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AB-3127 Reporting of crimes: mandated reporters.(2023-2024)

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Date Published: 05/22/2024 09:00 PM
AB3127:v97#DOCUMENT

Amended  IN  Senate  May 22, 2024
Amended  IN  Assembly  April 01, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 3127

Introduced by Assembly Member McKinnor

February 16, 2024

An act to amend Sections 11160, 11161, 11163.2, and 11163.3 of the Penal Code, relating to reporting of crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 3127, as amended, McKinnor. Reporting of crimes: mandated reporters.
Existing law requires a health practitioner, as defined, to make a report to law enforcement when they suspect a patient has suffered physical injury that is either self-inflicted, caused by a firearm, or caused by assaultive or abusive conduct, including elder abuse, sexual assault, or torture. A violation of these provisions is punishable as a misdemeanor.
This bill would remove the requirement that a health practitioner make a report to law enforcement when they suspect a patient has suffered physical injury caused by assaultive or abusive conduct. The bill would instead require that a health practitioner make a report when the injury is life threatening or results in death, as specified, or is the result of child abuse or elder or dependent adult abuse. The bill would require the health practitioner to additionally make a report when a person is seeking care for injuries related to domestic, sexual, or any nonaccidental violent injury if the patient requests a report be sent, as specified.
The bill would also require a health practitioner who suspects that a patient has suffered physical injury that is caused by domestic violence, as defined, to provide brief counseling and a referral to local and national domestic violence or sexual violence advocacy services, as specified.
This bill would make other conforming changes.
Because a violation of these requirements would be 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Recognizing that abuse survivors often need to access health care and medical treatment and advocacy services apart from police reporting and criminal legal involvement, this bill limits medical mandatory reporting requirements for adult injuries to only those injuries that are life-threatening without immediate medical treatment and requires health care practitioners to offer patients a connection with advocacy services.
(b) Health care practitioners play a critical role in prevention, identification, and response to violence. Studies show that survivors of abuse want health practitioners to provide survivor-centered, trauma-informed, and nonjudgmental care. Requirements to report all adult violent injuries can result in reduced survivor help seeking, increased danger in some situations, and a reluctance of health practitioners to address abuse. Yet, some patients may want their health practitioner to report abuse because it would be dangerous to do so themselves.
(c) Connecting patients who are surviving abuse to supportive advocacy services can improve their health and safety, decrease potential barriers to care, and promote trust between survivors and health care practitioners and the health care system. Particularly for seriously injured patients seeking care in acute care settings, offering a connection to an in-person advocate is strongly recommended.
(d) This act does not limit or override the ability of a health practitioner to make reports permitted by subdivisions subdivision (c) or (j) of Section 164.512 of Title 45 of the Code of Federal Regulations, or at the patient’s request. Health practitioners must still follow reporting requirements for child abuse, pursuant to Article 2.5 (commencing with Section 11164) of Chapter 2 of Title 1 of Part 4 of the Penal Code, and elder and vulnerable adult abuse, pursuant to Section 15600 of the Welfare and Institutions Code. It is the intent of the Legislature to promote partnership between health facilities and domestic and sexual violence advocacy organizations, legal aid, county forensic response teams, family justice centers, and other community-based organizations that address social determinants of health in order to better ensure the safety and wellness of their patients and provide training for health practitioners. California has made strides to enhance health practitioners’ capacity to address and prevent violence and trauma, including education for practitioners on how to assess for and document abuse as referenced in subdivision (h) of Section 2191 of the Business and Professions Code, Section 2196.5 of the Business and Professions Code, Section 13823.93 of the Penal Code, and Section 1259.5 of the Health and Safety Code.
(e) It is the intent of the Legislature that all health care staff participate in regular training on the health impacts and dynamics of domestic violence, how to assess for danger using validated tool, and how to offer culturally responsive education and support.

SEC. 2.

 Section 11160 of the Penal Code is amended to read:

11160.
 (a) A health practitioner, as defined in subdivision (a) of Section 11162.5, employed by a health facility, clinic, physician’s office, local or state public health department, local government agency, or a clinic or other type of facility operated by a local or state public health department who, in the health practitioner’s professional capacity or within the scope of the health practitioner’s employment, provides medical services for a physical condition to a patient whom the health practitioner knows or reasonably suspects is a person described as follows, shall immediately make a report in accordance with subdivision (b):
(1) A person suffering from a wound or other physical injury inflicted by the person’s own act or inflicted by another where the injury is by means of a firearm.
(2) A person suffering from a wound or other physical injury that is life threatening or results in death, caused by the use of nonaccidental violence inflicted by another.
(3) A person suffering from a wound or other physical injury resulting from child abuse, pursuant to Section 11165, or elder or dependant dependent adult abuse, pursuant to Section 15600 of the Welfare and Institutions Code.
(b) A health practitioner, as defined in subdivision (a) of Section 11162.5, employed by a health facility, clinic, physician’s office, local or state public health department, local government agency, or a clinic or other type of facility operated by a local or state public health department shall make a report regarding persons described in subdivision (a) to a local law enforcement agency as follows:
(1) A report by telephone shall be made immediately or as soon as practically possible.
(2) A written report shall be prepared on the standard form developed in compliance with paragraph (4), and adopted by the Office of Emergency Services, or on a form developed and adopted by another state agency that otherwise fulfills the requirements of the standard form. The completed form shall be sent to a local law enforcement agency within two working days of receiving the information regarding the person.
(3) A local law enforcement agency shall be notified and a written report shall be prepared and sent pursuant to paragraphs (1) and (2) even if the person who suffered the wound or other injuries described in subdivision (a) has expired, regardless of whether or not the wound or other injury was a factor contributing to the death, and even if the evidence of the conduct of the perpetrator of the wound or other injury was discovered during an autopsy.
(4) The report shall include, but shall not be limited to, the following:
(A) The name of the injured person, if known.
(B) The injured person’s whereabouts.
(C) The character and extent of the person’s injuries.
(D) The identity of any person the injured person alleges inflicted the wound or other injury upon the injured person.
(c) In the circumstance of an adult seeking care for injuries related to domestic, sexual, or any nonaccidental violent injury, if the patient requests a report be sent to law enforcement, health practitioners shall follow the reporting process in paragraph (3) of subdivision (b). Additionally, the medical documentation of injuries related to domestic, sexual, or any nonaccidental violent injury shall be conducted and made available to the patient for use as outlined in the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Public Law 104-191).
(d) For the purposes of this section, “injury” does not include any psychological or physical condition brought about solely through the voluntary administration of a narcotic or restricted dangerous drug.
(e) When two or more persons who are required to report are present and jointly have knowledge of a known or suspected instance of violence that is required to be reported pursuant to this section, and when there is an agreement among these persons to report as a team, the team may select by mutual agreement a member of the team to make a report by telephone and a single written report, as required by subdivision (b). The written report shall be signed by the selected member of the reporting team. Any member who has knowledge that the member designated to report has failed to do so shall thereafter make the report.
(f) The reporting duties under this section are individual, except as provided in subdivision (e).
(g) A supervisor or administrator shall not impede or inhibit the reporting duties required under this section and a person making a report pursuant to this section shall not be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established, except that these procedures shall not be inconsistent with this article. The internal procedures shall not require an employee required to make a report under this article to disclose the employee’s identity to the employer.
(h) (1) A health practitioner, as described in subdivision (a), who, in the health practitioner’s professional capacity or within the scope of the health practitioner’s employment, provides medical services to a patient whom the health practitioner knows or reasonably suspects is experiencing any form of domestic violence, as set forth in Section 124250 of the Health and Safety Code, or sexual violence, as set forth in Sections 243.4 and 261, shall, to the degree that it is medically possible for the individual patient, provide brief counseling, education, or other support, and offer a warm handoff or referral to local and national domestic violence or sexual violence advocacy services, as described in Sections 1035.2 and 1037.1 of the Evidence Code, before the end of the patient visit. The health practitioner has met the requirements of this subdivision when the brief counseling, education, or other support is provided and warm handoff or referral or other assistance is offered by a member of the health care team at the health facility.
(2) If the health practitioner is providing medical services to the patient in the emergency department of a general acute care hospital, the health practitioner shall also offer assistance to the patient in accessing a medical evidentiary exam, reporting to law enforcement, and a 24-hour domestic or sexual violence advocacy program as described in Sections 1035.2 and 1037.1 of the Evidence Code, if the patient wants to pursue these options.
(3) Nothing in this subdivision is intended to conflict with Sections 11161.2 and 680.2, which stipulate that victims receiving forensic medical exams have the right to a qualified social worker, victim advocate, or sexual assault counselor to be present during the examination.
(i) A health practitioner, with the assistance of a social worker or advocate if available, may offer a warm handoff and referral to other available victim services, including, but not limited to, legal aid, community-based organizations, behavioral health, crime victim compensation, forensic evidentiary exams, trauma recovery centers, family justice centers, and law enforcement to patients who are suspected to have suffered any nonaccidental injury.
(j) Health practitioners who treat a patient for wounds, physical injuries, or other signs consistent with abuse that have not previously been documented in the health practitioner’s medical record for the patient shall document such wounds, physical injuries, or other signs consistent with abuse in the health practitioner’s medical record for the patient. If in the health practitioner’s professional judgment, such documentation would increase danger for the patient, the portions of the medical record containing documentation of the wounds, physical injuries, or other signs consistent with abuse may be marked confidential.
(k) This section does not limit or override the ability of a health practitioner to make reports to law enforcement at the patient’s request, or as permitted by HIPAA in Section 164.512(c) of Title 45 of the Code of Federal Regulations, which permits disclosures about victims of abuse, neglect, or domestic violence, if the individual agrees, or pursuant to Section 164.512(j) of Title 45 of the Code of Federal Regulations, which permits disclosures to prevent or limit a serious and imminent threat to a person or the public.
(l) For the purposes of this section, it is the Legislature’s intent to avoid duplication of information.
(m) For purposes of this section only, “employed by a local government agency” includes an employee of an entity under contract with a local government agency to provide medical services.
(n) For purposes of this section, the following terms have the following meanings:
(1) “Life threatening” means an injury likely to result in death without immediate medical or surgical intervention. Life-threatening injuries can include, but are not limited to, injuries from knife, gun, and strangulation that are likely to result in death without immediate medical or surgical intervention.
(2) “Referral” may include, but is not limited to, the health practitioner sharing information about how a patient can get in touch with a local or national survivor advocacy organization, information about how the survivor advocacy organization could be helpful for the patient, what the patient could expect when contacting the survivor advocacy organization, or the survivor advocacy organization’s contact information.
(3) “Warm handoff” may include, but is not limited to, the health practitioner establishing direct and live connection to an in-person survivor advocate, through a call with a survivor advocate, in-person onsite survivor advocate, in-person on-call survivor advocate, or some other form of teleadvocacy. When a telephone call is not possible, the warm handoff may be completed through an email. The patient may decline the warm handoff. Health practitioners are encouraged to offer connection to an in-person advocate where available.
(o) A health practitioner shall not be civilly or criminally liable for any report made or not made pursuant to this section or for any other acts taken or not taken, in relation thereto, or resulting therefrom, in good faith compliance with this section and other applicable state and federal laws.

SEC. 3.

 Section 11161 of the Penal Code is amended to read:

11161.
 Notwithstanding Section 11160, the following shall apply to every physician or surgeon who has under their charge or care any person described in subdivision (a) of Section 11160:
(a) The physician or surgeon shall make a report in accordance with subdivision (b) of Section 11160 to a local law enforcement agency.
(b) It is recommended that any medical records of a person about whom the physician or surgeon is required to report pursuant to subdivision (a) include the following:
(1) Any comments by the injured person regarding past domestic violence, as defined in Section 13700, or regarding the name of any person suspected of inflicting the wound or other physical injury upon the person.
(2) A map of the injured person’s body showing and identifying injuries and bruises at the time of the health care.
(3) A copy of the law enforcement reporting form.
(c) (1) The physician or surgeon shall offer a referral to local domestic violence services if the person is suffering or suspected of suffering from domestic violence, as defined in Section 13700.
(2) The physician or surgeon has met the requirements of this subdivision if the referral is offered by a member of the health care team at the health facility.

SEC. 4.

 Section 11163.2 of the Penal Code is amended to read:

11163.2.
 (a) In any court proceeding or administrative hearing, neither the physician-patient privilege nor the psychotherapist privilege applies to the information required to be reported pursuant to this article.
(b) The reports required by this article shall be kept confidential by the health facility, clinic, or physician’s office that submitted the report, and by local law enforcement agencies, and shall only be disclosed by local law enforcement agencies to those involved in the investigation of the report or the enforcement of a criminal law implicated by a report. In no case shall the person suspected or accused of inflicting the wound or other injury upon the injured person, or the attorney of the suspect accused, be allowed access to the injured person’s whereabouts. Nothing in this subdivision is intended to conflict with Section 1054.1 or 1054.2.
(c) For the purposes of this article, reports of suspected child abuse and information contained therein may be disclosed only to persons or agencies with whom investigations of child abuse are coordinated under the regulations promulgated under Section 11174.
(d) The Board of Prison Terms may subpoena reports that are not unfounded and reports that concern only the current incidents upon which parole revocation proceedings are pending against a parolee.

SEC. 5.

 Section 11163.3 of the Penal Code is amended to read:

11163.3.
 (a) A county may establish an interagency domestic violence death review team to assist local agencies in identifying and reviewing domestic violence deaths and near deaths, including homicides and suicides, and facilitating communication among the various agencies involved in domestic violence cases. Interagency domestic violence death review teams have been used successfully to ensure that incidents of domestic violence and abuse are recognized and that agency involvement is reviewed to develop recommendations for policies and protocols for community prevention and intervention initiatives to reduce and eradicate the incidence of domestic violence.
(b) (1) For purposes of this section, “abuse” has the meaning set forth in Section 6203 of the Family Code and “domestic violence” has the meaning set forth in Section 6211 of the Family Code.
(2) For purposes of this section, “near death” means the victim suffered a life-threatening injury, as determined by a licensed physician or licensed nurse, as a result of domestic violence.
(c) A county may develop a protocol that may be used as a guideline to assist coroners and other persons who perform autopsies on domestic violence victims in the identification of domestic violence, in the determination of whether domestic violence contributed to death or whether domestic violence had occurred prior to death, but was not the actual cause of death, and in the proper written reporting procedures for domestic violence, including the designation of the cause and mode of death.
(d) County domestic violence death review teams shall be comprised of, but not limited to, the following:
(1) Experts in the field of forensic pathology.
(2) Medical personnel with expertise in domestic violence abuse.
(3) Coroners and medical examiners.
(4) Criminologists.
(5) District attorneys and city attorneys.
(6) Representatives of domestic violence victim service organizations, as defined in subdivision (b) of Section 1037.1 of the Evidence Code.
(7) Law enforcement personnel.
(8) Representatives of local agencies that are involved with domestic violence abuse reporting.
(9) County health department staff who deal with domestic violence victims’ health issues.
(10) Representatives of local child abuse agencies.
(11) Local professional associations of persons described in paragraphs (1) to (10), inclusive.
(e) An oral or written communication or a document shared within or produced by a domestic violence death review team related to a domestic violence death review is confidential and not subject to disclosure or discoverable by a third party. An oral or written communication or a document provided by a third party to a domestic violence death review team, or between a third party and a domestic violence death review team, is confidential and not subject to disclosure or discoverable by a third party. This includes a statement provided by a survivor in a near-death case review. Notwithstanding the foregoing, recommendations of a domestic violence death review team upon the completion of a review may be disclosed at the discretion of a majority of the members of the domestic violence death review team.
(f) Each organization represented on a domestic violence death review team may share with other members of the team information in its possession concerning the victim who is the subject of the review or any person who was in contact with the victim and any other information deemed by the organization to be pertinent to the review. Any information shared by an organization with other members of a team is confidential. This provision shall permit the disclosure to members of the team of any information deemed confidential, privileged, or prohibited from disclosure by any other statute.
(g) Written and oral information may be disclosed to a domestic violence death review team established pursuant to this section. The team may make a request in writing for the information sought and any person with information of the kind described in paragraph (2) may rely on the request in determining whether information may be disclosed to the team.
(1) An individual or agency that has information governed by this subdivision shall not be required to disclose information. The intent of this subdivision is to allow the voluntary disclosure of information by the individual or agency that has the information.
(2) The following information may be disclosed pursuant to this subdivision:
(A) Notwithstanding Section 56.10 of the Civil Code, medical information.
(B) Notwithstanding Section 5328 of the Welfare and Institutions Code, mental health information.
(C) Notwithstanding Section 15633.5 of the Welfare and Institutions Code, information from elder abuse reports and investigations, except the identity of persons who have made reports, which shall not be disclosed.
(D) Notwithstanding Section 11167.5, information from child abuse reports and investigations, except the identity of persons who have made reports, which shall not be disclosed.
(E) State summary criminal history information, criminal offender record information, and local summary criminal history information, as defined in Sections 11075, 11105, and 13300.
(F) Notwithstanding Section 11163.2, information pertaining to reports by health practitioners of persons suffering from physical injuries inflicted by means of a firearm or abuse, if reported, and information relating to whether a physician referred the person to local domestic violence services as required by Section 11161.
(G) Notwithstanding Section 827 of the Welfare and Institutions Code, information in any juvenile court proceeding.
(H) Information maintained by the Family Court, including information relating to the Family Conciliation Court Law pursuant to Section 1818 of the Family Code, and Mediation of Custody and Visitation Issues pursuant to Section 3177 of the Family Code.
(I) Information provided to probation officers in the course of the performance of their duties, including, but not limited to, the duty to prepare reports pursuant to Section 1203.10, as well as the information on which these reports are based.
(J) Notwithstanding Section 10850 of the Welfare and Institutions Code, records of in-home supportive services, unless disclosure is prohibited by federal law.
(3) The disclosure of written and oral information authorized under this subdivision shall apply notwithstanding Sections 2263, 2918, 4982, and 6068 of the Business and Professions Code, or the lawyer-client privilege protected by Article 3 (commencing with Section 950) of Chapter 4 of Division 8 of the Evidence Code, the physician-patient privilege protected by Article 6 (commencing with Section 990) of Chapter 4 of Division 8 of the Evidence Code, the psychotherapist-patient privilege protected by Article 7 (commencing with Section 1010) of Chapter 4 of Division 8 of the Evidence Code, the sexual assault counselor-victim privilege protected by Article 8.5 (commencing with Section 1035) of Chapter 4 of Division 8 of the Evidence Code, the domestic violence counselor-victim privilege protected by Article 8.7 (commencing with Section 1037) of Chapter 4 of Division 8 of the Evidence Code, and the human trafficking caseworker-victim privilege protected by Article 8.8 (commencing with Section 1038) of Chapter 4 of Division 8 of the Evidence Code.
(4) In near-death cases, representatives of domestic violence victim service organizations, as defined in subdivision (b) of Section 1037.1 of the Evidence Code, shall obtain an individual’s informed consent in accordance with all applicable state and federal confidentiality laws, before disclosing confidential information about that individual to another team member as specified in this section. In death review cases, representatives of domestic violence victim service organizations shall only provide client-specific information in accordance with both state and federal confidentiality requirements.
(5) Near-death case reviews shall only occur after any prosecution has concluded.
(6) Near-death survivors shall not be compelled to participate in death review team investigations; their participation is voluntary. In cases of death, the victim’s family members may be invited to participate, however they shall not be compelled to do so; their participation is voluntary. Members of the death review teams shall be prepared to provide referrals for services to address the unmet needs of survivors and their families when appropriate.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B 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 XIII B of the California Constitution.