Bill Text: CA AB1001 | 2015-2016 | Regular Session | Chaptered
Bill Title: Child abuse: reporting: foster family agencies.
Spectrum: Moderate Partisan Bill (Republican 10-3)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State - Chapter 850, Statutes of 2016. [AB1001 Detail]
Download: California-2015-AB1001-Chaptered.html
BILL NUMBER: AB 1001 CHAPTERED
BILL TEXT
CHAPTER 850
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2016
APPROVED BY GOVERNOR SEPTEMBER 30, 2016
PASSED THE SENATE AUGUST 22, 2016
PASSED THE ASSEMBLY AUGUST 25, 2016
AMENDED IN SENATE AUGUST 18, 2016
AMENDED IN SENATE AUGUST 2, 2016
AMENDED IN SENATE MAY 11, 2016
AMENDED IN ASSEMBLY JANUARY 14, 2016
AMENDED IN ASSEMBLY JANUARY 4, 2016
INTRODUCED BY Assembly Member Maienschein
(Coauthors: Assembly Members Baker, Calderon, Chávez, Cooley,
Gallagher, Grove, Hadley, and Olsen)
(Coauthors: Senators Anderson, Bates, Cannella, and Runner)
FEBRUARY 26, 2015
An act to amend Section 1558 of, and to add Sections 1522.09 and
1556.5 to, the Health and Safety Code, and to amend Sections 11165.7
and 11166 of the Penal Code, relating to child abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 1001, Maienschein. Child abuse: reporting: foster family
agencies.
(1) The Child Abuse and Neglect Reporting Act requires a mandated
reporter, as defined and including an administrator or employee of a
public or private organization whose duties require direct contact
and supervision of children, to make a report to a specified agency
whenever the mandated reporter, in his or her professional capacity
or within the scope of his or her employment, has knowledge of or
observes a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. Under
existing law, the failure to make this report is a crime. Existing
law also prohibits a supervisor or administrator from impeding or
inhibiting the reporting duties, provides that a person making the
report shall not be subject to any sanctions for making the report,
and prohibits internal procedures to facilitate reporting from
requiring any employee required to make reports to disclose his or
her identity to the employer.
Existing law, the California Community Care Facilities Act (the
act), governs the licensing and regulation of community care
facilities, as defined, including foster family agencies for
children. Existing law vests responsibility for administering and
enforcing laws and regulations governing those facilities in the
State Department of Social Services. Existing law authorizes the
department to prohibit a person from being a member of the board of
directors, an executive director, or an officer of a licensee, or a
licensee from employing, or continuing the employment of, or allowing
in a licensed facility or certified family home, or allowing contact
with clients of a licensed facility or certified family home by, any
employee, prospective employee, or person who is not a client who
has committed various acts or has been denied an exemption to work or
to be present in a facility or certified family home, as specified.
This bill would expand the definition of mandated reporter to
include a board member of a public or private organization whose
duties require direct contact and supervision of children, including
a foster family agency. By imposing the reporting requirements on a
new class of persons, for whom failure to report specified conduct is
a crime, this bill would impose a state-mandated local program. The
bill would also require the department to develop a notice regarding
the reporting of complaints and would require the posting of that
notice in all foster family agencies, as specified. The bill would
require that if the department, as a condition of licensure, requires
the chief executive officer or other authorized member of the board
of directors and the administrator of a foster family agency to
attend an orientation given by the licensing agency that outlines the
applicable rules and regulations for operation of a foster family
agency, that orientation shall include a description of policies,
procedures, or practices that violate the provisions described above
governing mandated reporters. The bill would require the department
to take reasonable action, including, among other things, prohibiting
a person from being a member of the board of directors, upon a
finding of a violation of the provisions described above governing
mandated reporters.
(2) This bill would incorporate additional changes to Section
11165.7 of the Penal Code proposed by AB 1997 that would become
operative if this bill and AB 1997 are chaptered and this bill is
chaptered last.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522.09 is added to the Health and Safety Code,
to read:
1522.09. (a) The department shall, no later than July 1, 2017,
develop a notice that does all of the following:
(1) Contains the telephone number to make a complaint regarding a
community care facility or child care facility.
(2) Includes information about the prohibition of impeding
mandated reports.
(3) Includes information about the option to make a confidential
complaint.
(b) The notice developed pursuant to subdivision (a) shall be
posted conspicuously in a prominent area in all foster family
agencies.
SEC. 2. Section 1556.5 is added to the Health and Safety Code, to
read:
1556.5. (a) If the department, as a condition of licensure,
requires the chief executive officer or other authorized member of
the board of directors and the administrator of a foster family
agency to attend an orientation given by the licensing agency that
outlines the applicable rules and regulations for operation of a
foster family agency, that orientation shall include, but not be
limited to, a description of policies, procedures, or practices that
violate paragraph (1) or (2) of subdivision (i) of Section 11166 of
the Penal Code.
(b) If the department requires, as part of an application for
licensure for a foster family agency, a written plan of operation,
that plan of operation shall include a written plan establishing
policies, procedures, or practices to ensure that the foster family
agency does not violate paragraph (1) or (2) of subdivision (i) of
Section 11166 of the Penal Code.
(c) For purposes of this section, a foster family agency is
defined in paragraph (4) of subdivision (a) of Section 1502.
SEC. 3. Section 1558 of the Health and Safety Code is amended to
read:
1558. (a) The department may prohibit any person from being a
member of the board of directors, an executive director, or an
officer of a licensee, or a licensee from employing, or continuing
the employment of, or allowing in a licensed facility or certified
family home, or allowing contact with clients of a licensed facility
or certified family home by, any employee, prospective employee, or
person who is not a client who has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct that is inimical to the health, morals,
welfare, or safety of either the people of this state or an
individual in or receiving services from the facility or certified
family home.
(3) Been denied an exemption to work or to be present in a
facility or certified family home, when that person has been
convicted of a crime as defined in Section 1522.
(4) Engaged in any other conduct that would constitute a basis for
disciplining a licensee or certified family home.
(5) Engaged in acts of financial malfeasance concerning the
operation of a facility or certified family home, including, but not
limited to, improper use or embezzlement of client moneys and
property or fraudulent appropriation for personal gain of facility
moneys and property, or willful or negligent failure to provide
services.
(b) The excluded person, the facility or certified family home,
and the licensee shall be given written notice of the basis of the
department's action and of the excluded person's right to an appeal.
The notice shall be served either by personal service or by
registered mail. Within 15 days after the department serves the
notice, the excluded person may file with the department a written
appeal of the exclusion order. If the excluded person fails to file a
written appeal within the prescribed time, the department's action
shall be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility or certified
family home pending a final decision of the matter, when, in the
opinion of the director, the action is necessary to protect residents
or clients from physical or mental abuse, abandonment, or any other
substantial threat to their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer of a
licensee or exclusion of an employee, prospective employee, or person
who is not a client from a facility or certified family home, the
department shall serve an order of immediate exclusion upon the
excluded person that shall notify the excluded person of the basis of
the department's action and of the excluded person's right to a
hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written appeal of
the exclusion with the department. The department's action shall be
final if the excluded person does not appeal the exclusion within the
prescribed time. The department shall do the following upon receipt
of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense pursuant to
Section 11506 of the Government Code by the excluded person to
conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility or certified family home shall remain in effect until
the hearing is completed and the director has made a final
determination on the merits. However, the order of immediate
exclusion shall be deemed vacated if the director fails to make a
final determination on the merits within 60 days after the original
hearing has been completed.
(d) An excluded person who files a written appeal with the
department pursuant to this section shall, as part of the written
request, provide his or her current mailing address. The excluded
person shall subsequently notify the department in writing of any
change in mailing address, until the hearing process has been
completed or terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code. The standard of proof shall be
the preponderance of the evidence and the burden of proof shall be on
the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an executive
director, or an officer of a licensee or an employee, prospective
employee, or person who is not a client upon any ground provided by
this section. The department may enter an order prohibiting any
person from being a member of the board of directors, an executive
director, or an officer of a licensee or prohibiting the excluded
person's employment or presence in the facility or certified family
home, or otherwise take disciplinary action against the excluded
person, notwithstanding any resignation, withdrawal of employment
application, or change of duties by the excluded person, or any
discharge, failure to hire, or reassignment of the excluded person by
the licensee or that the excluded person no longer has contact with
clients at the facility or certified family home.
(g) A licensee's or certified family home's failure to comply with
the department's exclusion order after being notified of the order
shall be grounds for disciplining the licensee pursuant to Section
1550.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order, the person shall be prohibited from working in any
facility or being licensed to operate any facility licensed by the
department or from being a certified foster parent for the remainder
of the excluded person's life, unless otherwise ordered by the
department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section 11522 of
the Government Code. The department shall provide the excluded
person with a copy of Section 11522 of the Government Code with the
decision and order.
(2) (A) In cases where the department informed the excluded person
of his or her right to appeal the exclusion order and the excluded
person did not appeal the exclusion order, the person shall be
prohibited from working in any facility or being licensed to operate
any facility licensed by the department or a certified foster parent
for the remainder of the excluded person's life, unless otherwise
ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government Code. The
department shall provide the excluded person with a copy of Section
11522 of the Government Code with the exclusion order.
(i) Notwithstanding paragraph (2) of subdivision (a) or
subdivision (c) of Section 1550, the department shall take reasonable
action, including, but not limited to, prohibiting a person from
being a member of the board of directors, an executive director, or
an officer of a licensee of a licensed facility or certified family
home, or denying an application for, or suspending or revoking, a
license, special permit, certificate of approval, or administrator
certificate, issued under this chapter, or denying a transfer of a
license pursuant to paragraph (2) of subdivision (c) of Section 1524,
upon a finding of a violation of subdivision (i) of Section 11166 of
the Penal Code.
SEC. 4. Section 11165.7 of the Penal Code is amended to read:
11165.7. (a) As used in this article, "mandated reporter" is
defined as any of the following:
(1) A teacher.
(2) An instructional aide.
(3) A teacher's aide or teacher's assistant employed by a public
or private school.
(4) A classified employee of a public school.
(5) An administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of a public or
private school.
(6) An administrator of a public or private day camp.
(7) An administrator or employee of a public or private youth
center, youth recreation program, or youth organization.
(8) An administrator, board member, or employee of a public or
private organization whose duties require direct contact and
supervision of children, including a foster family agency.
(9) An employee of a county office of education or the State
Department of Education whose duties bring the employee into contact
with children on a regular basis.
(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.
(11) A Head Start program teacher.
(12) A licensing worker or licensing evaluator employed by a
licensing agency, as defined in Section 11165.11.
(13) A public assistance worker.
(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.
(15) A social worker, probation officer, or parole officer.
(16) An employee of a school district police or security
department.
(17) A person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in a public or private
school.
(18) A district attorney investigator, inspector, or local child
support agency caseworker, unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to Section
317 of the Welfare and Institutions Code to represent a minor.
(19) A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, who is not otherwise described in
this section.
(20) A firefighter, except for volunteer firefighters.
(21) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage and family therapist, clinical
social worker, professional clinical counselor, or any other person
who is currently licensed under Division 2 (commencing with Section
500) of the Business and Professions Code.
(22) An emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(23) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(24) A marriage and family therapist trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(25) An unlicensed marriage and family therapist intern registered
under Section 4980.44 of the Business and Professions Code.
(26) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(27) A coroner.
(28) A medical examiner or other person who performs autopsies.
(29) A commercial film and photographic print or image processor
as specified in subdivision (e) of Section 11166. As used in this
article, "commercial film and photographic print or image processor"
means a person who develops exposed photographic film into negatives,
slides, or prints, or who makes prints from negatives or slides, or
who prepares, publishes, produces, develops, duplicates, or prints
any representation of information, data, or an image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image, for
compensation. The term includes any employee of that person; it does
not include a person who develops film or makes prints or images for
a public agency.
(30) A child visitation monitor. As used in this article, "child
visitation monitor" means a person who, for financial compensation,
acts as a monitor of a visit between a child and another person when
the monitoring of that visit has been ordered by a court of law.
(31) An animal control officer or humane society officer. For the
purposes of this article, the following terms have the following
meanings:
(A) "Animal control officer" means a person employed by a city,
county, or city and county for the purpose of enforcing animal
control laws or regulations.
(B) "Humane society officer" means a person appointed or employed
by a public or private entity as a humane officer who is qualified
pursuant to Section 14502 or 14503 of the Corporations Code.
(32) A clergy member, as specified in subdivision (d) of Section
11166. As used in this article, "clergy member" means a priest,
minister, rabbi, religious practitioner, or similar functionary of a
church, temple, or recognized denomination or organization.
(33) Any custodian of records of a clergy member, as specified in
this section and subdivision (d) of Section 11166.
(34) An employee of any police department, county sheriff's
department, county probation department, or county welfare
department.
(35) An employee or volunteer of a Court Appointed Special
Advocate program, as defined in Rule 5.655 of the California Rules of
Court.
(36) A custodial officer, as defined in Section 831.5.
(37) A person providing services to a minor child under Section
12300 or 12300.1 of the Welfare and Institutions Code.
(38) An alcohol and drug counselor. As used in this article, an
"alcohol and drug counselor" is a person providing counseling,
therapy, or other clinical services for a state licensed or certified
drug, alcohol, or drug and alcohol treatment program. However,
alcohol or drug abuse, or both alcohol and drug abuse, is not, in and
of itself, a sufficient basis for reporting child abuse or neglect.
(39) A clinical counselor trainee, as defined in subdivision (g)
of Section 4999.12 of the Business and Professions Code.
(40) A clinical counselor intern registered under Section 4999.42
of the Business and Professions Code.
(41) An employee or administrator of a public or private
postsecondary educational institution, whose duties bring the
administrator or employee into contact with children on a regular
basis, or who supervises those whose duties bring the administrator
or employee into contact with children on a regular basis, as to
child abuse or neglect occurring on that institution's premises or at
an official activity of, or program conducted by, the institution.
Nothing in this paragraph shall be construed as altering the
lawyer-client privilege as set forth in Article 3 (commencing with
Section 950) of Chapter 4 of Division 8 of the Evidence Code.
(42) An athletic coach, athletic administrator, or athletic
director employed by any public or private school that provides any
combination of instruction for kindergarten, or grades 1 to 12,
inclusive.
(43) (A) A commercial computer technician as specified in
subdivision (e) of Section 11166. As used in this article,
"commercial computer technician" means a person who works for a
company that is in the business of repairing, installing, or
otherwise servicing a computer or computer component, including, but
not limited to, a computer part, device, memory storage or recording
mechanism, auxiliary storage recording or memory capacity, or any
other material relating to the operation and maintenance of a
computer or computer network system, for a fee. An employer who
provides an electronic communications service or a remote computing
service to the public shall be deemed to comply with this article if
that employer complies with Section 2258A of Title 18 of the United
States Code.
(B) An employer of a commercial computer technician may implement
internal procedures for facilitating reporting consistent with this
article. These procedures may direct employees who are mandated
reporters under this paragraph to report materials described in
subdivision (e) of Section 11166 to an employee who is designated by
the employer to receive the reports. An employee who is designated to
receive reports under this subparagraph shall be a commercial
computer technician for purposes of this article. A commercial
computer technician who makes a report to the designated employee
pursuant to this subparagraph shall be deemed to have complied with
the requirements of this article and shall be subject to the
protections afforded to mandated reporters, including, but not
limited to, those protections afforded by Section 11172.
(44) Any athletic coach, including, but not limited to, an
assistant coach or a graduate assistant involved in coaching, at
public or private postsecondary educational institutions.
(b) Except as provided in paragraph (35) of subdivision (a),
volunteers of public or private organizations whose duties require
direct contact with and supervision of children are not mandated
reporters but are encouraged to obtain training in the identification
and reporting of child abuse and neglect and are further encouraged
to report known or suspected instances of child abuse or neglect to
an agency specified in Section 11165.9.
(c) Except as provided in subdivision (d), employers are strongly
encouraged to provide their employees who are mandated reporters with
training in the duties imposed by this article. This training shall
include training in child abuse and neglect identification and
training in child abuse and neglect reporting. Whether or not
employers provide their employees with training in child abuse and
neglect identification and reporting, the employers shall provide
their employees who are mandated reporters with the statement
required pursuant to subdivision (a) of Section 11166.5.
(d) Pursuant to Section 44691 of the Education Code, school
districts, county offices of education, state special schools and
diagnostic centers operated by the State Department of Education, and
charter schools shall annually train their employees and persons
working on their behalf specified in subdivision (a) in the duties of
mandated reporters under the child abuse reporting laws. The
training shall include, but not necessarily be limited to, training
in child abuse and neglect identification and child abuse and neglect
reporting.
(e) (1) On and after January 1, 2018, pursuant to Section
1596.8662 of the Health and Safety Code, a child care licensee
applicant shall take training in the duties of mandated reporters
under the child abuse reporting laws as a condition of licensure, and
a child care administrator or an employee of a licensed child day
care facility shall take training in the duties of mandated reporters
during the first 90 days when he or she is employed by the facility.
(2) A person specified in paragraph (1) who becomes a licensee,
administrator, or employee of a licensed child day care facility
shall take renewal mandated reporter training every two years
following the date on which he or she completed the initial mandated
reporter training. The training shall include, but not necessarily be
limited to, training in child abuse and neglect identification and
child abuse and neglect reporting.
(f) Unless otherwise specifically provided, the absence of
training shall not excuse a mandated reporter from the duties imposed
by this article.
(g) Public and private organizations are encouraged to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification and
reporting of child abuse and neglect.
SEC. 4.5. Section 11165.7 of the Penal Code is amended to read:
11165.7. (a) As used in this article, "mandated reporter" is
defined as any of the following:
(1) A teacher.
(2) An instructional aide.
(3) A teacher's aide or teacher's assistant employed by a public
or private school.
(4) A classified employee of a public school.
(5) An administrative officer or supervisor of child welfare and
attendance, or a certificated pupil personnel employee of a public or
private school.
(6) An administrator of a public or private day camp.
(7) An administrator or employee of a public or private youth
center, youth recreation program, or youth organization.
(8) An administrator, board member, or employee of a public or
private organization whose duties require direct contact and
supervision of children, including a foster family agency.
(9) An employee of a county office of education or the State
Department of Education whose duties bring the employee into contact
with children on a regular basis.
(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.
(11) A Head Start program teacher.
(12) A licensing worker or licensing evaluator employed by a
licensing agency, as defined in Section 11165.11.
(13) A public assistance worker.
(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.
(15) A social worker, probation officer, or parole officer.
(16) An employee of a school district police or security
department.
(17) A person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in a public or private
school.
(18) A district attorney investigator, inspector, or local child
support agency caseworker, unless the investigator, inspector, or
caseworker is working with an attorney appointed pursuant to Section
317 of the Welfare and Institutions Code to represent a minor.
(19) A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, who is not otherwise described in
this section.
(20) A firefighter, except for volunteer firefighters.
(21) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage and family therapist, clinical
social worker, professional clinical counselor, or any other person
who is currently licensed under Division 2 (commencing with Section
500) of the Business and Professions Code.
(22) An emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(23) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(24) A marriage and family therapist trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(25) An unlicensed marriage and family therapist intern registered
under Section 4980.44 of the Business and Professions Code.
(26) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(27) A coroner.
(28) A medical examiner or other person who performs autopsies.
(29) A commercial film and photographic print or image processor
as specified in subdivision (e) of Section 11166. As used in this
article, "commercial film and photographic print or image processor"
means a person who develops exposed photographic film into negatives,
slides, or prints, or who makes prints from negatives or slides, or
who prepares, publishes, produces, develops, duplicates, or prints
any representation of information, data, or an image, including, but
not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer
software, computer floppy disk, data storage medium, CD-ROM,
computer-generated equipment, or computer-generated image, for
compensation. The term includes any employee of that person; it does
not include a person who develops film or makes prints or images for
a public agency.
(30) A child visitation monitor. As used in this article, "child
visitation monitor" means a person who, for financial compensation,
acts as a monitor of a visit between a child and another person when
the monitoring of that visit has been ordered by a court of law.
(31) An animal control officer or humane society officer. For the
purposes of this article, the following terms have the following
meanings:
(A) "Animal control officer" means a person employed by a city,
county, or city and county for the purpose of enforcing animal
control laws or regulations.
(B) "Humane society officer" means a person appointed or employed
by a public or private entity as a humane officer who is qualified
pursuant to Section 14502 or 14503 of the Corporations Code.
(32) A clergy member, as specified in subdivision (d) of
Section 11166. As used in this article, "clergy member" means a
priest, minister, rabbi, religious practitioner, or similar
functionary of a church, temple, or recognized denomination or
organization.
(33) Any custodian of records of a clergy member, as specified in
this section and subdivision (d) of Section 11166.
(34) An employee of any police department, county sheriff's
department, county probation department, or county welfare
department.
(35) An employee or volunteer of a Court Appointed Special
Advocate program, as defined in Rule 5.655 of the California Rules of
Court.
(36) A custodial officer, as defined in Section 831.5.
(37) A person providing services to a minor child under Section
12300 or 12300.1 of the Welfare and Institutions Code.
(38) An alcohol and drug counselor. As used in this article, an
"alcohol and drug counselor" is a person providing counseling,
therapy, or other clinical services for a state licensed or certified
drug, alcohol, or drug and alcohol treatment program. However,
alcohol or drug abuse, or both alcohol and drug abuse, is not, in and
of itself, a sufficient basis for reporting child abuse or neglect.
(39) A clinical counselor trainee, as defined in subdivision (g)
of Section 4999.12 of the Business and Professions Code.
(40) A clinical counselor intern registered under Section 4999.42
of the Business and Professions Code.
(41) An employee or administrator of a public or private
postsecondary educational institution, whose duties bring the
administrator or employee into contact with children on a regular
basis, or who supervises those whose duties bring the administrator
or employee into contact with children on a regular basis, as to
child abuse or neglect occurring on that institution's premises or at
an official activity of, or program conducted by, the institution.
Nothing in this paragraph shall be construed as altering the
lawyer-client privilege as set forth in Article 3 (commencing with
Section 950) of Chapter 4 of Division 8 of the Evidence Code.
(42) An athletic coach, athletic administrator, or athletic
director employed by any public or private school that provides any
combination of instruction for kindergarten, or grades 1 to 12,
inclusive.
(43) (A) A commercial computer technician as specified in
subdivision (e) of Section 11166. As used in this article,
"commercial computer technician" means a person who works for a
company that is in the business of repairing, installing, or
otherwise servicing a computer or computer component, including, but
not limited to, a computer part, device, memory storage or recording
mechanism, auxiliary storage recording or memory capacity, or any
other material relating to the operation and maintenance of a
computer or computer network system, for a fee. An employer who
provides an electronic communications service or a remote computing
service to the public shall be deemed to comply with this article if
that employer complies with Section 2258A of Title 18 of the United
States Code.
(B) An employer of a commercial computer technician may implement
internal procedures for facilitating reporting consistent with this
article. These procedures may direct employees who are mandated
reporters under this paragraph to report materials described in
subdivision (e) of Section 11166 to an employee who is designated by
the employer to receive the reports. An employee who is designated to
receive reports under this subparagraph shall be a commercial
computer technician for purposes of this article. A commercial
computer technician who makes a report to the designated employee
pursuant to this subparagraph shall be deemed to have complied with
the requirements of this article and shall be subject to the
protections afforded to mandated reporters, including, but not
limited to, those protections afforded by Section 11172.
(44) Any athletic coach, including, but not limited to, an
assistant coach or a graduate assistant involved in coaching, at
public or private postsecondary educational institutions.
(45) An individual certified by a licensed foster family agency as
a certified family home, as defined in Section 1506 of the Health
and Safety Code.
(46) An individual approved as a resource family, as defined in
Section 1517 of the Health and Safety Code and Section 16519.5 of the
Welfare and Institutions Code.
(b) Except as provided in paragraph (35) of subdivision (a),
volunteers of public or private organizations whose duties require
direct contact with and supervision of children are not mandated
reporters but are encouraged to obtain training in the identification
and reporting of child abuse and neglect and are further encouraged
to report known or suspected instances of child abuse or neglect to
an agency specified in Section 11165.9.
(c) Except as provided in subdivision (d), employers are strongly
encouraged to provide their employees who are mandated reporters with
training in the duties imposed by this article. This training shall
include training in child abuse and neglect identification and
training in child abuse and neglect reporting. Whether or not
employers provide their employees with training in child abuse and
neglect identification and reporting, the employers shall provide
their employees who are mandated reporters with the statement
required pursuant to subdivision (a) of Section 11166.5.
(d) Pursuant to Section 44691 of the Education Code, school
districts, county offices of education, state special schools and
diagnostic centers operated by the State Department of Education, and
charter schools shall annually train their employees and persons
working on their behalf specified in subdivision (a) in the duties of
mandated reporters under the child abuse reporting laws. The
training shall include, but not necessarily be limited to, training
in child abuse and neglect identification and child abuse and neglect
reporting.
(e) (1) On and after January 1, 2018, pursuant to Section
1596.8662 of the Health and Safety Code, a child care licensee
applicant shall take training in the duties of mandated reporters
under the child abuse reporting laws as a condition of licensure, and
a child care administrator or an employee of a licensed child day
care facility shall take training in the duties of mandated reporters
during the first 90 days when he or she is employed by the facility.
(2) A person specified in paragraph (1) who becomes a licensee,
administrator, or employee of a licensed child day care facility
shall take renewal mandated reporter training every two years
following the date on which he or she completed the initial mandated
reporter training. The training shall include, but not necessarily be
limited to, training in child abuse and neglect identification and
child abuse and neglect reporting.
(f) Unless otherwise specifically provided, the absence of
training shall not excuse a mandated reporter from the duties imposed
by this article.
(g) Public and private organizations are encouraged to provide
their volunteers whose duties require direct contact with and
supervision of children with training in the identification and
reporting of child abuse and neglect.
SEC. 5. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (d), and in Section
11166.05, a mandated reporter shall make a report to an agency
specified in Section 11165.9 whenever the mandated reporter, in his
or her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child whom the mandated
reporter knows or reasonably suspects has been the victim of child
abuse or neglect. The mandated reporter shall make an initial report
by telephone to the agency immediately or as soon as is practicably
possible, and shall prepare and send, fax, or electronically transmit
a written followup report within 36 hours of receiving the
information concerning the incident. The mandated reporter may
include with the report any nonprivileged documentary evidence the
mandated reporter possesses relating to the incident.
(1) For purposes of this article, "reasonable suspicion" means
that it is objectively reasonable for a person to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing, when appropriate, on his or her training and
experience, to suspect child abuse or neglect. "Reasonable suspicion"
does not require certainty that child abuse or neglect has occurred
nor does it require a specific medical indication of child abuse or
neglect; any "reasonable suspicion" is sufficient. For purposes of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The agency shall be notified and a report shall be prepared
and sent, faxed, or electronically transmitted even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death, and even if suspected child abuse was
discovered during an autopsy.
(3) A report made by a mandated reporter pursuant to this section
shall be known as a mandated report.
(b) 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 followup 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
followup report.
(1) 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 followup report. In addition, 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. The reason for the submission of the
one-time automated written report in lieu of the procedure prescribed
in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department shall work
with stakeholders to modify reporting forms and the CWS/CMS as is
necessary to accommodate the changes enacted by these provisions.
(2) This subdivision shall not become operative until the CWS/CMS
is updated to capture the information prescribed in this subdivision.
(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009, whichever
occurs first.
(4) On the inoperative date of these provisions, a report shall be
submitted to the counties and the Legislature by the State
Department of Social Services 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.
(5) Nothing in this section 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.
(c) A mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(d) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to subdivision (a). For the purposes of
this subdivision, "penitential communication" means a communication,
intended to be in confidence, including, but not limited to, a
sacramental confession, made to a clergy member who, in the course of
the discipline or practice of his or her church, denomination, or
organization, is authorized or accustomed to hear those
communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse and that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(e) (1) A commercial film, photographic print, or image processor
who has knowledge of or observes, within the scope of his or her
professional capacity or employment, any film, photograph, videotape,
negative, slide, or any representation of information, data, or an
image, including, but not limited to, any film, filmstrip,
photograph, negative, slide, photocopy, videotape, video laser disc,
computer hardware, computer software, computer floppy disk, data
storage medium, CD-ROM, computer-generated equipment, or
computer-generated image depicting a child under 16 years of age
engaged in an act of sexual conduct, shall, immediately or as soon as
practicably possible, telephonically report the instance of
suspected abuse to the law enforcement agency located in the county
in which the images are seen. Within 36 hours of receiving the
information concerning the incident, the reporter shall prepare and
send, fax, or electronically transmit a written followup report of
the incident with a copy of the image or material attached.
(2) A commercial computer technician who has knowledge of or
observes, within the scope of his or her professional capacity or
employment, any representation of information, data, or an image,
including, but not limited to, any computer hardware, computer
software, computer file, computer floppy disk, data storage medium,
CD-ROM, computer-generated equipment, or computer-generated image
that is retrievable in perceivable form and that is intentionally
saved, transmitted, or organized on an electronic medium, depicting a
child under 16 years of age engaged in an act of sexual conduct,
shall immediately, or as soon as practicably possible, telephonically
report the instance of suspected abuse to the law enforcement agency
located in the county in which the images or materials are seen. As
soon as practicably possible after receiving the information
concerning the incident, the reporter shall prepare and send, fax, or
electronically transmit a written followup report of the incident
with a brief description of the images or materials.
(3) For purposes of this article, "commercial computer technician"
includes an employee designated by an employer to receive reports
pursuant to an established reporting process authorized by
subparagraph (B) of paragraph (43) of subdivision (a) of Section
11165.7.
(4) As used in this subdivision, "electronic medium" includes, but
is not limited to, a recording, CD-ROM, magnetic disk memory,
magnetic tape memory, CD, DVD, thumbdrive, or any other computer
hardware or media.
(5) As used in this subdivision, "sexual conduct" means any of the
following:
(A) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(B) Penetration of the vagina or rectum by any object.
(C) Masturbation for the purpose of sexual stimulation of the
viewer.
(D) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(E) Exhibition of the genitals, pubic, or rectal areas of a person
for the purpose of sexual stimulation of the viewer.
(f) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(g) Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child
abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9. For
purposes of this section, "any other person" includes a mandated
reporter who acts in his or her private capacity and not in his or
her professional capacity or within the scope of his or her
employment.
(h) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(i) (1) The reporting duties under this section are individual,
and no supervisor or administrator may impede or inhibit the
reporting duties, and no person making a report shall be subject to
any sanction for making the report. However, internal procedures to
facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article. An internal policy shall not direct an employee to
allow his or her supervisor to file or process a mandated report
under any circumstances.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(j) (1) A county probation or welfare department shall
immediately, or as soon as practicably possible, report by telephone,
fax, or electronic transmission to the law enforcement agency having
jurisdiction over the case, to the agency given the responsibility
for investigation of cases under Section 300 of the Welfare and
Institutions Code, and to the district attorney's office every known
or suspected instance of child abuse or neglect, as defined in
Section 11165.6, except acts or omissions coming within subdivision
(b) of Section 11165.2, or reports made pursuant to Section 11165.13
based on risk to a child that relates solely to the inability of the
parent to provide the child with regular care due to the parent's
substance abuse, which shall be reported only to the county welfare
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(2) A county probation or welfare department shall immediately,
and in no case in more than 24 hours, report to the law enforcement
agency having jurisdiction over the case after receiving information
that a child or youth who is receiving child welfare services has
been identified as the victim of commercial sexual exploitation, as
defined in subdivision (d) of Section 11165.1.
(3) When a child or youth who is receiving child welfare services
and who is reasonably believed to be the victim of, or is at risk of
being the victim of, commercial sexual exploitation, as defined in
Section 11165.1, is missing or has been abducted, the county
probation or welfare department shall immediately, or in no case
later than 24 hours from receipt of the information, report the
incident to the appropriate law enforcement authority for entry into
the National Crime Information Center database of the Federal Bureau
of Investigation and to the National Center for Missing and Exploited
Children.
(k) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone, fax, or electronic
transmission to the agency given responsibility for investigation of
cases under Section 300 of the Welfare and Institutions Code and to
the district attorney's office every known or suspected instance of
child abuse or neglect reported to it, except acts or omissions
coming within subdivision (b) of Section 11165.2, which shall be
reported only to the county welfare or probation department. A law
enforcement agency shall report to the county welfare or probation
department every known or suspected instance of child abuse or
neglect reported to it which is alleged to have occurred as a result
of the action of a person responsible for the child's welfare, or as
the result of the failure of a person responsible for the child's
welfare to adequately protect the minor from abuse when the person
responsible for the child's welfare knew or reasonably should have
known that the minor was in danger of abuse. A law enforcement agency
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
SEC. 6. Section 4.5 of this bill incorporates amendments to
Section 11165.7 of the Penal Code proposed by both this bill and
Assembly Bill 1997. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2017, (2)
each bill amends Section 11165.7 of the Penal Code, and (3) this bill
is enacted after Assembly Bill 1997, in which case Section 4 of this
bill shall not become operative.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
