BILL ANALYSIS Ó
AB 1001
Page 1
Date of Hearing: January 12, 2016
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Kansen Chu, Chair
AB 1001
(Maienschein) - As Amended January 4, 2016
SUBJECT: Child abuse: reporting: foster family agencies
SUMMARY: Requires specified action by the Department of Social
Services pertaining to the license, special permit, or
certificate of a community care facility when the department
finds that an administrator or licensee has violated specified
mandated reporting laws.
Specifically, this bill:
1)Requires the Department of Social Services (DSS) to deny an
application for, or suspend or revoke, any license, or any
special permit, certificate of approval, or administrator
certificate, or deny a transfer of a license for a community
care facility upon a finding that the applicant or licensee
has impeded or inhibited mandated reporting duties of an
individual that he or she supervises, has sanctioned that
person for making a report, or has required an employee to
disclose his or her identity to the employer in violation of
current law.
2)Prohibits DSS from reinstating a license, registration, or a
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special permit that is suspended or revoked as a result of a
finding that a licensee or administrator has impeded or
inhibited a mandated report.
3)Requires an orientation provided to a chief executive officer
or other authorized member of the board of directors and the
administrator of a foster family agency as a condition of DSS
licensure, to include, but not be limited to, a description of
the policies, procedures, or practices that violate the
prohibition in current law on impeding or inhibiting a
mandated report. Further requires any plan of operation of a
foster family agency to include a written plan establishing
policies, procedures, or practices to ensure the foster family
agency does not violate this prohibition.
4)Allows a foster family agency social worker to, as of January
1, 2018, access the process for voluntary disclosures to DSS
that is currently accessible to county social workers, if the
social worker has reasonable cause to believe that a policy,
procedure, or practice, violates the prohibition on impeding
or inhibiting a mandated report and specifies information from
such voluntary disclosures, consistent with current
requirements for voluntary reports from county social workers,
that the department must report to the Legislature and post on
its Internet Web site by July 1, 2019.
EXISTING LAW:
1)Establishes the California Community Care Facilities Act to
provide for the licensure and regulation of community care
facilities. (HSC 1500 et seq.)
2)Defines community care facility as any facility, place, or
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building that is maintained and operated to provide nonmedical
residential care, day treatment, adult day care, or foster
family agency services for children, adults, or children and
adults, including, but not limited to, individuals with
physical disabilities or mental impairments and abused or
neglected children. (HSC 1502)
3)Requires DSS to conduct unannounced visits of each licensed
community care facility, except for foster family homes, and
requires that no facility or center be visited less frequently
than once every five years. Further requires DSS to conduct
annual unannounced visits of licensed facilities under
specified circumstances, such as when a licensee is on
probation. Additionally requires annual visits of a random
sample of at least 20% of facilities and centers not subject
to annual inspections for specified circumstances. Increases
the minimum number of annual inspections in specified
community care facilities beginning January 1, 2017. (HSC
1534)
4)Defines a foster family agency as any public agency or private
organization engaged in the recruiting, certifying, and
training of, and providing professional support to, foster
parents, or in finding homes or other places for placement of
children for temporary or permanent care who require that
level of care. Further requires private foster family
agencies to be organized and operated on a nonprofit basis.
(HSC 1502(a)(4))
5)Authorizes DSS to deny an application for, or suspend or
revoke, any license, or any special permit, certificate of
approval, or administrator certificate, or deny the transfer
of a license issued to a community care facility on certain
grounds, including conduct which is inimical to the health,
morals, welfare, or safety of either the people of this state
or an individual in, or receiving services from, the facility
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or certified family home. (HSC 1550)
6)Establishes the Child Abuse and Neglect Reporting Act (CANRA),
for the general purpose of protecting children from abuse and
neglect. (PC 11164 et seq.)
7)Enumerates 44 categories of mandated reporters of child abuse,
including teachers, clergy members, peace officers, licensees,
administrators, or employees of a licensed community care
facility, social workers, therapists, and other individuals
whose professions may or may not include routine interactions
with children. (PC 11165.7)
8)Requires mandated reporters to report suspected child abuse or
neglect to any police department or sheriff's department,
county probation department, as specified, or the county
welfare department and specifies procedures for the agencies
receiving a report to ensure it is transmitted to the proper
jurisdiction, when the agency lacks jurisdiction. Prohibits
agencies that are required to receive reports of suspected
child abuse or neglect from refusing to accept a report from a
mandated reporter or other person, as specified, and requires
the receiving agency to maintain a record of all reports
received. (PC 11165.9)
9)Requires a mandated reporter, as defined, to make a report to
one of the aforementioned agencies whenever the mandated
reporter, in his or her professional capacity or within the
scope of his or her employment, has knowledge of or observes a
child whom he or she knows or reasonably suspects has been the
victim of child abuse or neglect. Requires a mandated
reporter to make an initial report by telephone immediately or
as soon as is practicably possible, and requires the mandated
reporter to prepare and send a written follow-up report via
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fax or electronic transmission, within 36 hours of receiving
the information concerning the incident. (PC 11166(a))
10)Provides that mandated reporting duties are individual and
prohibits any supervisor or administrator from impeding or
inhibiting an individual's reporting duties, and prohibits
sanctioning an individual for making a mandated report. (PC
11166(i))
11)Provides that no mandated reporter who reports a suspected
incident of child abuse or neglect shall be held civilly or
criminally liable for any report required or authorized by
CANRA. (PC 11172(a))
12)Sets forth potential imprisonment and monetary fines for any
supervisor or administrator who impedes or inhibits a report
of abuse or neglect by a mandated reporter. (PC 11166.01)
13)Requires a law enforcement agency to immediately, or as soon
as practicably possible, report by telephone, fax, or
electronic transmission to the agency given responsibility for
investigation of a child welfare services case and to the
district attorney's office every known or suspected instance
of child abuse or neglect reported to it, as specified. (PC
11166 (k))
14)Prohibits an employer, or any person acting on behalf of the
employer, from making, adopting, or enforcing any rule,
regulation, or policy preventing an employee from disclosing
information to a government or law enforcement agency, to a
person with authority over the employee, or to another
employee who has authority to investigate, discover, or
correct the violation or noncompliance, or from providing
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information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, if the
employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal
rule or regulation, regardless of whether disclosing the
information is part of the employee's job duties. Further
prohibits an employer, or any person acting on behalf of the
employer, from retaliating against an employee for having
exercised his or her right to disclose such information, as
specified. (LAB 1102.5)
FISCAL EFFECT: Unknown
COMMENTS:
Community care facilities: The Community Care Licensing
Division (CCLD) within the Department of Social Services
licenses and regulates a variety of community care facilities,
defined as "any facility, place, or building that is maintained
and operated to provide nonmedical residential care, day
treatment, adult day care, or foster family agency services for
children, adults, or children and adults, including, but not
limited to, the physically handicapped, mentally impaired,
incompetent persons, and abused or neglected children." There
are a number of different types of community care facilities,
which include, among others, group homes, foster family
agencies, social rehabilitation facilities, adult day programs,
adoption agencies, small family homes, transitional shelters,
runaway and homeless youth shelters, and enhanced behavioral
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support homes. CCLD also licenses and regulates child care
centers, residential care facilities for the elderly and other
facilities. Approximately 65,000 care facilities are licensed
by CCL throughout the state, with the capacity to serve 1.3
million Californians.
Foster family agencies: Among the numerous facilities and
certified family homes that fall within the Community Care
Facilities Act are foster family agencies (FFAs), which are
licensed, private entities that are used by county placement
agencies for the placement of children within the child welfare
services system who have intensive care needs. FFAs are charged
with recruiting, training, and certifying families to provide
homes for children, and they are responsible for providing
regular monitoring and oversight of the families they certify to
ensure they are able to meet the needs of children who live with
them. As of June 2015, there were 242 FFAs throughout the
state, responsible for 11,034 FFA-certified homes.
Need for this bill: This bill seeks to ensure DSS takes action
with respect to a violation of the prohibition on an
administrator or supervisor impeding or inhibiting a mandated
report in all facilities and certified family homes that fall
under the Community Care Facilities Act, while other provisions
of this bill that pertain to information provided during an
orientation and social worker access to a voluntary disclosure
hotline are specific to FFAs. The sponsor of this bill,
Children's Advocacy Institute (CAI) points to the stories of FFA
social workers that have reached out to it and asserts that none
of the safeguards in current law, including the criminal
penalties within CANRA, as well as employee whistleblower
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protections, have proven strong enough to deter an administrator
or supervisor from impeding or inhibiting a mandated report.
According to the author, "Mandated reporting of child abuse and
neglect is a policy designed to protect our children and is the
primary way we find out about abused and neglected children.
Teachers, county officials, and certain state employees are
required to report any suspected case of child abuse or neglect
offenses, perpetrated by any person, as defined by the
California Penal Code, even if the mandated reporter's
supervisor disagrees. It is unacceptable that a supervisor
compromises the safety and security of children who need that
protection most in order to safeguard his own interests. [This
bill] will give the Department of Social Services, which
licenses FFAs, more enforcement power to administer current law
and will also provide more protections for mandated reporters at
these FFAs when they report incidents of child abuse and
neglect."
Staff comments: While current law grants DSS the authority to
take action pertaining to a community care facility's license
when it discovers conduct that is inimical to the health and
safety of the individuals served by the facility or certified
family home, this bill requires the department to take specific
actions with respect to a community care facility's license when
an administrator or licensee is found to have impeded or
inhibited a mandated report. This could minimize the
department's flexibility in appropriately addressing the
individual or individuals charged with such conduct while it
ensures the well-being of, and potentially the continuity of
services for, those cared for by the facility or certified
family home. Furthermore, this bill does not modify the code
section that makes action related to a facility's license
permissive (HSC 1550), thereby placing the requirement to take
licensing action in direct conflict with language that will
remain in statute.
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This bill further impedes the department's ability to consider
all factors and appropriately address instances of malfeasance
by eliminating the department's ability to reinstate any
license, registration, or special permit that is suspended or
revoked upon finding that a licensee or administrator has
violated the prohibition on inhibiting a mandated report.
Additionally, it ties the actions required of the department
directly to the acts of an administrator or licensee, which
could result in, for example, a larger community care facility
losing its license as the result of the actions of one
individual within the administrative structure that the
department already has statutory authority to remove from the
facility.
RECOMMENDED AMENDMENTS:
In order to address the aforementioned concerns, committee staff
recommends this bill be amended per the following:
1)Delete Sections 1 and 2
2)Include Health and Safety Code Section 1558 and add a new
subdivision (i) per the following:
(i) Notwithstanding paragraph (2) of subdivision (a), or
subdivision (c) of Section 1550, the department shall take
reasonable action, which may include, but is not limited to,
prohibiting any person from being a member of the board of
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directors, an executive director, or an officer of a licensee of
a licensed facility or certified family home, or denying an
application for, or suspending or revoking, any license, or any
special permit, certificate of approval, or administrator
certificate, issued under this chapter, or denying a transfer of
a license pursuant to paragraph (2) of subdivision (c) of
Section 1524, upon a finding of a violation of subdivision (i)
of Section 11166 of the Penal Code.
Other considerations: Section 4 of this bill, which includes
FFA social workers among the individuals eligible to access the
statewide hotline for voluntary disclosures of child welfare
services (CWS) violations (which is currently accessible to
county CWS social workers), includes reporting requirements that
may not result in the intended outcome. While any disclosures
by FFA social workers made through the hotline will eventually
have to be fielded by CCL, the report the department will have
to generate and submit to the Legislature could have the
unintended consequence of pointing directly to the individual
instances of program violations and specific FFA social workers,
if the number of calls received through the hotline is low.
Should this bill move forward, the author should work with the
Department of Social Services to ensure the goals of this bill
are met and social workers granted access to the hotline are not
deterred from using it.
PRIOR LEGISLATION
AB 403 (Stone), Chapter 773, Statutes of 2015, implements
Continuum of Care Reform recommendations to better serve
children and youth in California's child welfare services
system, including accreditation and other requirements for FFAs
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and other out-of-home placement options for children in the
child welfare services system.
AB 1978 (Jones-Sawyer), Chapter 768, Statutes of 2014, among
other provisions, requires the Department of Social Services, in
consultation with counties and labor organizations, to establish
a process to receive voluntary disclosures from county social
workers who have reasonable cause to believe that a policy,
procedure, or practice related to the provision of child welfare
services by a county child welfare agency endangers the health
or well-being of a child. The bill also sets forth certain
reporting requirements for the department related to voluntary
disclosures that are consistent with this bill, and authorizes a
county child welfare social worker to comment on a child
fatality once certain documents have been released from the
child's case file. A hotline for social workers was established
on January 4, 2016 to meet the voluntary disclosure process
requirements.
REGISTERED SUPPORT / OPPOSITION:
Support
Children's Advocacy Institute (CAI) - sponsor
Crime Victims United of California (CVUC)
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Opposition
None on file.
Analysis Prepared by:Myesha Jackson / HUM. S. / (916) 319-2089