion of privacy.
FISCAL EFFECT:
Potential minor and absorbable costs to agencies that may receive complaints or reports of elder or dependent adult abuse, including the California Department of Public Health, Department of Social Services, and the Office of the Long-Term Care Ombudsman (various funds).
COMMENTS:
- Purpose. According to the author, there has been an increase in complaints of long-term care facility staff taking unauthorized photographs and video of residents in degrading situations and then uploading them to the internet. However, current law does not trigger the requirement to report the taking of degrading or humiliating images taken without the subject’s knowledge or consent. This bill would impose a duty on mandated reporters to report known or suspected violations of the crime of invasion of privacy. This bill is supported by senior advocacy organizations and has no opposition.
- Background. Current law establishes crimes for "invasion of privacy." The law prohibits the invasion of privacy in a place where the subject has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This would include, for example, taking a picture of someone who is in a dressing room, or taking a picture of someone through a peephole. This bill would require current mandated reporters of elder or dependent adult abuse, such as a health care provider or clergy member, to report instances of this crime. Existing law articulates reporting requirements, depending on the nature and setting of the abuse. In community settings, mandated reports are often made to local adult protective services agencies. Most reports related to long-term care or other licensed facilities can be made to a licensing agency. Reports of physical abuse are required to be made to law enforcement.
Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081
Date of Hearing: April 24, 2018
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2324
Author:(Rubio) – As Amended Ver:
As Proposed to be Amended in Committee
SUMMARY: Requires mandated reporters of elder or dependent adult abuse to report the crime of invasion of privacy. Specifically, this bill:
- Requires mandated reporters of abuse of an elder or dependent adult to report known or suspected incidents of a violation of Penal Code section 647, subdivision (j) , invasion of privacy, committed against an elder or a dependent adult.
- Makes it a misdemeanor to fail to report this crime.
EXISTING LAW:
- Provides that any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside, is guilty of a misdemeanor. (Pen. Code, § 647, subd. (j)(1).)
- Provides that any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body or the undergarments of that other person, without his or her consent or knowledge, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of the person, is guilty of a misdemeanor. (Pen. Code, § 647, subd. (j)(3)(A).)
- States that one of the purposes of the Elder Abuse and Dependent Adult Civil Protection Act (the Act) is to “require health practitioners, care custodians, clergy members, and employees of county adult protective services agencies and local law enforcement agencies to report known or suspected cases of abuse of elders and dependent adults.” (Welf. & Inst. Code, § 15601, subd. (a).)
- Defines an “elder” for purposes of the Act as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.)
- Defines a “dependent adult” for purposes of the Act as “any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.” This includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as specified. (Welf. & Inst. Code, § 15610.27.)
- Provides that any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter under the Act.
- Requires any mandated reporter under the Act who, within the scope of his or her employment, observes, has knowledge of physical abuse, financial abuse, or neglect, or is told by an elder or dependent adult that he or she has experienced abuse, or reasonably suspects abuse, to immediately report the known or suspected abuse, as specified. (Welf. & Inst. Code, § 15630, subd. (b)(1).)
- Provides that if the abuse has occurred in long-term care facility, except a state mental hospital or developmental center, the report shall be made to the local ombudsperson or the local law enforcement agency, as specified. (Welf. & Inst. Code, § 15630, subd. (b)(1)(A) & (C).)
- Provides that 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 to the specified agency. (Welf. & Inst. Code, § 15630, subd. (c)(1).)
- Provides a mandated reporter in a long-term care facility other than a state mental health hospital or state developmental center, who has knowledge, or reasonably suspects abuse that is not mandated to be reported, may report the known or suspected abuse to the long-term care ombudsperson program. Except in an emergency, the local ombudsperson shall report the case of known or suspected abuse to the Department of Health Services. (Welf. & Inst. Code, § 15630, subd. (c)(2).)
- Punishes the failure to report, or impeding or inhibiting a report of, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect of an elder or dependent adult, as a misdemeanor, punishable by up to six months in the county jail, by a fine of up to $1,000, or by both. However, if the abuse results in death or great bodily injury, then the failure to report is punishable by up to one year in the county jail, by a fine of up to $5,000, or by both. (Welf. & Inst. Code, § 15630, subd. (h).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, “I have introduced AB 2324 to ensure elder and dependent adults no longer have to be subject to cruel and inhuman behavior at the hands of the people entrusted to take care of them. To say that a person with Alzheimer’s does not have the ability to experience shame simply because they cannot recall a degrading photo being taken or posted, is heartbreaking and impermissible. I am repulsed by the very thought that we have to introduce legislation to address this issue. However, while we would like to think people understand that intentionally mocking a senior or a dependent adult in their care is completely inappropriate, that is sadly not always the case. I recognize most individuals who work in nursing homes, or as caregivers, are wonderful people with hearts of gold. However, there are some bad actors out there that need to face the consequences for their poor behavior.”
- Unauthorized Invasion of Privacy: Section 647, subdivision (j)(3)(A), criminalizes the use of “a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.”
Similarly, subdivision (j)(1) of the same statute criminalizes looking through a hole or opening, into, or otherwise viewing, by means of any instrumentality, such as binoculars, a camera, or a mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside.
Both crimes essentially prohibited the invasion of privacy in a place where the subject has a reasonable expectation of privacy.
In In re M.H. (2016) 1 Cal.App.5th, the Court of Appeal discussed the scope of the right to privacy protected by the statutes. In that case, the juvenile court found true the allegation that the minor violated Penal Code section 647, subdivision (j)(1), when he recorded a student in a high school bathroom stall while that student was either masturbating or jokingly pretending to do so. Although the video recording did not show the student’s face, it did reveal the student’s distinctive shoes. The minor who took the video uploaded it to social media because he thought it was funny. (Id. at p. 702.) On appeal the minor argued that the student had no reasonable expectation of privacy in the bathroom stall, particularly in light of the fact that the student was audibly moaning for anyone in the bathroom to hear. (Ibid.) The Court of Appeal held that, “A student in a high school bathroom stall reasonably expects he will not be videoed and have that video disseminated on social media.” (Id. at p. 703.) The court noted, “the right to privacy is not one of total secrecy, but rather the right to control the nature and extent of firsthand dissemination.” (Ibid., citing Shulman v. Group W. Productions, Inc. (1998) 18 Cal.4th 200, 235.) The fact that an individual can be seen by one person does not mean that he or she can be forced to be seen by others. (Ibid., citing Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 291.)
According to the background provided by the author, there has been an increase in complaints of long-term care facility staff taking unauthorized photographs and video of residents in degrading situations and then uploading them to the Internet. Based on the principles in In re M.H., many of unauthorized photographs and videos would constitute a violation of invasion of privacy. According to the author’s background, oftentimes other staff knows about the improper conduct of the offending staff. However, current law does not trigger the mandatory reporting requirements to report the taking of degrading or humiliating images taken without the subject’s knowledge or consent. This bill would impose a duty on mandated reporters to report known or suspected violations of the crime of invasion of privacy.
- Argument in Support: According to the California Long-Term Care Ombudsman Association, “In 2016, an assisted living facility staff person took a video of a naked woman covered in her waste. The voice of a second staff person could be heard laughing and mocking the elderly woman during recording of the video. The staff person who made the video and distributed it on social media was successfully charged with a misdemeanor offense however the staff person, whose voice was clearly identified on the video, was not charged.
“The defense provided was that the activity was not included within the definition of elder abuse, thus the staff person, whose voice could be heard on the video, was not guilty of failing to report the taking of nor the distribution of the video, as a mandated reporter….
“AB 2324 will expand the mandated reporting requirements. Residential care staff that have knowledge of these criminal behaviors and chose not to disclose these incidents may be prosecuted as a failure to report.” - Related Legislation: AB 1934 (Jones-Sawyer) amends the definition of “dependent person” and “dependent adult” in various sections of the Codes, including the Elder Abuse and Dependent Adult Civil Protection Act, to include a person living on his or her own. AB 1934 is pending referral by the Senate Rules Committee.
- Prior Legislation: AB 40 (Yamada), Chapter 659, Statutes of 2012, requires mandated reporters of elder or dependent adult abuse to report suspected or known instances of physical abuse, occurring in a long-term care facility, to both the Long-Term Care Ombudsman and local law enforcement.
REGISTERED SUPPORT / OPPOSITION:
Support
AARP California
California Long-Term Care Ombudsman Association
California Retired Teachers Association
Humboldt Del-Norte Counties Long Term Care Ombudsman
Imperial County Long Term Care Ombudsman Program
Kings County Commission on Aging Council
Long Term Care Ombudsman Services of San Luis Obispo County
Ombudsman Services of San Mateo County
Opposition
None
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744
Date of Hearing: April 17, 2018
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Ash Kalra, Chair
ABPCA Bill Id:AB 2324 (
Author:Rubio) – As Introduced Ver:February 13, 2018
SUBJECT: Elder or dependent adult abuse: public shaming.
SUMMARY: Includes in the definition of “abuse of an elder or a dependent adult” public shaming, which the bill would define as the taking, transmission, or dissemination of an image of an elder or dependent adult that shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult. Specifically, this bill:
- Includes in the definition of “abuse of an elder or a dependent adult” public shaming, which the bill would define as the taking, transmission, or dissemination of an image of an elder or dependent adult that shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult.
- “Public shaming” or “publicly shames” means the taking, transmission, or dissemination of an image of an elder or dependent adult that a reasonable person believes shames, degrades, humiliates, or otherwise harms the personal dignity of the elder or dependent adult, and shall be presumed to be conduct that is outside the course and scope of the employment.
This does not include the taking, transmission, or dissemination of an image as permitted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), or images obtained for clinical, safety or security, legal or reporting purposes. - “Public” is defined as social media or other virtual platforms.
- The bill would make it a misdemeanor for a mandated reporter to fail to report public shaming of an elder or dependent adult.
EXISTING LAW:
- The Elder Abuse and Dependent Adult Civil Protection Act establishes procedures for the reporting, investigation, and prosecution of abuse of an elder or dependent adult, which is defined to mean physical abuse, neglect, abandonment, and financial abuse, among other forms of abuse.
- Existing law requires specified persons, known as mandated reporters, who, have observed or have knowledge of an incident that reasonably appears to be, or is told by an elder or dependent adult that he or she has experienced behavior constituting, physical abuse, abandonment, abduction, isolation, financial abuse, or neglect to report the known or suspected instance of abuse, as specified. A failure to report is a misdemeanor.
- Existing law makes it a misdemeanor for a person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits an elder or dependent adult to suffer or inflicts unjustifiable physical pain or mental suffering on him or her.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.
COMMENTS:
Author’s Statement: “I have introduced AB 2324 to ensure elder and dependent adults no longer have to be subject to cruel and inhuman behavior at the hands of the people entrusted to take care of them. To say that a person with Alzheimer’s does not have the ability to experience shame simply because they cannot recall a degrading photo being taken or posted, is heartbreaking and impermissible. I am repulsed by the very thought that we have to introduce legislation to address this issue. However, while we would like to think people understand that intentionally mocking a senior or a dependent adult in their care is completely inappropriate, that is sadly not always the case. I recognize most individuals who work in nursing homes, or as caregivers, are wonderful people with hearts of gold. However, there are some bad actors out there that need to face the consequences for their poor behavior.”
BACKGROUND:
Current law does not provide clear language prohibiting staff in licensed care facilities from the taking of unauthorized photographs and videos of residents in degrading or dehumanizing situations and posting these images to social media. In addition, current law does not trigger the mandatory reporting requirements to disclose if a mandated reporter has knowledge of the taking or disseminating of shaming, degrading or humiliating images.
In response to media reports about this issue and complaints across the country, Centers for Medicare and Medicaid Services issued memo 16-33-NH titled, “Protecting Resident Privacy and Prohibiting Mental Abuse Related to Photographs and Audio/Video Recordings by Nursing Home Staff,” and provided examples and guidance about this issue in the revised State Operations Model (SOM). This memo warrants the need for explicit language in state statute that holds individuals accountable in a way this manual alone cannot. SOM provides examples and guidance on the prohibition of taking pictures or audio/visual recordings of residents and sharing them.
The definition of abuse in the revised regulations includes abuse facilitated by the use of technology. It specifies that photographs or recordings of a resident and/or his or her private space without the resident’s, or designated representative’s written consent, is a violation of the resident’s right to privacy and confidentiality. Examples include, but are not limited to, staff taking unauthorized photographs of a resident’s room or furnishings (which may or may not include the resident), or a resident eating in the dining room, or a resident participating in an activity in the common area. Taking unauthorized photographs or recordings of residents in any state of dress or undress using any type of equipment (for example, cameras, smart phones, and other electronic devices) and/or keeping or distributing them through multimedia messages or on social media networks is a violation of a resident’s right to privacy and confidentiality.
Argument in Support: The California Long-Term Care Ombudsman Association writes,
“AB 2324 seeks to amend Section 368 of the Penal Code relating to elder or dependent adult abuse to include the recent and despicable occurrence of dehumanizing images, taken without the resident’s consent, often naked, of older adults residing in long-term care facilities. These images are then being shared and posted to personal social media accounts of staff and other individuals. The same individuals hired to provide these vulnerable residents with care are exploiting them through public shaming.”
Argument in Opposition: None.
REGISTERED SUPPORT / OPPOSITION:
Support
California Long-Term Care Ombudsman Association – Sponsor
AARP
California Advocates for Nursing Home Reform (CANHR)
California Commission on Aging
California Retired Teachers Association (CalRTA)
Council on Aging, Southern California Long-Term Care Ombudsman Program
El Dorado County Long-Term Care Ombudsman Program
Humboldt Del-Norte Counties Long Term Care Ombudsman
Imperial County Long Term Care Ombudsman Program
Long Term Care Ombudsman Services of San Luis Obispo County
Long Term Care Services of Ventura County, Inc.
Ombudsman Services of San Mateo County, Inc.
Stanislaus Long-Term Care Ombudsman Program
WISE & Healthy Aging Long-Term Care Ombudsman Program
Opposition
None on file.
Analysis Prepared by: Barry Brewer / AGING & L.T.C. / (916) 319-3990
Discussed in Hearing
11MIN
Assembly Standing Committee on Aging and Long-Term Care
Bill Author
Bill Co-Author(s):