BILL ANALYSIS SENATE HUMAN SERVICES COMMITTEE Senator Carol Liu, Chair BILL NO: AB 2322 A AUTHOR: Feuer B VERSION: May 13, 2010 HEARING DATE: June 22, 2010 2 FISCAL: Appropriations, Urgency 2/3rds required 3 2 CONSULTANT: 2 Hailey SUBJECT Abuse of children, elder, or dependent persons: confidentiality SUMMARY Broadens the scope of information that can be included in county multidisciplinary personnel team databases and authorizes case managers from the California Work Opportunities and Responsibility to Kids (CalWORKs) program to participate on child abuse multidisciplinary personnel teams. ABSTRACT Current law 1) Defines "child abuse" as a situation in which a child suffers from: serious physical injury inflicted by other than accidental means, harm caused by intentional neglect or malnutrition or sexual abuse, Continued--- STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 2 the absence of basic physical care, willful mental injury or negligent treatment or maltreatment, or any condition which results in the violation of rights or welfare or jeopardizes present or future health, normal development, or capacity for independence. [WIC 18951(e)] 2) Defines a child abuse multidisciplinary personnel team (MDT) as any team of three or more people trained in the prevention, identification, and treatment of child abuse and neglect cases and who are qualified to provide a broad range of child abuse-related services such as mental health professionals, law enforcement personnel, social workers, and teachers. [Welfare and Institutions Code (WIC) Section 18951(d)] 3) Permits members of an MDT, as defined in Section 18951, to exchange confidential information and writings during team meetings, provided the information is relevant to the prevention, identification or treatment of child abuse and is kept confidential. (WIC Section 830) 4) Permits members of an MDT to exchange confidential information that includes information about voluntary and involuntary mental health services if the information and records are relevant to the prevention, identification, management, or treatment of an abused child and that child's parents. (WIC 5328) 5) Allows psychotherapists to release information to law enforcement agencies if a patient presents a serious danger of violence to a reasonably foreseeable victim or victims. (WIC 5328) 6) Authorizes each county to establish a computerized data base to allow provider agencies to share identifying information related to families at risk for child abuse or neglect for the purpose of forming of MDTs for the prevention, identification, management or treatment of child abuse. (WIC Section 18961.5) 7) Specifies the identifying information in the data base as: the name, address, telephone number, and date and STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 3 place of birth of family members, the number assigned to the case by each provider agency, the name and telephone number of each employee assigned to the case from each provider agency, and the date or dates of contact between each provider agency and a family member. 8) Requires that the information in the system be entered by and disclosed to designated employees, and the heads of provider agencies shall establish a system by which unauthorized personnel cannot access the data contained in the system. 9) Defines "provider agencies" for the purposes of the computerized data base as any governmental or other agency which has as one of its purposes the prevention, identification, management or treatment of child abuse or neglect -- agencies including but not limited those providing social services, children's services, health services, mental health services, probation, law enforcement, or education. 10) Requires each county to develop its own standards for defining "at risk" establishing a computerized database system for sharing information among MDT members. 11) Establishes the CalWORKs program to provide welfare to work services and benefit payments to qualifying households with children. This bill 1) Establishes consistency in statutory references to members of child abuse multidisciplinary personnel teams (MDTs), to the teams themselves, and to the information shared among team members: members are engaged in and information is relevant to the prevention, identification, management or treatment of child abuse or neglect. 2) Adds that the sharing of information among MDT members can be for the provision of child welfare services, which is defined as "those services directed at preventing child abuse or neglect." 3) Allows psychotherapists to release information to STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 4 county child welfare agencies if a patient presents a serious danger of violence to a reasonably foreseeable victim or victims. 4) Adds CalWORKs case managers responsible for case planning and coordination for children and families in need of both child welfare services and CalWORKs programs, to the personnel authorized to participate on an MDT. 5) Requires the CalWORKs case manager to get the informed written consent of the family receiving cross program case planning and coordination in order to share confidential information regarding the child and family as a member of an MDT. 6) Allows counties to enter, into the data base, information about persons living in the child's home who are not a family member. 7) Allows counties to enter into the data base convictions of family members and persons living in the child's home for crimes that involved a child as a victim. 8) Stipulates that information related to convictions shall be accessible only to those entities currently entitled to obtain criminal history records; requires counties to install system controls to ensure that this limited access is maintained. 9) Allows conviction information to be discussed among MDT members. 10) Requires each county that establishes a computerized database system to develop its own standards for determining whether a child or family is in need of child welfare services and requires each provider agency to develop protocols for applying the county's standards consistently. 11) Requires each county that establishes a computerized database system to install system controls to monitor system use and to detect any violations of the system controls. 12) Adds an urgency clause. STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 5 FISCAL IMPACT According to the Assembly Appropriations Committee, costs would be minor and absorbable. BACKGROUND AND DISCUSSION This bill adds to the information contained in computerized databases that each county can establish to assist multidisciplinary personnel teams (MDTs) in their provision of child welfare services and child abuse prevention, investigation, and treatment. The bill adds information regarding unrelated persons who may live in the household of a child receiving child welfare services or who is at risk of abuse or neglect; and, by adding information to the database about convictions for crimes against a child. In addition, the bill adds CalWORKs case managers, with a family's permission, to these child welfare and child abuse MDTs. Third, the bill adds consistency to the various code sections dealing with MDTs and with the computerized databases. Child abuse multidisciplinary personnel teams For about 20 years, California law has authorized multidisciplinary teams (MDTs) to allow a coordinated interagency response to child abuse cases. MDTs, formed and operated at the county level, can share confidential information among team members for the purposes of preventing, identifying, or treating child abuse. Currently, all 58 California counties operate child abuse MDTs. Adding CalWORKs case managers to MDTs In approximately 30 California counties, case managers in the CalWORKs program join colleagues providing child welfare services for the purpose of case planning and coordination. These coordinated efforts are called the "linkages project." This bill will allow CalWORKs case managers to be part of MDTs working on the prevention, STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 6 investigation, management, or treatment of child abuse. These CalWORKs case managers participate on a child welfare MDT with the informed written consent of the family involved. Computerized databases Under existing law, counties may establish computerized databases so that provider agencies can share identifying information regarding families receiving child welfare services and children at risk of abuse or neglect. A county's database is available to members of these multidisciplinary personnel teams that are charged with preventing, identifying, managing, and treating child abuse. At this time, Los Angeles County is the only California county operating a computerized database for its MDTs. Called the family child index, it is a "pointer" system, telling authorized users if another participating agency has had contacts with a family. For example, a social worker investigating an abuse case after providing emergency response should be able to discover if the district attorney's office, the sheriff's department, or another county agency such as social services and health services, has had contact with the child or a member of the child's family. The database includes the name and phone number of a person in each of those departments whom the social worker can contact for more information. Those contact persons constitute the team that can share information. According to the author, Los Angles County now requires its child welfare workers to consult the family child index. Confidentiality Existing state and federal laws prohibit most county health and human services programs and educational entities from sharing confidential patient, recipient, and student information without the express consent of the individual, or in the case of minors, the parent or guardian. These laws safeguard individuals' right to privacy. Statutes sometimes allow confidential information to be shared among government agencies although written permission is often STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 7 required, and civil and criminal penalties may apply if the information is unlawfully disclosed. Federal law provides exceptions to confidentiality protections for child abuse or neglect reports and records under the Child Abuse Prevention and Treatment Act (42 U.S.C. 5101 et seq.), which requires federal, state, or local government agencies to share confidential information in order to fulfill their legal responsibilities to protect children from abuse and neglect. Related legislation and a potential conflict AB 2229 (Brownley), to be heard by the Senate Human Services Committee and sponsored by the Los Angeles County District Attorney, also makes changes in the composition of MDTs and the information available to them. Arguments in support The County Welfare Directors Association supports the bill in general and specifically argues for allowing CalWORKs case managers to participate on MDTs: such participation will improve cross-program planning and coordination. The County of Los Angeles supports the clarification of circumstances under which information can be shared among multidisciplinary team members. It also argues that timely access to information about unrelated persons living in a child's home and conviction information about those persons and family members will assist social workers prior to making home visits. Arguments in opposition Because the bill adds information about convictions to the database, the American Civil Liberties Union recommends four changes: Require notice to individuals in the database that information is being held about him or her and the opportunity for correction of inaccuracies in the information. Require destruction of data after specified time periods - when it is no longer useful to maintain personal and conviction information in the database. Establish legal remedies including injunctive relief for individuals if their information is wrongfully accessed or deliberately misused. STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 8 Define "at risk for child abuse or neglect" and delete the reference to "in need of child welfare services" in order to provide a more narrow definition of who can be included in a county database. COMMENTS AND QUESTIONS Technical amendment On page 15, line 12 and on page 17, line 3, change "joining" to "establishing." This will avoid any implication that county database systems are multi-county or regional. ACLU objections As noted above in the "arguments in opposition," the inclusion of conviction information in the county database raises objections from the American Civil Liberties Union. The ACLU's first recommended amendment is to provide notice to persons when conviction information is entered into a county's child abuse computerized database. Los Angeles County, currently the only county with an established database per WIC Section 18961.5, replies that individuals already know they are in the county district attorney's files and can challenge the accuracy of that information. Supporters argue that multiple notices may confuse individuals, and the county believes that requiring a notice in the case of the 18961.5 database would add to their workload. The ACLU believes that fairness demands that an individual has the opportunity to correct the record that may be shared across a wide range of county departments and schools, particularly if there is no expiration for data added to the child abuse database. Although the Senate Public Safety Committee is not hearing this bill, their general approach is to require notice when conviction information is not based on a fingerprint clearance. Per this bill, data on convictions is based on name, address, phone number, and date of birth, rather than fingerprint identification. A second and related concern of the ACLU is the fact that STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 9 the statute sets no expiration on the length of time a county can maintain data about an individual in this child welfare database. The ACLU believes that a date should be set, when a child reaches adulthood or some period of time after that date, such as five or ten years. Los Angeles County, which is the only county that has established a database of children at risk of abuse, per WIC 18961.5, established its database in the early 1990s and has to date purged no information. The county argues that intergenerational child abuse warrants maintaining information about a person long after they become adults: a report of possible abuse or neglect by an adult who, per the database, was the object of a substantiated or an inconclusive report of abuse as a child will raise red flags. The ACLU responds that it is the combination of no expiration on conviction information and no notice of these data's initial inclusion in the child welfare database that raises their objection. Although the bill is not being heard by the Senate Public Safety Committee, their frequent practice is to expunge convictions from entry into some databases when the conviction is more than ten years old. The third concern of the ACLU is their belief that individuals should have injunctive relief for wrongfully accessed or deliberately misused information. The current statutes and the language in AB 2322 emphasize the confidentiality of the information and require counties to build in safeguards to counter misuse. In responding to the ACLU's recommended amendment, Los Angeles County, currently the only county to maintain a child welfare database per WIC Section 18961.5, believes that injunctive relief is unnecessary because the data for each individual case is used by a limited number of people and its use is internal: that is, these data are not used for employment decisions or not made public as are other databases that include conviction information. The ACLU responds that conviction information that's not subject to notice and that is never purged could, at some time, be misused or compromised and that harm could come to an individual, particularly if part of the misuse was making the information public. The combination of these several aspects of the bill argues for injunctive relief. Fourth, the ACLU is concerned that the bill's criteria for who can be included in the database are too broad, with STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 10 each of 58 counties given more latitude than necessary when defining who is "at risk" and when determining who needs services "to prevent child abuse or neglect," the bill's definition of "child welfare services." While Los Angeles County may adopt a reasonable definition of "at risk" and utilize a reasonable protocol for defining what triggers adding a child to the database in question, other counties may not. Staff recommendations The fourth concern of the ACLU may be the easiest to address to give direction to other counties that may establish a child welfare database without changing the current practice of Los Angeles County. According to the county, opening a case follows a face-to-face response by child welfare staff to a report of suspected abuse or neglect - what statute defines as "emergency response." Therefore, staff recommends that the bill be amended to limit the database, as defined in WIC Section 18961.5, to children and families for whom the county has made an emergency response and found either substantiated or inconclusive evidence of abuse or neglect. This is the current practice in Los Angeles County, so it should not change their current approach while providing direction to other counties that may adopt a "pointer" database. The remaining issues deal with conviction information. Staff recommends that notice be provided to individuals when conviction information is entered into the child welfare database. This recommendation is congruent with the approach used by the Senate Public Safety Committee in similar instances. Databases, such as the state's Child Abuse Central Index (CACI), have a history of inaccuracy. Legislative action over the past few years has given attention to those inaccuracies, and by most accounts, data entry into CACI has improved and hearings wherein individuals can challenge the accuracy of results has led to additional corrections. Society's revulsion at crimes against children is such that providing an opportunity to correct the record before erroneous information is made public, even accidently, warrants the extra step of notice when conviction information is added to a county's database that will be used by MDTs. Staff also recommends that conviction information be purged STAFF ANALYSIS OF ASSEMBLY BILL 2322 (Feuer) Page 11 from the computerized database ten years after a child reaches majority . This recommendation has a connection to the general practice of the Senate Public Safety Committee to limit information in databases to ten years since the conviction. The database would continue to include contact information with the district attorney's office, but conviction information would no longer be available on-line to members of a multidisciplinary personnel team. Staff has no recommendation on providing injunctive relief . The committee may want to delve into this issue in more depth during the hearing. POSITIONS Support: County Welfare Directors Association (co-sponsor) Los Angeles County Board of Supervisors (co-sponsor) Service Employees International Union (co-sponsor) Los Angeles County Sheriff's Department State Public Affairs Committee of the Junior Leagues of California Oppose: American Civil Liberties Union (unless amended) -- END --