AB 40 ensures law enforcement will know about crime in long-term care facilities
By Assemblymember Mariko Yamada –
The California State Senate Office of Oversight and Outcomes recently exposed “deep flaws in California’s system for detecting and responding to elder abuse and neglect” in long-term care facilities in their report California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties. The report’s findings are verified by hearings I conducted as Chair of the Assembly Aging and Long-term Care Committee last August and in a joint hearing with the Assembly Committee on Public Safety in February. During these hearings, district attorneys, law enforcement, and the Attorney General’s Bureau of Medi-Cal Fraud testified that the state has made a “de facto” choice to obscure the extent of criminal abuse and neglect in long-term care facilities by statutorily handcuffing dedicated, unpaid volunteers of the Office of the Long-term Care Ombudsman.
Strict confidentiality is now working both ways. The same confidentiality rule that is helping residents maintain quality of life is also preventing Ombudsmen from sharing information on abuse and neglect with those who have the legal authority and the criminal investigatory training to bring abusers to justice. This glaring hole in the reporting requirements renders criminal abuse victims voiceless.
To restore their voices, I have introduced Assembly Bill 40. AB 40 makes a simple yet significant change in elder abuse reporting law by requiring reports of abuse made to the Ombudsman to also be reported to local law enforcement – a “cc” for justice. Doing so would ensure that these reports, currently hidden behind the curtain of confidentiality, are placed into the hands of those with the power and authority to prosecute and punish abusers while preserving the Ombudsmen’s role as the first line of defense against abuse and neglect.
AB 40 passed the Assembly with strong support from senior advocates and law enforcement up and down the state. It is scheduled for two policy hearings in the State Senate. Now, having been defeated in the Assembly, special interests from the long-term care industry to the banking industry have deployed an army of lobbyists to spread misinformation in an attempt to derail the bill.
The efforts of proponents who understand the negative consequences of this barrier to justice are being overshadowed by these well-heeled lobbyists. We must fight back by looking to the State Senate’s own Office of Oversight and Outcomes report exposing the problems that AB 40 will correct.
In these austere economic times, AB 40 is an elegant and low-cost solution to an untenable situation. Unreported incidents of abuse and neglect will only increase as the crest of the silver tsunami reaches our long-term care system’s shore.
“California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties” is available here.
Assemblymember Mariko Yamada represents California’s 8th Assembly District, including portions of Yolo and Solano counties. She is the Chair of the Assembly Committee on Aging & Long-Term Care.
Thank You Mariko. This is greatly needed!
[i]”Assemblymember Mariko Yamada represents California’s 8th Assembly District, including portions of Yolo and Solano counties.”[/i]
Very good news, today. The redistricting commission is (probably) ridding us of Mariko Yamada ([url]http://blogs.sacbee.com/capitolalertlatest/2011/06/three-sacramento-area-assembly.html[/url]). Davis will be in a largely Sacramento district which already has two other Assembly incumbents, Roger Dickinson and Richard Pan. The Bee suggests Mariko should move to Solano County. I suspect there are a lot of union firefighters who would help her move.
Όπως οι Έλληνες ήθελα να πω, αντίο, Mariko!
Why would the banking industry be against AB 40?
[b]”Why would the banking industry be against AB 40?”[/b]
I think it is because AB40 makes all financial institutions ‘mandated reporters’ of ‘financial abuse’ and if they don’t report what might be abuse they can be prosecuted and made to pay stiff fines. This comes from the language in the bill:
[i]”15630.1. (a) As used in this section, “mandated reporter of suspected financial abuse of an elder or dependent adult” means all officers and employees of financial institutions.
(b) As used in this section, the term “financial institution” means any of the following:
(1) A depository institution, as defined in Section 3(c) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)).
(2) An institution-affiliated party, as defined in Section 3(u) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)).
(3) A federal credit union or state credit union, as defined in Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752), including, but not limited to, an institution-affiliated party of a credit union, as defined in Section 206(r) of the Federal Credit Union Act (12 U.S.C. Sec. 1786(r)).
(c) As used in this section, “financial abuse” has the same meaning as in Section 15610.30.
(d) (1) Any mandated reporter of suspected financial abuse of an elder or dependent adult who has direct contact with the elder or dependent adult or who reviews or approves the elder or dependent adult’s financial documents, records, or transactions, in connection with providing financial services with respect to an elder or dependent adult, and who, within the scope of his or her employment or professional practice, has observed or has knowledge of an incident, that is directly related to the transaction or matter that is within that scope of employment or professional practice, that reasonably appears to be financial abuse, or who reasonably suspects that abuse, based solely on the information before him or her at the time of reviewing or approving the document, record, or transaction in the case of mandated reporters who do not have direct contact with the elder or dependent adult, shall report the known or suspected instance of financial abuse by telephone immediately, or as soon as practicably possible, and by written report sent within two working days to the local adult protective services agency or the local law enforcement agency.
(2) When two or more mandated reporters jointly have knowledge or reasonably suspect that financial abuse of an elder or a dependent adult for which the report is mandated has occurred, and when there is an agreement among them, the telephone report may be made by a member of the reporting team who is selected by mutual agreement. A single report may be made and signed by the selected member of the reporting team. Any member of the team who has knowledge that the member designated to report has failed to do so shall thereafter make that report.
(3) If the mandated reporter knows that the elder or dependent adult resides in a long-term care facility, as defined in Section 15610.47, the report shall be made to the local ombudsman or and local law enforcement agency.[/i]
[i](e) An allegation by the elder or dependent adult, or any other person, that financial abuse has occurred is not sufficient to trigger the reporting requirement under this section if both of the following conditions are met:
(1) The mandated reporter of suspected financial abuse of an elder or dependent adult is aware of no other corroborating or independent evidence of the alleged financial abuse of an elder or dependent adult. The mandated reporter of suspected financial abuse of an elder or dependent adult is not required to investigate any accusations.
(2) In the exercise of his or her professional judgment, the mandated reporter of suspected financial abuse of an elder or dependent adult reasonably believes that financial abuse of an elder or dependent adult did not occur.
(f) [b]Failure to report financial abuse under this section shall be subject to a civil penalty not exceeding one thousand dollars ($1,000) or if the failure to report is willful, a civil penalty not exceeding five thousand dollars ($5,000), which shall be paid by the financial institution[/b] that is the employer of the mandated reporter to the party bringing the action. Subdivision (h) of Section 15630 shall not apply to violations of this section.
(g) (1) The civil penalty provided for in subdivision (f) shall be recovered only in a civil action brought against the financial institution by the Attorney General, district attorney, or county counsel. No action shall be brought under this section by any person other than the Attorney General, district attorney, or county counsel. Multiple actions for the civil penalty may not be brought for the same violation.
(2) Nothing in the Financial Elder Abuse Reporting Act of 2005 shall be construed to limit, expand, or otherwise modify any civil liability or remedy that may exist under this or any other law.
(h) As used in this section, “suspected financial abuse of an elder or dependent adult” occurs when a person who is required to report under subdivision (a) observes or has knowledge of behavior or unusual circumstances or transactions, or a pattern of behavior or unusual circumstances or transactions, that would lead an individual with like training or experience, based on the same facts, to form a reasonable belief that an elder or dependent adult is the victim of financial abuse as defined in Section 15610.30.
(i) Reports of suspected financial abuse of an elder or dependent adult made by an employee or officer of a financial institution pursuant to this section are covered under subdivision (b) of Section 47 of the Civil Code.
(j) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.[/i]
To Rich Rifkin: Thanks for the clarification. Makes perfect sense now…