BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 6 2 AB 1623 (Atkins) 3 As Amended April 21, 2014 Hearing date: June 10, 2014 Penal Code AL/JRD:sl FAMILY JUSTICE CENTERS: CO-LOCATED, MULTI-DISCIPLINARY VICTIM SERVICES HISTORY Source: National Family Justice Center Alliance Prior Legislation: SB 557 (Kehoe) - Ch. 262, Stats. 2011 SB 733 (Leno) - 2010, vetoed AB 1669 (Leno) - 2007, vetoed AB 50 (Leno) - Ch. 884, Stats. 2006 Support: American Federation of State, County, and Municipal Employees, AFL-CIO; Alameda County Family Justice Center; Alameda County, Office of the District Attorney; American Academy of Pediatrics; California Association for Health Services at Home; California Coalition Against Sexual Assault; California Catholic Conference, Inc.; California District Attorneys Association; California Law Enforcement Association of Records Supervisors; California Correctional Peace Officers Association; California Probation, Parole, and Correctional Association; California State Association of Counties; California Teachers Association; Chief Probation Officers of California; Dress for Success; Family Justice Center Sonoma County; L.A. County Probation Officers Union; National Association of Social Workers - California Chapter; One SAFE Place, (More) AB 1623 (Atkins) PageB Shasta; Riverside Sheriffs' Association; Sacramento County, Office of the District Attorney; San Diego County District Attorney; San Diego Family Justice Center VOICES Committee; San Diego Police Department; Stanislaus Family Justice Center; County of San Diego Opposition:None known Assembly Floor Vote: Ayes 78 - Noes 0 KEY ISSUES SHOULD LOCAL GOVERNMENTS AND NONPROFIT ORGANIZATIONS BE AUTHORIZED TO ESTABLISH FAMILY JUSTICE CENTERS? SHOULD FAMILY JUSTICE CENTERS BE REQUIRED TO COMPLY WITH SPECIFIED PROVISIONS REGARDING ELIGIBILITY FOR SERVICES, PERSONNEL TRAINING, CLIENT PRIVACY, AND OPERATIONS? PURPOSE The purpose of this bill is to 1) explicitly authorize a city, county, city and county, or nonprofit organization to each establish a family justice center (FJC) and 2) to set requirements regarding the eligibility for services, personnel training, client privacy, and operations of FJCs. Existing law authorizes each county to create a county task force on violent crimes against women. The purpose of a county task force may include coordinating services and responses among governmental agencies and nonprofit organizations serving women who are victims of violent crimes. (Penal Code §§ 14140(a) and 14141(d).) Existing law authorizes each county to establish interagency domestic violence death review teams to assist in reviewing domestic violence deaths and facilitating interagency communication. (Penal Code § 11163.3.) (More) AB 1623 (Atkins) PageC Existing law provides that information developed by or shared among members of domestic violence death review teams shall remain confidential, as specified. (Penal Code §11163.3(e)-(g).) Existing law authorizes the Department of Justice (DOJ) to work with specified agencies and organizations to develop a protocol for the integration and coordination of state and local efforts to address fatal domestic violence through the creation of a statewide, collaborative domestic violence death review team. (Penal Code § 11163.5.) Existing law authorizes the DOJ, with the cooperation of specified organizations and agencies, to coordinate and integrate state and local efforts to address fatal child abuse and neglect, and to create a body of information to prevent child abuse. (Penal Code § 11174.34.) Existing law requires child protective services agencies, law enforcement, prosecution, child abuse and domestic violence experts, and community-based organizations serving abused children and victims of domestic violence to develop, in collaboration, protocols to facilitate coordinated responses to cases of domestic violence in homes in which a child resides. (Penal Code § 13732.) Existing law provides that a victim has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the victim and a sexual assault counselor, a domestic violence counselor, or a human trafficking caseworker. (Evidence Code § 1035.) Definition This bill defines "family justice centers" (FJC) as multiagency, multidisciplinary service centers where public and private agencies assign staff members to provide services to victims of domestic violence, sexual assault, elder or dependent adult abuse, or human trafficking from one location in order to reduce the number of times victims must tell their story, reduce the number of places victims must go to for help, and increase access to services and support for victims and their children. (More) AB 1623 (Atkins) PageD Staff at a FJC may be comprised of, but are not limited to, the following: Law enforcement personnel; Medical personnel; District attorneys and city attorneys; Victim-witness program personnel; Domestic violence shelter staff; Community-based rape crisis, domestic violence, and human trafficking advocates; Social service agency staff members; Child welfare agency social workers; County health department staff; City or county welfare and public assistance workers; Nonprofit agency counseling professionals; Civil legal service providers; Supervised volunteers from partner agencies; and, Other professionals providing services. Eligibility for Services This bill prevents a FJC from denying victims services on the grounds of criminal history and prohibits conducting criminal history searches on a victim at a FJC without the victim's written consent, unless the criminal history search is pursuant to an active criminal investigation. This bill prohibits a FJC from requiring a crime victim to participate in the criminal justice system or cooperate with law enforcement in order to receive counseling, medical care, or other services at a FJC. Operations and Evaluation of Family Justice Centers This bill requires each FJC to consult with specified relevant agencies in partnership with survivors of violence and abuse and their advocates in the operations process of the FJC and to establish procedures for the ongoing input, feedback, and evaluation of the center by survivors of violence and abuse and community-based crime victim service providers and advocates. This bill requires each FJC to develop policies and procedures, (More) AB 1623 (Atkins) PageE in collaboration with local community-based crime victim service providers and local survivors of violence and abuse, to ensure coordinated services are provided to victims and to enhance the safety of victims and professionals at the center who participate in affiliated survivor-centered support or advocacy groups. This bill requires each FJC to maintain a formal client feedback, complaint, and input process to address client concerns about services provided or the conduct of any FJC professional, agency partners, or volunteers providing services in the center. Client Privacy Protections This bill provides that nothing in the provisions of this bill is intended to abrogate existing laws regarding privacy or information sharing and requires FJC staff to comply with the laws governing their respective professions. This bill requires each FJC to maintain a client consent policy and to be in compliance with all state and federal laws protecting the confidentiality of the types of information and documents that may be in a victim's file, including, but not limited to, medical, legal, and victim counselor records. This bill requires each FJC to have a designated privacy officer to develop and oversee privacy policies and procedures consistent with state and federal privacy laws and the Fair Information Practice Principles. This bill provides that at no time shall a victim be required to sign a client consent form to share information in order to access services. This bill requires each FJC to obtain informed, written, reasonably time-limited consent from the victim before sharing information obtained from the victim with any staff member or agency partner, except in either of the following cases: 1. A FJC is not required to obtain victim consent before sharing information obtained from the victim with any staff member or agency partner if the person, with the sensitive information, is a mandated reporter, a peace officer, or a (More) AB 1623 (Atkins) PageF member of the prosecution team and is required to report or disclose specific information or incidents. These persons are required to inform the victim that they may share information obtained from the victim without the victim's consent. 2. Each FJC is required to inform the victim that information disclosed to staff or partner agencies at the FJC may be shared with law enforcement without the victim's consent if there is a mandatory duty to report, or the client is a danger to himself or herself, or others. Each FJC is required to obtain written acknowledgement that the victim has been informed of this policy. This bill provides that a victim's authorization for sharing information within a FJC shall not be construed as a universal waiver of any existing evidentiary privilege that makes confidential any communications or documents between the victim and any service provider. This bill prohibits the disclosure, to any third party, of any oral or written communication or any document authorized by the victim to be shared for the purposes of enhancing safety and providing more effective and efficient services to the victim, unless that third-party disclosure is authorized by the victim, or required by other state or federal law or by court order. This bill provides that an individual staff member, volunteer, or agency that has victim information governed by the provisions of this bill shall not be required to disclose that information unless the victim has consented to the disclosure or it is otherwise required by other state or federal law or by court order. This bill provides that disclosure of information consented to by the victim in a FJC, made for the purposes of clinical assessment, risk assessment, safety planning, or service delivery, is not a waiver of any specified privilege or confidentiality provision, the lawyer-client privilege, the physician-patient privilege, the psychotherapist-patient privilege, the sexual assault counselor-victim privilege, or the domestic violence counselor-victim privilege. (More) AB 1623 (Atkins) PageG Training Requirements This bill requires each FJC to maintain a formal training program with mandatory training for all staff members, volunteers, and agency professionals of at least eight hours per year on subjects including, but not limited to, privileges and confidentiality, information sharing, risk assessment, safety planning, victim advocacy, and high-risk case response. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when (More) AB 1623 (Atkins) PageH public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014, and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013, Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016. If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. (More) AB 1623 (Atkins) PageI In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1.Need for This Bill According to the author: Family Justice Centers are a best practice model for delivering supportive services to victims of various crimes, but mostly focused on victims of sexual and domestic abuse. This model works by bringing together specialized resources in one location to provide better and more convenient services to victims and their children. The key difference between Family Justice Centers and other multi-disciplinary models is (More) AB 1623 (Atkins) PageJ the presence of police officers and prosecutors. The full-time presence of these criminal justice system professionals in Family Justice Centers creates special issues, necessitates special policies and procedures and requires separate definitions in state law to protect victim confidentiality and promote responsible information sharing among community-based and government-based agencies. Each service provider at Family Justice Centers is bound by the standards of their respective profession; however there is currently no over-arching structure in law defining the boundaries between these partnerships. This is unacceptable because there are currently 17 Family Justice Center's operating in California with six additional sites under development. Last year, California Family Justice Centers helped 14,000 clients. This bill will ensure that helping victims is the first priority at Family Justice Centers. Specifically, AB 1623 will protect victims by explicitly stating that they need not participate in the criminal justice system in order to obtain services and that informed client consent is required before information can be shared among partner agencies In 2011, the legislature adopted legislation (SB 557) to study four Family Justice Centers in California, with the goal of the identifying challenges to the effectiveness of these centers. One of the recommendations of that study was that all family justice centers should implement policies to ensure that survivors of abuse do not have to involve the criminal justice system in order to access services and that no information be shared with law enforcement without the victim's agreement. (More) AB 1623 (Atkins) PageK 2.Background: Family Justice Centers as Multiagency, Multi-disciplinary Service Models The FJC model was originally developed in San Diego, which opened a center in 2002. The idea behind the FJC model is to create a coordinated, single-point-of-access center offering comprehensive services for victims of domestic violence, thereby reducing the number of locations a victim must visit in order to receive critical services. The United States Department of Justice, through its Office on Violence Against Women (OVW), has identified the FJC model as a best practice in the field of domestic violence. According to the OVW, FJC outcomes include: a reduction in the rate of homicide; increased victim safety; improved offender prosecution; reduced fear and anxiety for victims and their children; increased efficiency among service providers through the provision of collaborative services; and increased community support for the provision of services to victims and their children. (Casey Gwinn and Gael Strack, Hope for Hurting Families: Creating Family Justice Centers Across America (Volcano Press 2006).) According to the author, there are currently seventeen FJCs in California and another six under development. In 2011, the Legislature enacted a pilot project to establish FJCs in San Diego, Anaheim, and Alameda and Sonoma counties. (SB 557 (Kehoe), Chap. 262, Stats. 2011.) The two-year pilot project was in place through January 1, 2014 and required an evaluation of the four centers to be reported to the Legislature. The evaluation was to include, among other things, subjective and objective measurements of the impacts of co-located multi-agency services on victims and their children, barriers to receiving needed services, and any recommended best practices and model protocols. The evaluation found that the pilots "successfully served a significant number of survivors and addressed multiple service needs, supporting the need for co-located multi-agency service models." (EMT Associates, Inc., Final Evaluation Results: Phase II California Family Justice Initiative: Statewide Evaluation (July 2013) (FJC Report).) The FJC Report revealed that domestic violence victims "benefited from a comprehensive (More) AB 1623 (Atkins) PageL service approach that considered the context of a safe and supportive environment, an all-in-one service approach that included the therapeutic and legal needs of survivors, and individualized services that emphasized emotional support and survivors getting the help that they needed. These benefits combined to form a 'whole system approach' that is greater than the sum of its parts. The importance of a supportive approach that integrates both legal and therapeutic needs of survivors in a multi-level approach that considers context, process, and individualized services has been identified in the research and was central in these findings." (Id. at 3.) The FJC Report also found that the biggest barrier to obtaining services from a FJC was the lack of awareness of the FJC itself. In addition, the evaluation found that victims had concerns and misinformation about immigration and child welfare issues before coming to the FJC, but reported concerns largely dissipated after visiting the FJC. Specifically, "survivors concerns included fear of deportation, fear of having children removed, and a lack of awareness of legal services to address immigration and citizenship" (Id. at 4.) (More) The FJC Report made a number of recommendations for FJC operations, mostly regarding improved data collection and reporting, to enable more robust evaluations of FJCs and to further improve service delivery at FJCs. 3.Confidentiality and Privacy Protections California law provides that confidential communications between victims and sexual assault counselors, domestic violence counselors, and human trafficking caseworkers are privileged communications that may be disclosed upon consent by the victim, or under circumstances where a court orders disclosure of information as relevant evidence for a related criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the counseling relationship and the counseling services. (Evidence Code 1035, et seq.) Under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), medical records and other personal health information are confidential, subject to specified exceptions and procedures. (Pub. Law 104-191; 45 CFR Pts. 160, 164.) In fact, covered entities may disclose protected health information to law enforcement officials for specified law enforcement purposes, such as court orders, to identify suspects or witnesses, to find missing persons, information about a crime victim, notice of death and related matters. FJCs, where law enforcement, domestic violence counselors and even medical personnel are co-located together, raise both privacy and confidentiality issues. Victims of domestic violence and other victims of crime serviced by FJCs will often provide personal health information or undergo counseling or medical examinations - which would fall under medical privacy and privilege laws. To address those concerns, the bill contains a number of provisions designed to both safeguard information and ensure that victims using the FJC understand how their information may be shared between FJC member staff and other FJC professionals. Each FJC must maintain a client consent policy that is in compliance with all state and federal laws protecting the (More) AB 1623 (Atkins) PageN victim's confidentiality, including, but not limited to, confidentiality of medical, legal, and victim counselor records. A victim must not be required to sign a client consent form to share information in order to access services from the FJC. Under the bill, each FJC must have a designated privacy officer to develop and oversee privacy policies and procedures consistent with state and federal privacy laws and the Fair Information Practice Principles.<1> The bill also requires each FJC to obtain informed, written, reasonably time limited, consent from a victim before sharing information obtained from that victim with any FJC staff member or partner. A FJC is not, however, required to obtain consent from the victim before sharing information from the victim with a staff member or partner if the person is a mandated reporter, a peace officer, or a member of the prosecution team and is required to report or disclose specific information or incidents. Mandatory reporters are required to inform the victim that they may share information from the victim without his or her consent. Additionally, each FJC must inform the victim that information shared with staff members or partner agencies at a FJC may be shared with law enforcement professionals without the victim's consent where there is a mandatory duty to report, or the victim is a danger to themselves or others. Each FJC must obtain written acknowledgement that the victim has been informed of this policy. The bill prohibits the disclosure, to any third party, of any oral or written communication or any document authorized by the victim to be shared for the purposes of enhancing safety and providing more effective and efficient services to the victim, unless that third-party disclosure is authorized by the victim, or required by other state or federal law or by court order. Additionally, disclosure of information authorized by the victim in a FJC, made for the purposes of clinical assessment, risk assessment, safety planning, or service delivery, is not a waiver of specified privileges, including lawyer-client privilege, physician-patient privilege, or domestic violence counselor-victim privilege. --------------------------- <1> The Fair Information Practice Principles are privacy principles established by the U.S. Department of Homeland Security for protecting personal information. AB 1623 (Atkins) PageO Additionally, this bill prohibits searching a victim's criminal history without the written consent of the victim, unless the search is pursuant to an active criminal investigation. The bill clarifies that crime victims are not required to participate in the criminal justice system or cooperate with law enforcement in order to receive counseling, medical care, or other services from the FJC. Finally, each FJC is required to maintain a formal mandatory training program for all staff members, volunteers, and agency professionals on, among other things, privilege, confidentiality and information sharing. 4.Integrated Services for Crime Victims The objective of an FJC is to bring all victim services together under one roof to provide enhanced assistance to victims. According to those in support, in order for those various public and private groups to work together optimally, collaboration and coordination is key. This bill seeks to enhance that collaboration in two ways. First, each FJC must consult with community-based victims' organizations, as well as the victims themselves and their advocates, in the operations process of the FJCs. Second, the FJCs must establish procedures for ongoing input, feedback and evaluation of the FJCs by victims, advocates and service providers, along with a complaint process. These required lines of communication should help improve not only the collaboration among the various stakeholders, but also the services delivered to victims. ***************