BILL ANALYSIS                                                                                                                                                                                                    



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

          Bill No:              SB 524
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          |Author:   |Lara                                                  |
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          |Version:  |August 19, 2016        |Hearing    |August 26, 2016  |
          |          |                       |Date:      |                 |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Mareva Brown                                          |
          |:         |                                                      |
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             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,  








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               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) 










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          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. 










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             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.









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                     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  









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               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,  









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                 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.









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             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  









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               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









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          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
                                                  








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          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/







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          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  









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               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.









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          PRIOR VOTES
          
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          |Assembly Floor:                                            |49 - |
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          |Assembly Appropriations Committee:                         |16 - |
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          |Assembly Human Services Committee:                         |7 -  |
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          Senate Floor:                                               35 -  
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          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.
            









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          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 --