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---



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                 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  




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               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  




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          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.




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                                  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,  




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          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  




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          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.




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                 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  




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          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  




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          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  




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          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)






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