BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 776 (Chu)
As Amended June 6, 2005
Hearing date: June 28, 2005
Penal Code
AA:br
MANDATORY CHILD ABUSE AND NEGLECT REPORTING
HISTORY
Source: California Association of Marriage and Family
Therapists
Prior Legislation: None
Support: Office of the San Bernardino County Sheriff; California
Psychological Association; California District
Attorneys Association; California State Sheriffs'
Association; California Probation, Parole and
Correctional Association; California District Attorneys
Association
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
SHOULD A BYPASS MECHANISM ALLOWING INITIAL MANDATED CHILD ABUSE OR
NEGLECT REPORTS TO BE MADE BY FAX OR ELECTRONICALLY BE CREATED WHEN
A REPORTER'S "REASONABLE EFFORTS" TO MAKE AN INITIAL REPORT BY
TELEPHONE HAVE FAILED, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to create a bypass mechanism
allowing initial mandated child abuse or neglect reports to be
made by fax or electronically when a reporter's "reasonable
efforts" to make an initial report by telephone have failed, as
specified.
Current law establishes the Child Abuse and Neglect Reporting
Act. (Penal Code 11164 et seq.)
Current law enumerates 37 categories of mandated reporters.
(Penal Code 11165.7.)
Receiving Agencies
Current law requires that "(r)eports of suspected child abuse or
neglect shall be made by mandated reporters to any police
department or sheriff's department, not including a school
district police or security department, county probation
department, if designated by the county to receive mandated
reports, or the county welfare department. Any of those
agencies shall accept a report of suspected child abuse or
neglect whether offered by a mandated reporter or another
person, or referred by another agency, even if the agency to
whom the report is being made lacks subject matter or
geographical jurisdiction to investigate the reported case,
unless the agency can immediately electronically transfer the
call to an agency with proper jurisdiction. When an agency
takes a report about a case of suspected child abuse or neglect
in which that agency lacks jurisdiction, the agency shall
immediately refer the case by telephone, fax, or electronic
transmission to an agency with proper jurisdiction." (Penal
Code 11165.9.)
This bill would require the agency to "keep a log of the reports
received, regardless of merit, for further evaluation and
investigation, as necessary, on a case by case basis."
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This bill additionally would amend this provision to state that
"(u)nder no circumstances are agencies or employees of agencies
required to receive reports of child abuse or suspected child
abuse to refuse to take a report of child abuse or suspected
child abuse from a mandated reporter."
Process for Mandated Reporting
Current law generally requires mandated reporters who have
knowledge of or observe a child in their professional capacity
or within the scope of their employment and whom they know or
reasonably suspect has been the victim of child abuse or
neglect, to immediately make a report to a child protection
agency, as specified. (Penal Code 11166 (a).)
Current law requires that the "mandated reporter shall make a
report to the agency immediately or as soon as is practicably
possible by telephone, and the mandated reporter shall prepare
and send a written report thereof within 36 hours of receiving
the information concerning the incident." (Id. (emphasis
added).)
This bill would revise this language to characterize the report
made "immediately" as "an initial" report, and characterize the
written report required within 36 hours as the "follow-up"
report.
This bill additionally would revise this section to include the
following:
Provide that, if "after reasonable efforts a mandated reporter
is unable to submit an initial report by telephone, he or she
shall immediately or as soon as is practicably possible, by
fax or electronic transmission, make a one-time automated
written report on the form prescribed by the Department of
Justice, and shall also be available to respond to a telephone
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follow-up call by the agency with which he or she filed the
report. A mandated reporter who files a one-time automated
written report because he or she was unable to submit an
initial report by telephone is not required to submit a
written follow-up report."
Provide that, the "one-time automated written report form
prescribed by the Department of Justice shall be clearly
identifiable so that it is not mistaken for a standard written
follow-up report."
Require that the "automated one-time report shall contain a
section that allows the mandated reporter to state the reason
the initial telephone call was not able to be completed."
Require that the "reason for the submission of the one-time
automated written report in lieu of the (normal procedure)
shall be captured in the Child Welfare Services/Case
Management System (CWS/CMS)."
Require the department to "work with stakeholders to modify
reporting forms and the CWS/CMS as is necessary to accommodate
the changes enacted by these provisions."
This bill would provide that nothing in these provisions "shall
supersede the requirement that a mandated reporter first attempt
to make a report via telephone, or that agencies specified in
Section 11165.9 accept reports from mandated reporters and other
persons as required."
Operative Dates
This bill would require that these "bypass" provisions "shall
not become operative until the CWS/CMS is updated to capture the
information prescribed in this subdivision," and that these
provisions "shall become inoperative three years after this
subdivision becomes operative or on January 1, 2009, which ever
occurs first."
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Report
This bill would require that, on the inoperative date of these
provisions, a report shall be submitted to the counties and the
Legislature by the Department of Justice that reflects the data
collected from automated one-time reports indicating the reasons
stated as to why the automated one-time report was filed in lieu
of the initial telephone report.
Legislative Findings and Declarations
This bill would make specified legislative findings and
declarations.
COMMENTS
1. Stated Need for This Bill
The author states:
Under the Child Abuse and Neglect Reporting Act
(CANRA), health care providers, teachers and
others are required to report suspected child
abuse to local law enforcement or the county
welfare department by telephone.
The telephone report must be made immediately or
as soon as is practically possible. The mandated
reporter must then, within 36 hours, follow-up by
submitting a written report to the local agency.
Failure to report is a crime and could also result
in personal liability.
According to the sponsors of the bill, mandated
reporters are unable or mistakenly dissuaded from
making the telephone report. Reasons for this
vary from not being able to get through to a live
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person because the line is busy or there is no
answer, or that the mandated reporter is informed
by the intake worker that the suspected abuse
"isn't reportable" and therefore causes confusion
regarding the necessity to file a written report.
If a marriage family therapist is unable to file
the telephone report and asks the California
Association of Marriage and Family Therapists what
to do, they are instructed to submit a written
report regardless of the response or inability to
get through to the local agency. However, many
reporters do not contact the Association and fail
to file the appropriate reports because of the
ambiguous or incorrect advice of the local agency
employee. This jeopardizes the safety of the
child and has legal repercussions for the
therapist.
This bill seeks to rectify this situation by
clarifying the statutory requirements relating to
mandated reporters and telephonic reports.
2. What This Bill Would Do
As explained in detail above, current law requires a 2-step
process for mandated child abuse and neglect reporters to make
reports: they first must make a telephone report immediately or
as soon as possible, and then they must make a written report
within 36 hours. The receiving agency generally is required to
accept a report even if it does not have jurisdiction over the
reported case.
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The sponsor of this bill submits that its "members are often
frustrated during the mandated reporting process by the
unwillingness of certain government agencies to take mandated
reports." This bill appears designed to provide a bypass
mechanism for initial reports to be made by fax or
electronically when a mandated reporter's "reasonable efforts"
at making an initial telephone report have failed.
This bill essentially would provide the following:
Allow mandated reporters to "bypass" the initial telephone
report if they are unable to make a report by telephone "after
reasonable efforts;"
Provide that this bypass can be made "immediately or as soon
as is practicably possible, by fax or electronic
transmission;"
Provide that this bypass be a "one-time automated written
report on the form prescribed by the Department of Justice"
which is "clearly identifiable" as such so not to be confused
for a standard written follow-up report, and includes a space
that allows the reporter to explain why they could not report
by telephone;
Require that the reporter "be available to respond to a
telephone follow-up call by the agency with which he or she
filed the report;" and
Track the reasons for use of the bypass system in the Child
Welfare Services/Case Management System (CWS/CMS).
WILL THE PROVISIONS OF THIS BILL ENHANCE THE EFFECTIVENESS OF
CALIFORNIA'S CHILD ABUSE AND NEGLECT MANDATED REPORTING LAWS?
IF AGENCIES ARE FRUSTRATING THE EFFORTS OF MANDATED REPORTERS TO
MAKE REPORTS, IS THE APPROACH PROPOSED BY THIS BILL THE MOST
EFFECTIVE RESPONSE TO THIS PROBLEM?
TO WHAT EXTENT, IF ANY, COULD THE EXCEPTION CREATED BY THIS BILL
CONCERNING INITIAL REPORTS BECOME THE RULE? COULD THIS BILL BE
TIGHTENED TO REQUIRE, RATHER THAN ALLOW, MANDATED REPORTERS TO
STATE WHY THEIR REPORT COULD NOT BE FULFILLED BY TELEPHONE?
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3. Uncertain Operative Date; Updating the Applicable Data System
This bill is drafted to not become operative until the data
tracking system for child welfare services is updated to capture
the information prescribed in this subdivision. One purpose of
tracking these "bypass" reports in the data tracking system is
to ensure that they are effectively flagged as initial,
first-time reports requiring immediate response, and not
"dropped through the cracks" when they are submitted. Similar
to the operative date, the sunset proposed in the bill "floats"
three years after the operative date, or January 1, 2009,
whichever occurs first.
Members of the Committee may wish to inquire about what would be
required to update the CWS/CMS system to capture this additional
data, how long this update could be expected to take, how much
this update could cost, and what if any other cost priorities
may be competing with this proposal with respect to the
effective and efficient implementation of the child abuse and
neglect reporting laws.
4. Technical Revisions
As noted above, this bill would require agencies that receive
reports to "keep a log of the reports received, regardless of
merit, for further evaluation and investigation, as necessary,
on a case-by-case basis." Committee staff understands that the
following technical amendment revising this language is
acceptable to the author:
Agencies who are required to receive reports of
child abuse or suspected child abuse may not
refuse to accept a report of child abuse or
suspected child abuse from a mandated reporter and
shall maintain a record of all reports received.
SHOULD THIS AMENDMENT BE MADE?
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In addition, the Department of Justice has noted a number of
technical revisions the author and/or the Committee may wish to
consider:
Provide that the report required by this bill be produced by
the Department of Social Services instead of the Department of
Justice (because DOJ does not have access to the data on which
the report would be based);
Revise any references to child abuse or suspected child abuse
to include child abuse and neglect (conforming to references
in current law);
Revise the bill's language to reflect existing law, that an
agency may refuse to take a report if it can immediately
transfer a call to the proper agency; and
Revise the language requiring agencies to accept reports from
mandated reporters to include non-mandated reporters as well.
SHOULD THESE AMENDMENTS BE MADE?
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