BILL ANALYSIS �
AB 2101
Page A
Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 2101 (Achadjian) - As Introduced: February 23, 2012
SUBJECT : Juvenile Rehabilitation Training Camp Pilot Program
SUMMARY : Authorizes exceptions to group home licensing
provisions to permit the establishment of a pilot program for
juvenile offenders on a military base in San Luis Obispo County.
Specifically, this bill :
1)Establishes the Juvenile Rehabilitation Training Camp Pilot
Program, in San Luis Obispo County.
2)Authorizes a program meeting the following requirements to be
licensed as a group home, subject to statutory and regulatory
requirements for group homes except as provided:
a) The program is instructed by qualified individuals and
has an emphasis on academics, physical fitness, and
transforming the criminal mindset;
b) The program provides individual and group counseling and
leadership training;
c) The program previously operated as a group home in San
Luis Obispo County; and,
d) The program serves up to 60 individuals.
3)Provides that a group home participating in the pilot program
shall comply with all statutes and regulations governing group
homes except, to the extent permitted under federal law and
the California Constitution, as follows:
a) Limits existing fingerprinting and criminal background
check requirements to individuals authorized to have more
than incidental contact with a juvenile, including persons
providing supervisory, coaching, or counseling services;
the chief executive officer or other person serving in like
capacity; and additional officers of the governing body
with a financial interest in the program, as specified in
regulation;
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b) Requires inspection and visitation policies, to the
extent practicable and appropriate, to limit inspection to
the Department of Social Services (DSS) and limit family
access in accord with orders from the juvenile court and
the probation department with jurisdiction over program
participants;
c) Authorizes the program to be conducted in an open
dormitory setting;
d) Requires program participants to attend an onsite school
supported by credentialed teachers;
e) Authorizes policies related to meals, clothing, and
supervision to be "commensurate with the needs of the
program participants"; and,
f) Authorizes the program to be established on a military
base.
4)Prohibits physical or chemical force, or physical or mental
intimidation or coercion from being used for punishment,
behavior modification, or any other purpose except in response
to an emergency situation creating the risk of imminent
physical harm to a participant or staff, and in accordance
with use-of-force policies adopted by DSS.
5)Limits participation to males between the age of 13 and 17
found to have committed a felony offense pursuant to Welfare
and Institutions (W&I) Code Section 602.
6)Requires an assessment to determine the individual's physical
and psychological suitability for the program, which shall
consider space availability and the individual's preference.
7)Requires DSS to submit a report on the pilot to the
Legislature by January 1, 2018, with specified content.
8)Requires DSS to submit a report to the Legislature by January
1, 2023, including recommendations regarding continuing or
discontinuing the program.
9)Includes a sunset provision repealing the provisions of this
bill on January 1, 2023.
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10)Amends the definition of "group home" in provisions related
to Aid to Families with Dependent Children - Foster Care
(AFDC-FC) to include a program established under the
provisions of this bill.
EXISTING LAW
1)Establishes AFDC-FC to provide aid to needy children in foster
care. W&I Code � 11400 et seq.
2)Provides for the licensure and regulation of group homes by
the Community Care Licensing Division (CCLD) of DSS under the
Community Care Facilities (CCF) Act. Health & Safety Code �
1500 et seq.
3)Authorizes CCLD to approve waivers of regulatory requirement
under specified conditions. 22 California Code of Regulations
(CCR) � 80024.
4)Defines "group home" for purposes of the CCF Act, in part, as
"a facility which provides 24-hour care and supervision to
children, provides services ? to a specified client group, and
maintains a structured environment, with such services provide
at least in part by staff employed by the licensee." 22 CCR �
84001(g).
5)Specifies rights of children in foster care. W&I Code �
16001.9.
6)Specifies rights of children residing in group homes (22 CCR �
84072(c)), including the following:
a) To live in a safe, healthy, and comfortable home where
he or she is treated with respect.
b) To have visitors visit privately during waking hours
without prior notice, provided that such visitations are
not prohibited by the child's needs and services plan; do
not infringe upon the rights of other children; do not
disrupt planned activities; and are not prohibited by court
order or by the child's authorized representative(s).
c) To wear his/her own clothes.
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d) To possess and use his/her own personal items unless
prohibited as part of a discipline program.
e) To have access to individual storage space for his/her
private use.
f) To make and receive confidential telephone calls, unless
prohibited by court order.
g) To contact family members (including brothers and
sisters), unless prohibited by court order, and social
workers, attorneys, foster youth advocates and supporters,
Court Appointed Special Advocates, and probation officers.
h) To attend school and participate in extracurricular,
cultural, and personal enrichment activities consistent
with the child's age and developmental level, and to have
fair and equal access to all available services, placement,
care, treatment, and benefits.
i) At 16 years or older, to have access to existing
information regarding available educational options,
including, but not limited to, coursework necessary for
vocational and postsecondary educational programs.
j) To not be subjected to discrimination or harassment on
the basis of actual or perceived mental or physical
disability.
7)Allows counties to enter into performance agreements with
private, nonprofit agencies to encourage innovation, develop
services for children that are not available in the community
and promote change in the child welfare system. Limits these
agreements to a period of up to 3 years, with an extension of
up to 3 additional years. Requires counties to provide
reports on the agreements to the department within 6 months of
the end of an agreement. Requires the director to make those
reports available to the Legislature upon request. W&I Code �
18987.61.
8)Authorizes the director to waive regulations, except those
pertaining to health and safety, which govern foster care
payments or the operation of group homes to enable counties to
implement the agreements. Allows waivers under specified
circumstances--when the agreement offers a worthwhile test of
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innovation, the regulatory requirement prevents implementation
of the agreement and the county proposes to monitor the waiver
regulation via performance measures. Requires the director to
notify policy and fiscal committees of the Legislature of when
and why a waiver of regulations was granted. W&I Code �
18987.62.
9)Prohibits a court from placing a ward of the court in a
residential facility that provides 24-hour supervision outside
the state unless the court finds that DSS has either certified
that the facility meets all California licensure standards
required of group homes, or has granted a waiver to a specific
licensing standard upon finding that there exists no adverse
impact to health and safety. W&I Code � 727.1(b), (c).
FISCAL EFFECT : Unknown
COMMENTS :
Need for this bill
Although this bill is sponsored by the San Luis Obispo County
Board of Supervisors, the pilot program that would be authorized
would not be a county-run program. According to the author,
this bill "is attempting to solve the issue that there are no
facilities or group homes in San Luis Obispo County which house
? juvenile offenders. This means juveniles are being sent to
out of county facilities that are often 4-6 hours away. San
Luis Obispo County Probation received over 1,300 '602' referrals
in 2008 alone." <1>
The sponsor does not, however, propose to simply address this
unmet need by establishing a group home program in the
county-with or without waivers of particular regulatory
provisions. Instead, this bill would modify the definition of
group home to enable a privately owned program referred to as
"Operation COY" (Concentrate on You) to operate as a 10-year
pilot program for children and youth between the ages of 13 and
17. The program would be "a residential treatment program for
wards of the Juvenile Court that emphasizes rehabilitation
rather than punishment by using a sports training camp format."
---------------------------
<1> It should be noted that there is currently a moratorium in
effect on new group home licenses, subject to case-by-case
exceptions. W&I Code � 11462.04. The Administration has
proposed, through the budget process, to remove the sunset on
the moratorium, thereby extending it indefinitely.
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According to the author, this pilot program would reestablish a
successful program that operated under a group license between
1986 and 1991. That program, which was not located on a
military base, reportedly ended because its five-year lease was
not renewed. The former program was able to operate as a group
home both because it did not require the exemptions needed by
the current program due to its location on a military base and
because there have been changes in requirements and rights
applicable to group homes and group home residents that have
been enacted since the earlier program closed.
Waivers of group home requirements
Facilities licensed under the CCF Act are required to maintain
continuous compliance with applicable regulations. 22 CCR �
80024(a). The CCF Act provides that DSS's regulations "shall
allow for the development of new and innovative community
programs." H&S Code � 1531. CCLD has the authority to approve,
through the granting of "waivers" or "exceptions," "the use of
alternate concepts, programs, services, procedures, techniques,
equipment, space, personnel qualifications or staffing ratios,
or the contact �sic] of experimental or demonstration projects."
22 CCR � 80024(b). "Waivers" apply to a particular regulation
on a facility-wide basis (as opposed to "exceptions," which
apply to a specific staff or client based upon the unique needs
or circumstances of that individual). Alternatives for which a
waiver is sought must be carried out with provisions for safe
and adequate services, and must not be detrimental to the health
and safety of any facility client. The waiver applicant must
submit a written request for a waiver, together with
substantiating evidence supporting the request.
Exemptions under this bill
Information provided on behalf of the author relates that CCLD
denied a number of waivers of group home licensing requirements
requested by the intended provider. To accommodate the program,
this bill would authorize exemptions from requirements otherwise
applicable to group homes, including exemptions related to the
rights of dependents and wards in group homes-tantamount to
fitting a square peg into a round hole by changing the shape of
the hole. Among the exemptions are the following:
Children in group homes have a right to have visitors
visit privately during waking hours without prior notice,
unless, for example, it would be contrary to an individual
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child's needs and services plan or prohibited by court
order. 22 CCR � 84072(c)(5). Under this bill, family and
other visitor access would be restricted across the board
to comply with the military installations Force Protection
Condition restrictions and Operation COY's visitor
guidelines.
Group home residents have the right to "live in a safe,
healthy, and comfortable home." 22 CCR �� 84072 (c)(14).
The proposed program would authorize "open dormitory" or
barracks-like living quarters.
Group home residents have a right to be free to attend
religious services or activities of their choice. 22 CCR �
84072(c)(23). This would not be permitted due to the
supervision requirements for Operation COY participants.
Group home residents have a right to attend school and
participate in extracurricular, cultural, and personal
enrichment activities consistent with the child's age and
developmental level. 22 CCR � 84072(c)(25). Under this
bill, all participants will be required to attend the
program's on-base school, and will not have the option of
attending a school or classes in the community.
Group home residents are required to have bedrooms
sleeping no more than two children, with no bedroom
permitted to be used as a public or general passageway.
84087(b)(1), (5). DSS policy states that this requirement
"is the expected standard in order to provide children in
placement some degree of normalization and privacy in their
living environment." DSS Evaluator Manual � 84087. The
proposed program, however, would be configured as an "open
dormitory setting."
Children in group homes have the right to wear their own
clothes (22 CCR � 84072(c)(6)), and possess and use their
own personal items unless prohibited as part of a
discipline program (22 CCR � 84072(c)(9)). Those rights
would be restricted under the proposed program.
This bill would also limit DSS' access authority to access the
facility in some circumstances, and would exempt from
fingerprinting and criminal background checks various
individuals who would otherwise be required to obtain clearances
under the CCF Act, including adults responsible for
administration or direct supervision of staff; persons other
than the clients who may be residing in the facility; and
potentially other staff persons, volunteers, or employees who
have contact with the clients.
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The exemptions that would be authorized under this bill would
significantly change essential features of group homes and
significantly impact the participants in the program, abrogating
their individual rights and impacting their daily lives. It is
apparent that most of the exemptions from existing requirements
for group homes (including, visitor access, dormitory setting,
and other resident rights) are not programmatic-that is, not to
better address the needs of participants-but rather to
accommodate the siting of the program on a military
installation.
Exclusion of people with disabilities
This bill provides that, to participate in the program, a minor
"shall be assessed to determine whether he or she is physically
and psychologically suitable to participate in the program" and
that if "for any reason, the minor is found to be unsuitable for
placement in the program, or continuation in the program, he
shall be returned to the juvenile court for further
disposition." As the letter submitted on behalf of the sponsor
clarifies, this requirement is for purposes of excluding
children "who are either mentally or physically disabled."
While such screening may be appropriate for an athletic program,
it is not appropriate for a group home. The categorical
exclusion of minors with disabilities from a "group home" would
be contrary to the express right of children in group homes to
not be subjected to discrimination or harassment on the basis of
actual or perceived mental or physical disability. It would
also likely be found to violate prohibitions against
discrimination on the basis of disability in, for example, the
federal Americans with Disabilities Act.
Foster care funding
The intent of this bill would appear, at least in part, to be to
enable the program to qualify for foster care funding. A
child's placement is among the factors determining eligibility
for foster care funding, and licensed group homes are among the
eligible placements. E.g., W&I Code � 11402. It is not
assured, however, that the proposed program would be eligible
for federal Title IV-E foster care funding, which is not
available for licensed foster family homes or child-care
institutions that are "detention facilities, forestry camps,
training schools, or any other facility operated primarily for
the detention of children who are determined to be delinquent."
42 U.S.C. � 672(c).
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Lack of requirement to evaluate the pilot
While Operation COY is characterized as a pilot program, this
bill contains no provisions for evaluating the program to assess
outcomes (e.g., recidivism rates) and otherwise determine the
success of the program. Ten years is also a long period for a
pilot program, particularly one with no provision for evaluating
the program's effectiveness. By comparison, performance
agreement contracts (discussed above) permit 3-year contracts
with a possible 3-year extension. The performance agreement
contract statute also includes reporting requirements prior to
the end of the contract period. If this bill is passed by this
committee, it is recommended that provisions be added for one or
more independent evaluations of the program over the course of
the pilot, and a shortening of the pilot to a period of 3-to-5
years .
Opposition
In opposing this bill, the Youth Law Center (YLC) says that the
requested exemptions "pertain to critically important life and
safety issues." For example, YLC, asserts, this bill:
�G]ives unacceptable leeway to the program in
restricting access by inspectors, visitors, and
families. It allows the program unacceptable leeway
with respect to determining policies on meals,
clothing and supervision. These are issues that are
specifically regulated by State law, and the
Legislature should be wary of granting program
discretion in such fundamental areas of institutional
operation.
With respect to the potential access to federal foster care
funding, YLC says that "federal law prohibits the use of
IV-E foster care funding for these types of camps and
facilities that are operated primarily for delinquent
children." Finally, YLC notes that:
�T]he Legislature has previously stepped in to prevent
just this kind of circumvention of California
licensing requirements in out-of-state programs.
After a series of troubling reports of abusive,
inadequate conditions and at least one death, the
Legislature enacted Welfare and Institutions code
section 727.1, subdivision (c), requiring out-of-state
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placements to comply with California group home
requirements.
Possible alternative approaches :
Performance agreement contracts
Existing law authorizes counties to enter into performance
agreements with private, nonprofit agencies to encourage
innovation, develop services for children that are not available
in the community and promote change in the child welfare system.
W&I Code �� 18987.61-62; SB 933 (Thompson), Chapter 311,
Statutes of 1998. These agreements are limited to 3 years, with
the possibility of an additional 3-year period. In conjunction
with these contracts, DSS is authorized to waive regulations,
except those pertaining to health and safety, which govern
foster care payments or the operation of group homes to enable
counties to implement the agreements. The applicable provisions
also include county reporting requirements. To date, only one
program-Boys Republic, in San Bernardino County-operates under a
waiver based on this type of agreement. In developing these
agreements, counties and service providers must pursue services
that "enhance the ability of children to remain in the least
restrictive, most family-like setting possible and promote
services that address the needs and strengths of individual
children and their families. W&I Code � 18987.61(b). It is not
known whether the county has explored this option; however,
Operation COY, proposed for a military installation, may not
meet the criteria for such an agreement for reasons similar to
the reasons it has been unable to obtain exemptions through the
standard waiver process.
New licensing category
The minors who are the focus of this bill are currently served
in a variety of settings, including community-based licensed
group homes; facilities operated by the Department of
Corrections and Rehabilitation, Division of Juvenile Justice; or
county-operated programs, such as boot camps, ranch camps,
forestry camps, or other similar programs, which may not be
subject to licensing. The proposed pilot program is most
similar to the last category; however, unlike many of those
programs, because it would not be county-run, licensing would be
required.
Although it has since been amended, SB 1089 (Liu 2012), as
introduced, suggests an alternative approach to enable this
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bill's proposed program to operate. The introduced version of
SB 1089 would have modified the definition of "community care
facility" to include facilities for delinquent or at-risk youth,
other than those youths placed in a county-operated facility or
a facility operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities, and abused or
neglected children. It would also have added to the definition
of "residential facility" a "boot camp, ranch camp, forestry
camp, or similar facility other than those camps or facilities
operated by a county or the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities." Establishing
a new licensing category-rather than forcing this program into
the group home category-may be a more appropriate means of
regulating residential programs like Operation COY. This
approach would enable DSS to develop a more appropriate
regulatory scheme for such programs, rather than ignoring
essential features of an existing licensing category to enable
the program to operate.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
San Luis Obispo County Board of Supervisors (sponsor)
Opposition
Youth Law Center (YLC)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089