BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 2322
A
AUTHOR: Feuer
B
VERSION: May 13, 2010
HEARING DATE: June 22, 2010
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FISCAL: Appropriations, Urgency 2/3rds required
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2
CONSULTANT:
2
Hailey
SUBJECT
Abuse of children, elder, or dependent persons:
confidentiality
SUMMARY
Broadens the scope of information that can be included in
county multidisciplinary personnel team databases and
authorizes case managers from the California Work
Opportunities and Responsibility to Kids (CalWORKs) program
to participate on child abuse multidisciplinary personnel
teams.
ABSTRACT
Current law
1) Defines "child abuse" as a situation in which a child
suffers from:
serious physical injury inflicted by other than
accidental means,
harm caused by intentional neglect or malnutrition
or sexual abuse,
Continued---
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the absence of basic physical care,
willful mental injury or negligent treatment or
maltreatment, or
any condition which results in the violation of
rights or welfare or jeopardizes present or future
health, normal development, or capacity for
independence. [WIC 18951(e)]
2) Defines a child abuse multidisciplinary personnel team
(MDT) as any team of three or more people trained in the
prevention, identification, and treatment of child abuse
and neglect cases and who are qualified to provide a broad
range of child abuse-related services such as mental health
professionals, law enforcement personnel, social workers,
and teachers. [Welfare and Institutions Code (WIC) Section
18951(d)]
3) Permits members of an MDT, as defined in Section 18951,
to exchange confidential information and writings during
team meetings, provided the information is relevant to the
prevention, identification or treatment of child abuse and
is kept confidential. (WIC Section 830)
4) Permits members of an MDT to exchange confidential
information that includes information about voluntary and
involuntary mental health services if the information and
records are relevant to the prevention, identification,
management, or treatment of an abused child and that
child's parents. (WIC 5328)
5) Allows psychotherapists to release information to law
enforcement agencies if a patient presents a serious danger
of violence to a reasonably foreseeable victim or victims.
(WIC 5328)
6) Authorizes each county to establish a computerized data
base to allow provider agencies to share identifying
information related to families at risk for child abuse or
neglect for the purpose of forming of MDTs for the
prevention, identification, management or treatment of
child abuse. (WIC Section 18961.5)
7) Specifies the identifying information in the data base
as:
the name, address, telephone number, and date and
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place of birth of family members,
the number assigned to the case by each provider
agency,
the name and telephone number of each employee
assigned to the case from each provider agency, and
the date or dates of contact between each provider
agency and a family member.
8) Requires that the information in the system be entered
by and disclosed to designated employees, and the heads of
provider agencies shall establish a system by which
unauthorized personnel cannot access the data contained in
the system.
9) Defines "provider agencies" for the purposes of the
computerized data base as any governmental or other agency
which has as one of its purposes the prevention,
identification, management or treatment of child abuse or
neglect -- agencies including but not limited those
providing social services, children's services, health
services, mental health services, probation, law
enforcement, or education.
10) Requires each county to develop its own standards for
defining "at risk" establishing a computerized database
system for sharing information among MDT members.
11) Establishes the CalWORKs program to provide welfare to
work services and benefit payments to qualifying households
with children.
This bill
1) Establishes consistency in statutory references to
members of child abuse multidisciplinary personnel teams
(MDTs), to the teams themselves, and to the information
shared among team members: members are engaged in and
information is relevant to the prevention, identification,
management or treatment of child abuse or neglect.
2) Adds that the sharing of information among MDT members
can be for the provision of child welfare services, which
is defined as "those services directed at preventing child
abuse or neglect."
3) Allows psychotherapists to release information to
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county child welfare agencies if a patient presents a
serious danger of violence to a reasonably foreseeable
victim or victims.
4) Adds CalWORKs case managers responsible for case
planning and coordination for children and families in need
of both child welfare services and CalWORKs programs, to
the personnel authorized to participate on an MDT.
5) Requires the CalWORKs case manager to get the informed
written consent of the family receiving cross program case
planning and coordination in order to share confidential
information regarding the child and family as a member of
an MDT.
6) Allows counties to enter, into the data base,
information about persons living in the child's home who
are not a family member.
7) Allows counties to enter into the data base convictions
of family members and persons living in the child's home
for crimes that involved a child as a victim.
8) Stipulates that information related to convictions
shall be accessible only to those entities currently
entitled to obtain criminal history records; requires
counties to install system controls to ensure that this
limited access is maintained.
9) Allows conviction information to be discussed among MDT
members.
10) Requires each county that establishes a computerized
database system to develop its own standards for
determining whether a child or family is in need of child
welfare services and requires each provider agency to
develop protocols for applying the county's standards
consistently.
11) Requires each county that establishes a computerized
database system to install system controls to monitor
system use and to detect any violations of the system
controls.
12) Adds an urgency clause.
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FISCAL IMPACT
According to the Assembly Appropriations Committee, costs
would be minor and absorbable.
BACKGROUND AND DISCUSSION
This bill adds to the information contained in computerized
databases that each county can establish to assist
multidisciplinary personnel teams (MDTs) in their provision
of child welfare services and child abuse prevention,
investigation, and treatment. The bill adds information
regarding unrelated persons who may live in the household
of a child receiving child welfare services or who is at
risk of abuse or neglect; and, by adding information to the
database about convictions for crimes against a child.
In addition, the bill adds CalWORKs case managers, with a
family's permission, to these child welfare and child abuse
MDTs.
Third, the bill adds consistency to the various code
sections dealing with MDTs and with the computerized
databases.
Child abuse multidisciplinary personnel teams
For about 20 years, California law has authorized
multidisciplinary teams (MDTs) to allow a coordinated
interagency response to child abuse cases. MDTs, formed
and operated at the county level, can share confidential
information among team members for the purposes of
preventing, identifying, or treating child abuse.
Currently, all 58 California counties operate child abuse
MDTs.
Adding CalWORKs case managers to MDTs
In approximately 30 California counties, case managers in
the CalWORKs program join colleagues providing child
welfare services for the purpose of case planning and
coordination. These coordinated efforts are called the
"linkages project." This bill will allow CalWORKs case
managers to be part of MDTs working on the prevention,
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investigation, management, or treatment of child abuse.
These CalWORKs case managers participate on a child welfare
MDT with the informed written consent of the family
involved.
Computerized databases
Under existing law, counties may establish computerized
databases so that provider agencies can share identifying
information regarding families receiving child welfare
services and children at risk of abuse or neglect. A
county's database is available to members of these
multidisciplinary personnel teams that are charged with
preventing, identifying, managing, and treating child
abuse.
At this time, Los Angeles County is the only California
county operating a computerized database for its MDTs.
Called the family child index, it is a "pointer" system,
telling authorized users if another participating agency
has had contacts with a family. For example, a social
worker investigating an abuse case after providing
emergency response should be able to discover if the
district attorney's office, the sheriff's department, or
another county agency such as social services and health
services, has had contact with the child or a member of the
child's family. The database includes the name and phone
number of a person in each of those departments whom the
social worker can contact for more information. Those
contact persons constitute the team that can share
information.
According to the author, Los Angles County now requires its
child welfare workers to consult the family child index.
Confidentiality
Existing state and federal laws prohibit most county health
and human services programs and educational entities from
sharing confidential patient, recipient, and student
information without the express consent of the individual,
or in the case of minors, the parent or guardian. These
laws safeguard individuals' right to privacy. Statutes
sometimes allow confidential information to be shared among
government agencies although written permission is often
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required, and civil and criminal penalties may apply if the
information is unlawfully disclosed.
Federal law provides exceptions to confidentiality
protections for child abuse or neglect reports and records
under the Child Abuse Prevention and Treatment Act (42
U.S.C. 5101 et seq.), which requires federal, state, or
local government agencies to share confidential
information in order to fulfill their legal
responsibilities to protect children from abuse and
neglect.
Related legislation and a potential conflict
AB 2229 (Brownley), to be heard by the Senate Human
Services Committee and sponsored by the Los Angeles County
District Attorney, also makes changes in the composition of
MDTs and the information available to them.
Arguments in support
The County Welfare Directors Association supports the bill
in general and specifically argues for allowing CalWORKs
case managers to participate on MDTs: such participation
will improve cross-program planning and coordination. The
County of Los Angeles supports the clarification of
circumstances under which information can be shared among
multidisciplinary team members. It also argues that timely
access to information about unrelated persons living in a
child's home and conviction information about those persons
and family members will assist social workers prior to
making home visits.
Arguments in opposition
Because the bill adds information about convictions to the
database, the American Civil Liberties Union recommends
four changes:
Require notice to individuals in the database that
information is being held about him or her and the
opportunity for correction of inaccuracies in the
information.
Require destruction of data after specified time
periods - when it is no longer useful to maintain
personal and conviction information in the database.
Establish legal remedies including injunctive
relief for individuals if their information is
wrongfully accessed or deliberately misused.
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Define "at risk for child abuse or neglect" and
delete the reference to "in need of child welfare
services" in order to provide a more narrow definition
of who can be included in a county database.
COMMENTS AND QUESTIONS
Technical amendment
On page 15, line 12 and on page 17, line 3, change
"joining" to "establishing." This will avoid any
implication that county database systems are multi-county
or regional.
ACLU objections
As noted above in the "arguments in opposition," the
inclusion of conviction information in the county database
raises objections from the American Civil Liberties Union.
The ACLU's first recommended amendment is to provide notice
to persons when conviction information is entered into a
county's child abuse computerized database. Los Angeles
County, currently the only county with an established
database per WIC Section 18961.5, replies that individuals
already know they are in the county district attorney's
files and can challenge the accuracy of that information.
Supporters argue that multiple notices may confuse
individuals, and the county believes that requiring a
notice in the case of the 18961.5 database would add to
their workload. The ACLU believes that fairness demands
that an individual has the opportunity to correct the
record that may be shared across a wide range of county
departments and schools, particularly if there is no
expiration for data added to the child abuse database.
Although the Senate Public Safety Committee is not hearing
this bill, their general approach is to require notice when
conviction information is not based on a fingerprint
clearance. Per this bill, data on convictions is based on
name, address, phone number, and date of birth, rather than
fingerprint identification.
A second and related concern of the ACLU is the fact that
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the statute sets no expiration on the length of time a
county can maintain data about an individual in this child
welfare database. The ACLU believes that a date should be
set, when a child reaches adulthood or some period of time
after that date, such as five or ten years. Los Angeles
County, which is the only county that has established a
database of children at risk of abuse, per WIC 18961.5,
established its database in the early 1990s and has to date
purged no information. The county argues that
intergenerational child abuse warrants maintaining
information about a person long after they become adults: a
report of possible abuse or neglect by an adult who, per
the database, was the object of a substantiated or an
inconclusive report of abuse as a child will raise red
flags. The ACLU responds that it is the combination of no
expiration on conviction information and no notice of these
data's initial inclusion in the child welfare database that
raises their objection. Although the bill is not being
heard by the Senate Public Safety Committee, their frequent
practice is to expunge convictions from entry into some
databases when the conviction is more than ten years old.
The third concern of the ACLU is their belief that
individuals should have injunctive relief for wrongfully
accessed or deliberately misused information. The current
statutes and the language in AB 2322 emphasize the
confidentiality of the information and require counties to
build in safeguards to counter misuse. In responding to
the ACLU's recommended amendment, Los Angeles County,
currently the only county to maintain a child welfare
database per WIC Section 18961.5, believes that injunctive
relief is unnecessary because the data for each individual
case is used by a limited number of people and its use is
internal: that is, these data are not used for employment
decisions or not made public as are other databases that
include conviction information. The ACLU responds that
conviction information that's not subject to notice and
that is never purged could, at some time, be misused or
compromised and that harm could come to an individual,
particularly if part of the misuse was making the
information public. The combination of these several
aspects of the bill argues for injunctive relief.
Fourth, the ACLU is concerned that the bill's criteria for
who can be included in the database are too broad, with
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each of 58 counties given more latitude than necessary when
defining who is "at risk" and when determining who needs
services "to prevent child abuse or neglect," the bill's
definition of "child welfare services." While Los Angeles
County may adopt a reasonable definition of "at risk" and
utilize a reasonable protocol for defining what triggers
adding a child to the database in question, other counties
may not.
Staff recommendations
The fourth concern of the ACLU may be the easiest to
address to give direction to other counties that may
establish a child welfare database without changing the
current practice of Los Angeles County. According to the
county, opening a case follows a face-to-face response by
child welfare staff to a report of suspected abuse or
neglect - what statute defines as "emergency response."
Therefore, staff recommends that the bill be amended to
limit the database, as defined in WIC Section 18961.5, to
children and families for whom the county has made an
emergency response and found either substantiated or
inconclusive evidence of abuse or neglect. This is the
current practice in Los Angeles County, so it should not
change their current approach while providing direction to
other counties that may adopt a "pointer" database.
The remaining issues deal with conviction information.
Staff recommends that notice be provided to individuals
when conviction information is entered into the child
welfare database. This recommendation is congruent with
the approach used by the Senate Public Safety Committee in
similar instances. Databases, such as the state's Child
Abuse Central Index (CACI), have a history of inaccuracy.
Legislative action over the past few years has given
attention to those inaccuracies, and by most accounts, data
entry into CACI has improved and hearings wherein
individuals can challenge the accuracy of results has led
to additional corrections. Society's revulsion at crimes
against children is such that providing an opportunity to
correct the record before erroneous information is made
public, even accidently, warrants the extra step of notice
when conviction information is added to a county's database
that will be used by MDTs.
Staff also recommends that conviction information be purged
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from the computerized database ten years after a child
reaches majority . This recommendation has a connection to
the general practice of the Senate Public Safety Committee
to limit information in databases to ten years since the
conviction. The database would continue to include contact
information with the district attorney's office, but
conviction information would no longer be available on-line
to members of a multidisciplinary personnel team.
Staff has no recommendation on providing injunctive relief .
The committee may want to delve into this issue in more
depth during the hearing.
POSITIONS
Support: County Welfare Directors Association
(co-sponsor)
Los Angeles County Board of Supervisors
(co-sponsor)
Service Employees International Union
(co-sponsor)
Los Angeles County Sheriff's Department
State Public Affairs Committee of the Junior
Leagues of California
Oppose: American Civil Liberties Union (unless amended)
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