BILL ANALYSIS Ó SENATE COMMITTEE ON HUMAN SERVICES Senator McGuire, Chair 2015 - 2016 Regular Bill No: AB 1001 ----------------------------------------------------------------- |Author: |Maienschein | ----------------------------------------------------------------- |----------+-----------------------+-----------+-----------------| |Version: |January 14, 2016 |Hearing |May 10, 2016 | | | |Date: | | |----------+-----------------------+-----------+-----------------| |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Mareva Brown | |: | | ----------------------------------------------------------------- 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 AB 1001 (Maienschein) PageB of? 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 AB 1001 (Maienschein) PageC of? 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) AB 1001 (Maienschein) PageD of? 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 AB 1001 (Maienschein) PageE of? 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 AB 1001 (Maienschein) PageF of? 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. AB 1001 (Maienschein) PageG of? 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 AB 1001 (Maienschein) PageH of? 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: AB 1001 (Maienschein) PageI of? 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 ----------------------------------------------------------------- |Assembly Floor: |78 - | AB 1001 (Maienschein) PageJ of? | |0 | |-----------------------------------------------------------+-----| |Assembly Appropriations Committee: |17 - | | |0 | |-----------------------------------------------------------+-----| |Assembly Rules Committee: |11 - | | |0 | ----------------------------------------------------------------- POSITIONS Support: Children's Advocacy Institute (Sponsor) California District Attorneys Association Oppose: None received. -- END --