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
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<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 - |
| |0 |
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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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