BILL ANALYSIS Ó SENATE HUMAN SERVICES COMMITTEE Senator Jim Beall, Chair BILL NO: AB 1978 A AUTHOR: Jones-Sawyer B VERSION: May 7, 2014 HEARING DATE: June 10, 2014 1 FISCAL: Yes 9 7 CONSULTANT: Sara Rogers 8 SUBJECT Child Welfare Services SUMMARY This bill prohibits a county child welfare agency from retaliating against a social worker if the social worker discloses that they believe a policy, procedure, or practice endangers the health or well-being of a child or children, as specified. The bill requires counties, in developing self-assessments and improvement plans of their child welfare services, to consult with stakeholders, as specified, and to consult with at least one county child welfare worker named by the bargaining unit representing children's social workers. Makes other related changes. ABSTRACT Existing law: 1)Requires the state, through the California Department of Social Services (CDSS) and county welfare departments, to Continued--- STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageB establish and support a public system of child welfare services to protect and promote the welfare of children. (WIC 16500) 2)Establishes the California Child and Family Service Review (C-CFSR) System to maximize compliance with federal Social Security Act Title IV-E Regulations and to improve child welfare outcomes for children and their families in the areas of child protection, foster care, adoption, family connections and independent living services. (WIC 10601.2) 3)Under federal law, establishes the Child Abuse Prevention and Treatment Act (CAPTA) which provides fully federal grant funding to applicant states to improve child protective service systems and for child abuse prevention activities. Requires the submission of a state plan, as specified, and requires services to be coordinated with Title IV-B services. Additionally requires states to report specified information regarding child fatalities (42 U.S.C. 5106 et seq) 4)Establishes the California State Child Death Review Council to oversee the statewide coordination and integration of state and local efforts to address fatal child abuse or neglect and to create a body of information to prevent child deaths. (PEN 11174.34 (b) (1)) 5)Provides for the establishment of county Child Death Review Teams to assist local agencies in identifying and reviewing suspicious child deaths and facilitating communication among persons who perform autopsies and the various persons and agencies involved in child abuse or neglect cases. (PEN 11174.32) 6)Requires each child death review team to make findings, conclusions, recommendations and specified data available to the public no less than once each year. (PEN 11174.32 (e) (1)) STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageC 7)Provides that all applications and records maintained or kept in regards to the administration or provision of social services, as specified, to be confidential and not be made open other than for the purposes of the administration or provision of the social service programs, unless otherwise specified. (WIC 10850) 8)Requires specified information from a child welfare case related to the suspected death of a child cause by abuse or neglect to be released within five days, and permits DSS and the CWA to comment on the case within the scope of the release, as specified. (WIC 10850(a) and (g)) This bill: 1)Makes legislative findings regarding the role that the delivery of child welfare service by state and local government plays in meeting the needs of vulnerable children. 2)Requires counties, in developing self-assessments and improvement plans of their child welfare services, to consult with stakeholders, including county child welfare agencies and probation agency staff at all levels, current and former foster children, children's attorneys, and foster care providers. 3)Requires counties, when doing self-assessments and improvement plans in child welfare, to consult with at least one county child welfare worker named by the bargaining unit representing children's social workers. 4)Requires that county child welfare improvement plans include a separately titled provision that lists and provides the rationale for proposed operational improvements identified during the stakeholder process that can be implemented at a cost savings to the county or within existing county resources. STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageD 5)Prohibits a county child welfare agency from retaliating against a social worker if the social worker has reasonable cause to believe that a policy, procedure, or practice related to the provision of child welfare services endangers the health or well-being of a child or children and the social worker discloses this information to a government or law enforcement agency, an appointed or elected official, or the public. 6)Provides that nothing in this bill authorizes a social worker within a county child welfare agency to disclose the identity of a child or any portion of a case file. 7)Authorizes county child welfare social workers to comment on a child welfare case, within the scope of the information released, once documents have been released by the custodian of records, as specified. FISCAL IMPACT An Assembly Appropriations Analysis states there are potential state costs in the range of $50,000 to $100,000 (GF) for mandated activities on local agencies associated with the current and future development of county self-assessments and county improvement plans. BACKGROUND AND DISCUSSION Purpose of the bill This measure is a re-introduction of AB 921 (Jones-Sawyer) from 2013. As initially proposed, AB 921 established civil penalties for specified offenses committed against a social worker and a requirement for counties to adopt an ordinance that provides social workers specific additional authority and protections. However those provisions were removed prior to the bill reaching the Governor. AB 1978 reflects the final version of AB 921 as was adopted by the Legislature, but vetoed by the Governor. The Governor's veto message for AB 921 stated: STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageE Among its provisions, the bill would allow any social worker to comment on any child welfare services policy, procedure and practice, or any publicly released child fatality case, with impunity. While this bill has the best of intentions, it overreaches. The judgment of social workers should be valued, but we don't need a law to protect their opinions, and theirs alone. Social workers, like other public or private employees, already have "whistleblower" protections for illegal acts they report. Specific county policies and practices that are legal but problematic should be resolved at the county level, or through legislation as a last resort, when counties cannot do it on their own. Social workers, the state and counties all have a duty to protect children who are abused and neglected. We should all work together in good faith to that end. According to the sponsor of the bill, Service Employees International Union (SEIU), this bill is a response to a series of tragic child deaths as a result of abuse and neglect that occurred in two of California's largest counties; Los Angeles and Sacramento. In support of this bill, SEIU writes: "Over the years, SEIU members who are social workers have shared numerous stories of their attempts to make changes in the child protective services systems they work in to benefit children and families?but workers' recommendations often fall on deaf ears, and in some cases, suggestions and concerns have even been met with responses ranging from indifference to hostility. AB 1978 seeks to provide protections to workers who have firsthand experience and knowledge on how policies and procedures affect child safety. This bill will also allow social workers to comment on circumstances related to a child death. SB 39, enacted STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageF in 2009 allowed for the public to have access to specific information in a child's CPS file if there was a child death. SB 39 required the county to provide the information in a specified time and also allowed for county officials to comment on the case while maintaining strict confidentiality standards. AB 1978 seeks to provide the same ability to comment on cases with the same confidentiality protection as in current law for county social workers who have worked on the case resulting in a child death." Child Welfare System California has a complex child welfare system incorporating federal, state and local funds expended for the broad purpose of child welfare, including child abuse prevention and response. The federal Administration of Children and Families (ACF) administers numerous federal grants intended to assist states with child abuse prevention and response and to support the foster care system which provides board and care payments for eligible dependent children. Within the statutorily established parameters for each grant, states have substantial flexibility in how to apportion funds but are accountable to significant federal oversight of program administration. The California Department of Social Services (CDSS) supervises the 58 county-administered Child Welfare Services (CWS) system which investigates approximately 32,000 reports of severe injury, death and life threatening neglect of children annually. According to DSS, as of January 2014, there were nearly 61,000 children currently in foster care placement, with nearly one in three residing in Los Angeles County. Child and Family Services Review System (CFSR) Federal law pursuant to Title IV-B of the Social Security Act and state law pursuant to AB 636 (Steinberg, Chapter 678, Statutes of 2001) establish an outcomes-based review process administered known as the Child and Family Services STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageG Review System (CFSR). At the federal level, the Children's Bureau of the Administration for Children and Families under the U.S. Department of Health and Human Services Agency conducts the CFSR based on a statewide assessment prepared by CDSS, state child welfare data, case reviews and interviews and focus groups conducted on site. Additionally, the process includes an Annual Progress and Services Report to establish transparent performance measures, accountability and program improvement plans (PIPs) for states to improve child welfare systems. California's most recent CFSR in 2008 found that the state did not achieve substantial compliance with any of the safety, permanency or wellbeing outcomes identified including home permanency, safety from abuse and neglect, timeliness of adoptions, placement stability, educational needs and others and a PIP was established.<1> The report additionally found that California's low performance may be attributed at least in part to the lack of state-wideness for implementation of many of the state's innovative best practices, as well as high social worker caseloads and high turnover, insufficient numbers of foster homes and insufficient support and training for caregivers, and an over reliance on group homes and residential treatment facilities.<2> The PIP was deemed substantially completed by 2011 and last year ACF rescinded all penalties. A new CFSR is expected in 2016. California Outcomes and Accountability System (C-CFSR) In addition to the federal CFSR process, California has established a corollary process called the Outcomes and ------------------------- <1> C-CFSR 2008. http://www.childsworld.ca.gov/res/pdf/CFSRExecSummary2008.pd f <2> Final Report: California Child and Family Services Review. July 2008. http://www.childsworld.ca.gov/res/pdf/CFSRFinalReport2008.pd f STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageH Accountability System (C-CFSR) which requires counties to develop a county self-assessment and System Improvement Plan (SIP). The county self-assessment is completed every five years by the county in coordination with local community stakeholders to provide a comprehensive review of the child welfare and probation placement programs, from prevention through permanency and aftercare. The subsequent SIP establishes an "operational agreement" between CDSS and the county and is developed by lead county agencies in collaboration with local stakeholders, prevention and early intervention partners and is approved by the county Board of Supervisors. Following development of the CSA and SIP, the county develops an annual SIP Progress Report to reevaluate and determine whether the SIP strategies are successful and to provide an opportunity for amendment.<3> According to CDSS instructions the CFSR process includes the establishment of a team led by representatives from the County's Child Welfare Department, Probation Placement Agency and CDSS. The team may also include additional county agency staff and community partners who contribute to quarterly outcome reviews, CSA and SIP development, SIP Progress reports, as well as other required reports. According to the CFSR Instruction Manual, "In counties where staff are represented by labor unions, the county is encouraged to request participation of line supervisors and staff as selected by the union, in addition to other staff."<4> The Instruction Manual additionally states that "input from stakeholders is essential throughout the C-CFSR cycle. The C-CFSR process requires input from stakeholders within the county who participate in providing services to children and families involved in the child welfare system as well as from individuals who are receiving or have ------------------------- <3> California Child and Family Services Review Manual Instruction http://www.childsworld.ca.gov/res/pdf/CCFSRInstructionManual .pdf <4> Ibid. STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageI received services." Child Fatality Reviews SB 39 (Migden) Chapter 468, Statutes of 2007, required county welfare departments to notify CDSS following every child fatality that occurred within its jurisdiction determined to be the result of abuse and/or neglect. The determination that abuse or neglect resulted in the child's death can be made by a coroner, law enforcement agency, the Child Welfare services agency or probation department. SB 39 required CDSS to issue an annual report identifying child fatalities and any systemic issues or patterns revealed by the notices submitted by the counties and any other relevant information in the Department's possession. Additionally, the federal Child Abuse Prevention Treatment Act (CAPTA) requires states to have policies that allow for the public disclosure of child fatality information, but does not require that information be disclosed. (42 U.S.C. § 5106) When a county learns that a child fatality has occurred and has a reasonable suspicion that the fatality was a result of abuse or neglect, the county is required to open a child welfare investigation and make a determination whether the fatality was the result of abuse or neglect. If it has been determined that the child fatality was the result of substantiated abuse or neglect, the county is required to file a report with CDSS including the following information that is collected in aggregate for further statewide analysis: The age and gender of the child. The date of death. Residence of child at the time of death. Whether an investigation is being conducted by a law enforcement agency and/or the county child welfare agency. Which agency made a determination whether the child fatality was or was not the result of abuse and/or neglect. STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageJ The law additionally provides for the public disclosure of specified information related to a child fatality case. Child fatality cases can generate intense public interest and media attention, in this regard state and federal law seeks to balance the need for accountability and attention to be paid to tragic circumstances that may have been preventable, with the privacy needs of any surviving siblings that may be negatively affected by public comment and publicity. Additionally, criminal proceedings may be affected by the release of information publicly. Furthermore, SB 39 authorizes a county human services director to speak publicly about certain elements of a case if other parties in the case are also speaking publicly about the incident. The California Welfare Directors Association of California writes that: "The very sensitive nature of the cases of some children in our care necessitates that any public commentary regarding same, be handled with the utmost thoughtfulness and delicacy. There are certainly instances where a human services director authorized by SB 39 to publicly comment on a case decides not to do so to protect the privacy and well-being of innocent parties, such as a sibling. We believe if a county human services director opts to comment publicly about a child fatality, the child welfare social worker on the case should also have that option. However, AB 1978 would authorize a child welfare social worker to comment publicly about a child fatality case, even if the county human services director decides not to comment publicly to protect the privacy of other parties. Given the privacy and well-being risks to multiple parties that must be weighed against the interest of transparency, the decision of a county agency - or its employees - to initiate public comments about a child fatality is appropriately made by the agency director. STAFF ANALYSIS OF ASSEMBLY BILL 1978 (Jones-Sawyer) PageK Accordingly, we request that your bill be amended to permit the social worker assigned to the case in question to publicly comment only when the county welfare director has done so first." In response to these concerns, SEIU writes: "This bill does not propose to change anything in current law related to confidentiality protections and rights of children and families that we serve?.Government Code Section 6252(b) [provides that] if a social worker discloses any portion of what is in a case file...including by definition the identity of anyone in it - she or he loses the modest protection against being disciplined afforded by the law." PRIOR VOTES Assembly Floor 64 - 9 Assembly Appropriations 14 - 3 Assembly Human Services 5 - 0 POSITIONS Support: Service Employees International Union - California (sponsor) Oppose: None received. -- END --