BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HUMAN SERVICES
                               Senator McGuire, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 1001
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          |Author:   |Maienschein                                           |
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          |Version:  |January 14, 2016       |Hearing    |May 10, 2016     |
          |          |                       |Date:      |                 |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Mareva Brown                                          |
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             Subject:  Child abuse:  reporting:  foster family agencies


            SUMMARY
          
          This bill would require that if the California Department of  
          Social Services (CDSS), as a condition of licensure, requires  
          the specified officials of a foster family agency (FFA) to  
          attend an orientation, then that orientation shall include a  
          description of policies, procedures, or practices that violate  
          state's mandated reporter statutes. The bill would also require  
          CDSS to take reasonable action if a violation is found, as  
          specified. The bill additionally adds social workers in foster  
          family agencies to the existing county social worker  
          whistleblower program, and requires Legislative reporting, as  
          specified.


            ABSTRACT
          
          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 a foster family agency to mean 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  








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               places for placement of children for temporary or permanent  
               care who require that level of care. Requires private  
               foster family agencies to be organized and operated on a  
               nonprofit basis. (HSC 1502 (a)(4))

             3)   Permits CDSS to deny an application for, or suspend or  
               revoke, any license, or any special permit, certificate of  
               approval, or administrator certificate, for the violation  
               of rules or regulations governing Community Care  
               Facilities, as specified. (HSC 1550)

             4)   Permits CDSS to prohibit any person from being a member  
               of the board of directors, an executive director, or an  
               officer of a licensee, who has violated rules or  
               regulations, engaged in conduct that is inimical to health,  
               morals, welfare or safety of the clients or others, been  
               denied an exemption to work in the facility, or other  
               violations. (HSC 1558)

             5)   Establishes within the Child Abuse and Neglect Reporting  
               Act, the requirement for 44 specified categories of persons  
               who work with children to report suspected abuse or  
               neglect, as well as other individuals whose professions or  
               volunteer work may include routine interactions with  
               children. (PC 11165.7)

             6)   Requires mandated reporters to make a report of  
               suspected abuse or neglect to a specified law enforcement  
               agency or county child welfare department, prohibits  
               agencies that are required to receive reports from refusing  
               to accept a report and requires the receiving agency to  
               maintain a record of all reports received. (PC 11165.9)

             7)   Requires that a mandated reporter who in his or her  
               professional capacity knows or reasonably suspects a child  
               has been the victim of child abuse or neglect that the  
               mandated reporter must make an initial report by telephone  
               to the agency immediately or as soon as is practicably  
               possible, and shall prepare and send a written follow-up  
               report within 36 hours of receiving the information about  
               the incident, as specified. (PC 11166)


             8)   Establishes that failure of a mandated reporter to  









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               report an incident of known or reasonably suspected child  
               abuse or neglect is guilty of a misdemeanor punishable by  
               up to six months confinement in a county jail or by a fine  
               of one thousand dollars ($1,000) or by both that  
               imprisonment and fine. (PC 11166 (c))


             9)   Specifies that mandated reporting duties are individual,  
               and prohibits any supervisor or administrator from impeding  
               or inhibiting the reporting duties. Specifies that no  
               person making a report shall be subject to any sanction for  
               making the report, but permits internal procedures to  
               facilitate reporting and apprise supervisors and  
               administrators of reports to be established. (PC 11166 (i))

             10)  Establishes sanctions for any supervisor who impedes or  
               inhibits reporting duties, as specified, of not more than  
               six months in a county jail, by a fine of not more than one  
               thousand dollars ($1,000), or by both. Additionally  
               establishes sanctions for any mandated reporter who  
               willfully fails to report abuse or neglect, or any person  
               who impedes or inhibits a report of abuse or neglect, where  
               that abuse or neglect results in death or great bodily  
               injury, of not more than one year in a county jail, by a  
               fine of not more than five thousand dollars ($5,000), or by  
               both. (PC 11166.01)

             11)  Prohibits an employer from making, adopting or enforcing  
               any rule, regulation or policy preventing an employee from  
               disclosing information to a government or law enforcement  
               agency, as specified, or from retaliating against an  
               employee who discloses such information, as specified. (LAB  
               1102.5)

             12)  Requires CDSS to establish a process to receive  
               voluntary disclosures from social workers who believe that  
               a policy, procedure, or practice by a county child welfare  
               agency endangers the health or well-being of a child or  
               children, and is contrary to existing statute or to public  
               policy, as specified. Requires a whistleblower report be  
               provided to the Legislature by January 1, 2018 with the  
               number of disclosures received, a summary of issues raised  
               and departmental actions. (WIC 10605.5)
          









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          This bill:

             1)   Adds a new section to the health and safety code to  
               require any orientation by CDSS for a chief executive  
               officer or other member of the board of directors and the  
               administrator of a foster family agency include a  
               description of policies, procedures, or practices that  
               violate the mandated reporting sections of state law, as  
               specified. 

             13)  Adds to any required written plan of operation that is  
               part of an application for licensure of an FFA the  
               additional requirement of a written plan establishing  
               policies, procedures and practices to ensure that the FFA  
               does not violate the state's mandated reporter laws, as  
               specified.

             14)  Requires CDSS to take reasonable action, including, but  
               not limited to, prohibiting a person from being a member of  
               the board of directors, an executive director, or an  
               officer of a licensee of a licensed facility, or denying an  
               application for, or suspending or revoking, a license,  
               special permit, certificate of approval, or administrator  
               certificate, or other penalties, as specified, upon a  
               finding of a violation the mandated reporter statute, as  
               specified.


             15)  Adds to the existing disclosure process for county  
               social workers the requirement that CDSS also receive  
               voluntary disclosures from social workers employed at an  
               FFA, as specified, including complaints that the state's  
               mandatory reporting law has been violated. 


             16)  Requires CDSS report to the legislature the following no  
               later than July 1, 2019:


               a)     The total number of relevant disclosures received  
                 from social workers employed at FFAs including the month  
                 and year the disclosure was received.
               b)     A summary description of both the issues raised in  
                 the disclosures received from a social worker, and the  









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                 actions taken by the department in response to the  
                 disclosures.

             1)   Requires CDSS to post the summary information on its  
               Internet Web site no later than July 1, 2019.


            FISCAL IMPACT
          
          According to an analysis by the Assembly Appropriations  
          Committee, this bill would incur minor costs to CDSS to provide  
          access to the voluntary disclosure process and to compile the  
          required report to the Legislature.



            BACKGROUND AND DISCUSSION
          
          Purpose of the bill:

          According to the author, this bill addresses concerns that some  
          Foster Family Agency administrators have kept social workers  
          from making mandated reports to law enforcement agencies about  
          abuse or neglect in foster homes. Because the "likelihood of  
          this lack of reporting becoming a criminal matter is extremely  
          remote, there must be an additional civil remedy and FFA's must  
          be made aware of it," the author states.

          The bill adds to training for FFA administrators additional  
          information about the state's mandated reporting laws and the  
          criminal and administrative sanctions that exist for social  
          workers and administrators who fail to report. The bill also  
          expands the state's existing whistleblower program for county  
          social workers to social workers in the privately run FFAs.

          
          Child abuse 

          Nationally, an estimated 1,520 children died from abuse and  
          neglect in 2013, according to data from the National Child Abuse  
          and Neglect Data System (NCANDS). The US Administration on  
          Children and Families translates this to a rate of 2.04 children  
          per 100,000 children in the general population and an average of  
          four children dying every day from abuse or neglect. NCANDS  









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          defines "child fatality" as the death of a child caused by an  
          injury resulting from abuse or neglect or where abuse or neglect  
          was a contributing factor.<1> 

          In FFY 2013, an estimated 679,000 children were victims of abuse  
          and neglect, or a rate of 9.1 victims per 1,000 children in the  
          population, and or 1,860 victims per day. More than one-quarter  
          of the victims were younger than 3 years and one in five were  
          between 3 and 5 years old. The federal government's has  
          established as its standard that states no more than 0.32  
          percent of children in foster care should be abused.  California  
          met or surpassed that standard in the five years reported,  
          between 2009 and 2013.
          
          Foster care
           
          California's county-based child welfare system is designed to  
          protect children at risk of child abuse and neglect or  
          exploitation by providing intensive services to families to  
          allow children to remain in their homes, or by arranging  
          temporary or permanent placement of the child in the safest and  
          least restrictive environment possible. It is the legal "parent"  
          for children in the foster care system. Approximately 62,000  
          children were under the custody of the child welfare system as  
          of October 2015, according to the state's child welfare case  
          management system. About 45,000 children were in out-of-home  
          placements in 2016, according to data released by CDSS with the  
          governor's budget. Of those, approximately 14,000 are placed  
          with Foster Family Agencies.

          Foster Family Agencies (FFAs)

          The state licenses a variety of foster home options for children  
          who are determined to need out-of-home care. A foster family  
          home is typically a private home licensed by a county to provide  
          care. Children with more intensive needs may be instead referred  
          to a foster family agency, which is a licensed, private,  
          nonprofit organization that recruits and trains foster parents.  
          Foster parents in an FFA are certified by the FFA rather than  
          being licensed by the county. FFAs are responsible for providing  
          ---------------------------
          <1>Child maltreatment 2013. U.S. Department of Health and Human  
          Services, Administration for Children and Families,  
          Administration on Children, Youth and Families, Children's  
          Bureau, 2015. 








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          professional support and case management to the foster parents  
          and children, including regular monitoring and oversight of the  
          FFA's certified families to ensure they are meeting the needs of  
          the children who are placed with them. As of June 2015, there  
          were 242 FFAs statewide with 11,034 FFA-certified homes. 

          Mandated Reporters
          
          California's mandated reporter statutes require that certain  
          individuals who, in a professional capacity or within the scope  
          of employment, have knowledge of or observe a child whom the  
          mandated reporter knows or reasonably suspects has been the  
          victim of child abuse or neglect to make an immediate report to  
          a law enforcement agency, as specified. The statute defines what  
          constitutes reasonable suspicion and lists 44 specific  
          categories of employees that are defined as mandated reporters,  
          including teachers, coaches, child care workers, social workers  
          and probation officers, firefighters, specific medical  
          personnel, commercial film and photographic image processors,  
          and others. It requires that mandated reporters be trained about  
          their responsibilities and duties to report, including  
          specifying that the first report must be made by telephone and a  
          subsequent written report must be made within 36 hours of  
          receiving information about the incident. 


          The penalty for a mandated reporter who fails to report an  
          incident in a timely manner is up to six months in jail and a  
          fine of up to $1,000, or both. The punishment for a mandated  
          reporter who either willfully fails to report or who impedes or  
          inhibits a report of abuse or neglect - where the abuse or  
          neglect results in the death or great bodily injury of a child -  
          is up to one year in a county jail, or a fine of not more than  
          $5,000, or both.

          The statute specifies that the reporting duties are individual  
          and states that no supervisor or administrator may impede or  
          inhibit the reporting duties, and no person making a report  
          shall be subject to any sanction for making the report. However,  
          it permits internal procedures to be established to facilitate  
          reporting and apprise supervisors and administrators of reports  
          that will be filed. (PC 11166(i)). The bill's sponsor,  
          Children's Advocacy Institute, argue that this permission has  
          resulted in the privately run FFAs establishing policies that  









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          require social workers to forward to reports to administrators  
          for submission. 

          Related 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  
          and other out-of-home placement options for children in the  
          child welfare services system. 


          AB 1978 (Jones-Sawyer Chapter 768, Statutes of 2014) required  
          CDSS to establish a process to receive voluntary disclosures  
          from county social workers that believe that a county policy or  
          practice endangers children, as specified. A hotline for county  
          social workers was established on January 4, 2016 to meet the  
          voluntary disclosure process requirements. 




            COMMENTS
          

          The bill's sponsor, the Children's Advocacy Institute, notes  
          that while state statute specifies process and penalties for an  
          individual mandated reporter who fails to report, it does not  
          specify sanctions for a supervisor who impedes with an  
          investigation or fails to officially submit an employee's  
          mandated report. 

          The author may want to clarify that an administrator, board  
          member or employee of an FFA is subject to the same sanction as  
          the social worker who fails to file a mandated report and that a  
          supervisor may not require a social worker to allow the  
          supervisor to file the report. 

          


          Staff recommends the following amendments:










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          Penal Code 11165.7 (a) As used in this article, "mandated  
          reporter" is defined as any of the following:
               (1) A teacher.
              (2) An instructional aide.
              (3) A teacher's aide or teacher's assistant employed by a  
          public or private school.
              (4) A classified employee of a public school.
              (5) An administrative officer or supervisor of child welfare  
          and attendance, or a certificated pupil personnel employee of a  
          public or private school.
              (6) An administrator of a public or private day camp.
              (7) An administrator or employee of a public or private  
          youth center, youth recreation program, or youth organization.
              (8) An administrator,  board member  or employee of a public  
              or private organization whose duties require direct  
              contact and supervision of children,  including a foster  
              family agency.
               (9) An employee of a county office of education or the State  
          Department of Education whose duties bring the employee into  
          contact with children on a regular basis. ?

          Penal Code 11166   (i) (1) The reporting duties under this  
          section are individual, and no supervisor or administrator may  
          impede or inhibit the reporting duties, and no person making a  
          report shall be subject to any sanction for making the report.  
          However, internal procedures to facilitate reporting and apprise  
          supervisors and administrators of reports may be established  
          provided that they are not inconsistent with this article.  Under  
          no circumstances may an internal policy direct an employee to  
          allow his or her supervisor to file or process a mandated  
          report.  
              (2) The internal procedures shall not require any employee  
              required to make reports pursuant to this article to  
              disclose his or her identity to the employer.
              (3) Reporting the information regarding a case of possible  
              child abuse or neglect to an employer, supervisor, school  
              principal, school counselor, coworker, or other person  
              shall not be a substitute for making a mandated report to  
              an agency specified in Section 11165.9.

            PRIOR VOTES
          
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          |Assembly Floor:                                            |78 - |









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          |Assembly Appropriations Committee:                         |17 - |
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          |Assembly Rules Committee:                                  |11 - |
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            POSITIONS
                                          
          Support:
               Children's Advocacy Institute (Sponsor)
               California District Attorneys Association
                    

          Oppose:
               None received.
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