BILL ANALYSIS Ó SENATE COMMITTEE ON HUMAN SERVICES Senator McGuire, Chair 2015 - 2016 Regular Bill No: SB 524 ----------------------------------------------------------------- |Author: |Lara | ----------------------------------------------------------------- |----------+-----------------------+-----------+-----------------| |Version: |August 19, 2016 |Hearing |August 26, 2016 | | | |Date: | | |----------+-----------------------+-----------+-----------------| |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Mareva Brown | |: | | ----------------------------------------------------------------- Subject: Private alternative boarding schools and outdoor programs Hearing subject to Joint Rule 29.10 SUMMARY This bill establishes the licensure categories of "private alternative boarding school" and "private alternative outdoor program" and would make those facilities subject to regulation under the Community Care Licensing Act as of January 1, 2018 and January 1, 2019, respectively. The bill would also establish rights for youth admitted to a private alternative boarding school or a private alternative outdoor program and would require each prospective youth and his or her parent or guardian be provided with an accurate written description of the programs. The bill requires training in specified subject areas, and makes other regulatory changes. ABSTRACT Existing law: 1) Establishes the California Community Care Facilities Act to provide for the licensure and regulation of community care facilities by California Department of Social Services (CDSS). (HSC 1500, et seq.) 2) Defines "community care facility" to mean any facility, SB 524 (Lara) PageB of? 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, individuals with physical disabilities or mental impairments and abused or neglected children. Includes within this definition, among a number of other facilities: group homes, foster family homes, small family homes, full-service adoption agencies, noncustodial adoption agencies, and transitional shelters. (HSC 1502) 3) Defines "residential facility" to mean a family home, group care facility, or similar facility providing 24-hour nonmedical care to persons in need of personal services, supervision, or assistance that is essential for sustaining the activities of daily living, or for the protection of the individual. (HSC 1502 (a)(1)) 4) Prohibits the operation of an unlicensed community care facility, defined as a facility providing, or representing that it provides, care or supervision; or a facility which accepts residents demonstrating the need for care and supervision; or which represents itself as a licensed community care facility, that is not exempted from licensure. (HSC 1503.5) 5) Exempts specified facilities from the requirements of the Community Care Facilities Act, including a health facility or clinic, as defined, a juvenile placement facility approved by the Department of Corrections and Rehabilitation, Division of Juvenile Justice or any juvenile hall operated by a county, any child day care facility, foster homes, any facility conducted for the adherents of any well-recognized church or religious denomination who depend upon prayer or spiritual means for healing in the practice of the church or denomination, any school dormitory or similar facility determined by the department, any facility that supplies board and room only, or room only, recovery houses providing group living arrangements, and others. (HSC 1505) SB 524 (Lara) PageC of? This bill: 1) Makes various legislative findings and declarations, including: a) For decades, hundreds of nontraditional treatment programs that are intended to be less restrictive treatment options for children with significant behavioral issues have been established nationwide, with thousands of allegations of abuse, including death. b) There are currently facilities operating within California that are not licensed by CDSS. c) These facilities are often owned and operated by nonprofit organizations described in Section 501(c)(3) of the Internal Revenue Code. d) These facilities advertise services for youth with behavioral issues to families who may feel they have no other options. e) Former students have formed national and local organizations to expose the trauma and abuse they experienced at these facilities. f) Students at these facilities are previous victims of trauma, have experienced parental rejection based on actual or perceived sexual orientation or gender identity, and have mental health and substance use issues. g) It is the role of the Legislature to ensure proper licensing and regulation of residential facilities for the protection and care of all citizens. h) It is the intent of the Legislature that the state license private alternative boarding schools and private alternative outdoor programs as community care facilities to ensure the safety of children admitted to those schools or programs 1) Adds to statute the licensure category of "private alternative boarding school" and defines it as a group home licensed by CDSS to provide youth with 24-hour residential care and supervision, which, in addition to providing educational services to youth, provides, or holds itself out as providing, behavioral-based services to youth with social, emotional, or behavioral issues. SB 524 (Lara) PageD of? 2) Adds to statute the licensure category of "private alternative outdoor program" and defines it to mean a group home licensed by CDSS to operate a program to provide youth with 24-hour residential care and supervision, which provides, or holds itself out as providing, behavioral-based services in an outdoor living setting to youth with social, emotional, or behavioral issues, as specified. 3) Requires that the care and supervision provided by private alternative boarding schools and private alternative outdoor programs be nonmedical, except as otherwise permitted by law. 4) Requires a private alternative boarding school or private alternative outdoor program to comply with all statutory provisions applicable to group homes, unless otherwise indicated, and requires the facility to do all of the following: Be owned and operated on a nonprofit basis by a private nonprofit corporation or a nonprofit organization. Prepare and maintain a current, written plan of operation, as defined by CDSS. Offer 24-hour, nonmedical care and supervision to youth who voluntarily consent to being admitted to the program and who are voluntarily admitted by his or her parent or legal guardian. Not admit a child younger than 12 years of age. Not admit a youth who has been assessed by a licensed mental health professional as seriously emotionally disturbed, unless the youth does not require care in a licensed health facility and the facility is certified to provide appropriate mental health treatment, as specified. Provide each prospective youth and his or her parent or legal guardian with an accurate written description of the programs and services to be provided. If it advertises or promotes special care, programming, or environments for persons with behavioral, emotional, or social challenges, the written description shall include how its programs and services are intended to achieve the advertised or promoted claims. SB 524 (Lara) PageE of? Ensure that all individuals providing behavioral-based services to youth at the facility are licensed or certified by the appropriate agency, department, or accrediting body, as specified by the department in regulation. Not employ secure containment or manual or mechanical restraints. If it offers access to, or holds itself out as offering access to, mental health services, it shall ensure that those services are provided by a licensed mental health provider. If it advertises or includes in its marketing materials reference to providing alcohol or substance abuse treatment, it shall ensure that the treatment is provided by a licensed or certified alcoholism or drug abuse recovery or treatment facility. 1) Requires a staffing ratio in private alternative outdoor programs be one staff person to every four youths. 2) Requires that a staff member of a licensed private alternative outdoor program who supervises youth receive an additional number of hours of initial and annual training, to be determined by CDSS in regulations developed in consultation with stakeholders in addition to the training required of group home staff by CDSS regulations. 3) Requires a private alternative boarding school or private alternative outdoor program to submit a staff training plan to CDSS as part of its plan of operation. In addition to other required training, as specified, requires training in all of the following subject areas: a) Youth rights, as specified. b) Physical and psychosocial needs of youth. c) Appropriate responses to emergencies, including an emergency intervention plan. d) Cultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities. e) Laws pertaining to residential care facilities for youth. 1) Additionally requires training in the following areas SB 524 (Lara) PageF of? for staff of private alternative outdoor programs: a) Low-impact camping. b) Navigation skills. c) Water, food, and shelter procurement. d) Recognition of poisonous plants. e) Wilderness first aid. f) Health issues related to acclimation and exposure. g) Report writing and log maintenance. 1) Requires youths admitted to a licensed private alternative boarding school or private alternative outdoor program to be accorded the following rights and any other rights adopted by CDSS, as specified. Requires the list of rights to be publicly posted and accessible to youth, and specifies that the youth's rights shall not require a licensee to take any action that would impair the health or safety of youth in the facility. Exempts these providers from adhering to the existing bill of rights for foster children in group homes, as specified in regulation. a) To be accorded dignity in his or her personal relationships with staff, youth, and other persons. b) To live in a safe, healthy, and comfortable environment where he or she is treated with respect. c) To be free from physical, sexual, emotional, or other abuse, or corporal punishment. d) To be granted a reasonable level of personal privacy in accommodations, personal care and assistance, and visits. e) To confidential care of his or her records and personal information, and to approve release of those records prior to release, except as otherwise authorized or required by law. f) To care, supervision, and services that meet his or her individual needs and that are delivered by staff that are sufficient in numbers, qualifications, and competency to meet his or her needs and ensure his or her safety. g) To be served food and beverages of the quality and in the quantity necessary to meet his or her nutritional and physical needs. h) To present grievances and recommend changes in policies, procedures, and services to the program's staff, management, and governing authority, or any other person without restraint, coercion, discrimination, SB 524 (Lara) PageG of? reprisal, or other retaliatory actions, and too have the licensee take prompt actions to respond to those grievances. i) To be able to contact parents or legal guardians, including visits and scheduled and unscheduled private telephone conversations, written correspondence, and electronic communications, unless prohibited by court order. j) To be fully informed, as evidenced by the youth's written acknowledgment, prior to, or at the time of, admission in the program, of all the rules governing the youth's conduct and responsibilities. aa) To receive in the admission agreement information that details the planned programs and services for the youth. bb) To have his or her parents or legal guardians remove him or her from the program. cc) To consent to have visitors or telephone calls during reasonable hours, privately and without prior notice, provided the visitors or telephone calls do not disrupt planned activities and are not prohibited by court order or by the youth's parent or legal guardian. dd) To be free of corporal punishment, physical restraints of any kind, and deprivation of basic necessities, including education, as a punishment, deterrent, or incentive. ee) To have caregivers who have received instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care. ff) To be free from acts that seek to change his or her sexual orientation, including efforts to change his or her gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. gg) To have fair and equal access to all available services, placement, care, treatment, and benefits and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status. hh) To be free from abusive, humiliating, degrading, or traumatizing actions. SB 524 (Lara) PageH of? 2) Prohibits placement of youth in either of these new licensing categories from the child welfare or probation systems and prohibits the payment of a rate for a Short Term Residential Therapeutic Program to either of these facility types. 3) Exempts the licensure requirements of a private alternative boarding school from applying to any facility operated, licensed, or certified by the Department of Corrections and Rehabilitation (CDCR) and its Division of Juvenile Justice, the California Conservation Corps, the Military Department, or any other governmental entity or to a boarding school that solely focuses on academics. 4) Exempts the licensure requirements of a private alternative outdoor program from applying to programs operated, licensed, or certified by CDCR and its Division of Juvenile Justice, the California Conservation Corps, or the Military Department, programs operated by any governmental entity, any organized camp, as defined, outdoor activities for youth designed to be primarily recreational, including, but not limited to, activities organized by Outward Bound, Boy Scouts, Girl Scouts, Camp Fire, or other similar organizations, or any camp exclusively serving children with a medical diagnosis for a physical condition or illness, including, but not limited to, cancer, muscular dystrophy, or burn injuries. 5) Permits CDSS to adopt emergency regulations and requires CDSS to adopt regulations by January 1, 2018 for private alternative boarding schools, and by January 1, 2019 for private alternative outdoor programs in consultation with stakeholders, as specified, and requires that existing programs in each of these categories be compliant with new regulations no later than six months after those dates. 6) Requires that private alternative boarding schools and private alternative outdoor programs be governed by specified existing group home regulations until new regulations are adoptive and become effective. 7) Defines "youth" as a person who is 12 to 17 years of age, inclusive, or a person who is 18 years of age if he or SB 524 (Lara) PageI of? she is completing high school or its equivalent. 8) Requires individuals who are volunteer candidates for mentoring children in private alternative boarding schools or in private alternative outdoor programs to be subject to a criminal background investigation, as specified, prior to having unsupervised contact with the children. 9) Restricts the existing licensure exemption for spiritual programs by removing the exemption for a private alternative boarding school or private alternative outdoor program that uses prayer or spiritual means as a component of its programming or services in addition to behavioral based services, thus making those facilities subject to licensure. 10) Specifies that the existing licensure exemption for a school dormitory or similar facility does not include a private alternative boarding school or private alternative outdoor program. 11) Exempts such facilities from requirements of the "reasonable and prudent parent standard" as required for foster homes and group homes. 12) Permits CDSS to set licensure fees via regulation for both types of new programs. 13) Exempts private alternative boarding schools and private alternative outdoor programs from participating in psychotropic medication monitoring and oversight measures currently required for child welfare placements, as specified. 14) Contains chaptering language to resolve conflicts with AB 1997 and AB 741, as specified FISCAL IMPACT A fiscal analysis of the current version of this bill has not been completed. BACKGROUND AND DISCUSSION SB 524 (Lara) PageJ of? Purpose of the bill: According to the author, residential boarding schools currently are exempt from state licensing and do not have oversight "beyond filing a one-page affidavit with the Department of Education." The author states that the lack of oversight and regulation over private institutions for youth has opened the door to abuse and that parents and guardians often have no idea that a facility is not subject to rigorous licensure standards. "Tragically, many young people have experienced horrendous abuse, neglect, and even death at unregulated boot camps, wilderness camps, and residential institutions," the author states. "Survivors report being denied medical care, corporal punishment, solitary confinement, and discrimination due to sexual orientation." This bill seeks to license and regulate residential facilities and programs aimed at serving youth with social, emotional, behavioral, or mental health issues or disorders. "By requiring CDSS to license private alternative treatment facilities, like boot camps, wilderness camps and others, this bill will protect youth from abuse and neglect in institutions." Background The Community Care Licensing Division of CDSS licenses and regulates a variety of community care facilities, defined as a facility 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. CCL also licenses and regulates child care centers, residential care facilities for the elderly (RCFEs), and other facilities. Approximately 65,000 care facilities are licensed in the state, with the capacity to serve 1.3 million Californians. Private Children's Residential Facilities SB 524 (Lara) PageK of? Private, self-described "therapeutic boarding schools," "wilderness programs," "residential treatment centers," or "reform schools" are 24-hour residential facilities serving children and adolescents who face emotional, mental, academic, physical or social challenges. In some instances, facilities may be licensed as a residential group home or a residential community treatment facility. However, CDSS reports there are facilities and programs in the state that are unlicensed and either relying on the exemption for "school dormitories" provided for in statute (HSC 1505) or because there is no licensing provision for wilderness camps or boot camps. Additionally, numerous programs advertise a presence in California, maintaining corporate offices in-state, with the facility itself located in another state such as Utah or Texas, which have minimal regulatory oversight. According to the National Association of Therapeutic Schools and Programs (NATSAP), its members "provide residential, therapeutic and/or education services to children, adolescents and young adults entrusted to them by parents and guardians. The common mission of NATSAP members is to promote the healthy growth, learning, motivation, and personal well-being of program participants. The objective of member therapeutic and educational programs is to provide excellent treatment for program participants; treatment that is rooted in concern for their well-being and growth; respect for them as human beings; and sensitivity to their individual needs and integrity."<1> Safety and Abuse Concerns Various wilderness programs have been the subject of lawsuits and accusations of abuse and neglect including incidents of "sexualized role play." In 2004, a 14-year-old boy died in a wilderness program after hiking several miles in 90-degree weather. Reportedly, a combination of excessive heat, a constrictive uniform, and the boy's obesity caused his body to overheat. He suffered severe heatstroke requiring immediate --------------------------- <1> http://www.natsap.org/natsap-principles/ SB 524 (Lara) PageL of? medical attention but program staffers ignored complaints and the youth died an hour later at the hospital. In 2012, a mother filed a lawsuit alleging that her 15-year-old daughter was subjected to hours of stress positions, threats of suffocation, exposure to animal abuse and regular public humiliation. The case was dismissed under the two-year statute of limitations that applies for claims involving a health care provider. General Accounting Office report A U.S. General Accounting Office report entitled, "Residential Facilities: Improved Data and Enhanced Oversight Would Help Safeguard the Well-Being of Youth with Behavioral and Emotional Challenges" from May, 2008 evaluated regulatory oversight of residential facilities serving children, including private facilities receiving no government funding. The report identified gaps in regulatory oversight and licensure of private residential facilities serving youth and states: "All states have processes in place to license and monitor certain types of residential facilities, but our survey identified several gaps that exempt certain types of facilities from oversight and allow some of the common causes of youth death and maltreatment to go unaddressed. These gaps include the fact that some types of government-operated and private facilities are exempt from licensing requirements, licensing requirements do not always address the primary causes of youth death and maltreatment, and state agencies inconsistently monitor facilities and share their monitoring results." (page19) "The lack of licensing for all facilities serving youth has several consequences. Within individual states, facility operators may bypass state licensing requirements by self-identifying their business as a type that is exempt from state licensing. (p 23) ? Facility licensing is also important because parents and others considering placing youth in private facilities at their own expense do not always have the information they need to screen facilities and make an informed decision. In our testimony on private SB 524 (Lara) PageM of? facilities last October, we described cases in which program leaders told parents their programs could provide services that they were not qualified to offer, claimed to have credentials in therapy or medicine that they did not have, and led parents to trust them with youth who had serious mental disabilities. One national association for programs serving youth with behavioral and emotional difficulties testified before Congress that state licensing was important because the field does not currently have the capacity to certify facility integrity." Alliance for the Safe, Therapeutic and Appropriate use of Residential Treatment The Alliance for the Safe, Therapeutic and Appropriate use of Residential Treatment (ASTART) a self-described "community of professionals, family members and survivors working to protect children from abuse and neglect in residential programs" states that private therapeutic boarding schools and residential programs for youth often isolate children from parents and advocates. The organization's website states that contact with parents and the outside world often are limited and that "survivors consistently report that scheduled calls with parents are permitted only rarely, if at all, and are strictly monitored and controlled. Calls are never granted at the request of the child who feels they may be in danger. Mail, if allowed, is censored and/or withheld." The organization also states that teens almost never see their parents-a few days a year at most-and family members are rarely, if ever, allowed to visit. ASTART also describes harsh, confrontational "rap" groups held several times a week in which residents are "forced to accuse and yell at each other." One student becomes the focus of verbal attacks by the group. Related legislation: SB 1089 (Liu 2012) sought to license and regulate "private nontraditional alternative treatment facilities for youth" and was similar to this bill. It was held in the Assembly Appropriations Committee. SB 524 (Lara) PageN of? PRIOR VOTES ----------------------------------------------------------------- |Assembly Floor: |49 - | | |20 | |-----------------------------------------------------------+-----| |Assembly Appropriations Committee: |16 - | | |0 | |-----------------------------------------------------------+-----| |Assembly Human Services Committee: |7 - | | |0 | ----------------------------------------------------------------- Senate Floor: 35 - 1 Senate Appropriations Committee: 5 - 0 Senate Human Services Committee: 4 - 0 COMMENTS Senate Rule 29.10 Hearing SB 524 is back before this committee pursuant to Senate Rule 29.10(d), following amendments taken in the Assembly on Aug. 4. An earlier version of SB 524 was heard and passed by this committee on a 4-0 vote on April 28, 2015. The prior version of this bill was on the inactive file on the Assembly floor until August 2, and amended with current language. While the underlying policy and statutory code section remain essentially unchanged, amendments substantially rewrite the policy and licensure requirements within this bill. Additional amendments on Aug. 19th add chaptering language and limit the exemption for religious camps to be licensed. SB 524 (Lara) PageO of? This Committee may take only one of two actions on SB 524 - either pass it to the floor or hold it in committee. It cannot be amended. POSITIONS Support: AIDS Project LA Buenstar Human Services Inc. CA Alliance of Child and Family Services CA LGBT Health and Human Services Network City of LA City of West Hollywood EQCA Gender Health Center LGBTQ Center of Long Beach Sacramento LGBT Center SIA Organization Stonewall Democratic Club Transgender Law Center WWASP Survivors Oppose: Riverview Christian Academy F.A.C.E.S.S. -- END --