Bill Text: NY S04790 | 2009-2010 | General Assembly | Amended
Bill Title: Establishes the office of child advocate to ensure the protection and promotion of legal rights for youth in programs and facilities under OCFS.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-01-06 - REFERRED TO CHILDREN AND FAMILIES [S04790 Detail]
Download: New_York-2009-S04790-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4790--A
2009-2010 Regular Sessions
I N S E N A T E
April 27, 2009
___________
Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and
when printed to be committed to the Committee on Children and Families
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the executive law, in relation to the establishment of
the office of the child advocate
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The executive law is amended by adding a new article 19-I
2 to read as follows:
3 ARTICLE 19-I
4 OFFICE OF THE CHILD ADVOCATE
5 SECTION 533. OFFICE OF THE CHILD ADVOCATE; CREATION.
6 534. DEFINITIONS.
7 535. THE CHILD ADVOCATE.
8 536. DUTIES OF THE CHILD ADVOCATE.
9 537. POWERS OF THE OFFICE OF THE CHILD ADVOCATE.
10 538. DUTY TO MAINTAIN CONFIDENTIALITY.
11 539. ADDITIONAL PROVISIONS.
12 S 533. OFFICE OF THE CHILD ADVOCATE; CREATION. THERE IS HEREBY CREATED
13 IN THE EXECUTIVE DEPARTMENT, AN OFFICE OF THE CHILD ADVOCATE, WHICH
14 SHALL:
15 1. EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR AND THE LEGISLATURE
16 ON:
17 (A) SYSTEMIC ISSUES IN PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE OFFICE
18 OF CHILDREN AND FAMILY SERVICES; AND
19 (B) MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY OR GUAR-
20 DIANSHIP OF THE OFFICE OF CHILDREN AND FAMILY SERVICES OR LOCAL SOCIAL
21 SERVICES DISTRICTS, AND THE FAMILY OF SUCH CHILDREN, EXPERIENCE IN
22 ACCESSING NEEDED SERVICES ACROSS SYSTEMS; AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06023-03-9
S. 4790--A 2
1 2. ADVOCATE FOR, AND REPORT TO THE GOVERNOR AND THE LEGISLATURE ON
2 SUGGESTED STATUTORY, REGULATORY OR POLICY CHANGES AIMED AT IMPROVING
3 OUTCOMES AND SERVICES FOR CHILDREN AND FAMILIES IN NEW YORK STATE.
4 S 534. DEFINITIONS. AS USED IN THIS ARTICLE:
5 1. "CHILD" OR "CHILDREN" MEANS:
6 (A) A PERSON, OR PERSONS UNDER THE AGE OF EIGHTEEN;
7 (B) A PERSON OR PERSONS UNDER THE AGE OF TWENTY-ONE WHO HAS BEEN
8 PLACED INTO THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE OF CHILDREN
9 AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT, PURSUANT TO
10 ARTICLE THREE, SEVEN, OR TEN OF THE FAMILY COURT ACT, OR SECTIONS THREE
11 HUNDRED FIFTY-EIGHT-A, THREE HUNDRED EIGHTY-THREE-C, THREE HUNDRED
12 EIGHTY-FOUR-A OR THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW;
13 OR
14 (C) A PERSON OR PERSONS UNDER THE AGE OF TWENTY-ONE WHO IS PLACED IN
15 RESIDENTIAL CARE AS DEFINED IN SUBDIVISION FOUR OF SECTION FOUR HUNDRED
16 TWELVE-A OF THE SOCIAL SERVICES LAW.
17 2. "CHILD ADVOCATE" MEANS THE PERSON APPOINTED PURSUANT TO SUBDIVISION
18 ONE OF SECTION FIVE HUNDRED THIRTY-FIVE OF THIS ARTICLE TO DIRECT AND
19 OVERSEE THE ACTIVITIES OF THE OFFICE OF THE CHILD ADVOCATE.
20 S 535. THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL BE AN INDIVID-
21 UAL WITH AT LEAST FIVE YEARS EXPERIENCE IN THE GENERAL SUBJECT AREA OF
22 EITHER CHILD WELFARE, JUVENILE JUSTICE OR CHILDHOOD BEHAVIORAL HEALTH,
23 WHO SHALL BE APPOINTED BY THE GOVERNOR UPON THE ADVICE AND CONSENT OF
24 THE SENATE FOR A TERM OF FIVE YEARS. THE CHILD ADVOCATE SHALL CONTINUE
25 TO HOLD SUCH POSITION UNTIL HIS OR HER SUCCESSOR IS APPOINTED, BUT MAY
26 BE REMOVED FROM HIS OR HER POSITION IF THE GOVERNOR SHALL DETERMINE THAT
27 SUCH CHILD ADVOCATE HAS ABUSED HIS OR HER RIGHTS, POWERS, OR DUTIES
28 ESTABLISHED PURSUANT TO THIS ARTICLE OR THAT HE OR SHE HAS WILLFULLY
29 FAILED TO CARRY OUT THE DUTIES REQUIRED BY THIS ARTICLE. THE CHILD ADVO-
30 CATE SHALL REPORT TO THE GOVERNOR, WHO SHALL FIX THE COMPENSATION OF THE
31 CHILD ADVOCATE WITHIN AMOUNTS APPROPRIATED THEREFOR.
32 2. THE CHILD ADVOCATE MAY HIRE OR APPOINT PERSONS AS MAY BE DEEMED
33 NECESSARY TO CARRY OUT THE DUTIES OF THE OFFICE OF THE CHILD ADVOCATE.
34 THE DUTIES OF PERSONS EMPLOYED OR APPOINTED BY THE CHILD ADVOCATE SHALL
35 BE PERFORMED UNDER THE ADVICE AND SUPERVISION OF THE CHILD ADVOCATE.
36 PERSONS EMPLOYED OR APPOINTED BY THE OFFICE OF THE CHILD ADVOCATE SHALL
37 BE INDIVIDUALS WITH EXPERTISE IN THE AREAS OF CHILD WELFARE, JUVENILE
38 JUSTICE, CHILDHOOD BEHAVIORAL HEALTH, FOSTER CARE, PREVENTIVE SERVICES,
39 OR CHILD CARE, AS EVIDENCED BY EXPERTISE IN THE FIELD, PRACTICE, ADVOCA-
40 CY OR BY ACADEMIC BACKGROUND, THE LEVEL AND SUFFICIENCY OF WHICH SHALL
41 BE DETERMINED BY THE CHILD ADVOCATE. THE CHILD ADVOCATE SHALL FIX THE
42 COMPENSATION OF PERSONS EMPLOYED OR APPOINTED BY THE OFFICE OF THE CHILD
43 ADVOCATE WITHIN AMOUNTS APPROPRIATED THEREFOR.
44 S 536. DUTIES OF THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL:
45 (A) EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR AND THE LEGISLATURE
46 ON SYSTEMIC ISSUES IN PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE OFFICE OF
47 CHILDREN AND FAMILY SERVICES AND LOCAL SOCIAL SERVICES DISTRICTS,
48 INCLUDING BUT NOT LIMITED TO, CHILD WELFARE, JUVENILE JUSTICE, FOSTER
49 CARE, CHILD PROTECTIVE, CHILD CARE AND PREVENTIVE SERVICES;
50 (B) EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR AND THE LEGISLATURE
51 ON MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY OR GUARDIAN-
52 SHIP OF THE OFFICE OF CHILDREN AND FAMILY SERVICES OR LOCAL SOCIAL
53 SERVICES DISTRICTS, FAMILIES OF CHILDREN, EXPERIENCE IN ACCESSING NEEDED
54 SERVICES ACROSS SYSTEMS;
55 (C) MONITOR THE IMPLEMENTATION OF THE POLICIES, REGULATIONS AND STAT-
56 UTES OF STATE AGENCIES WHICH MAY BE APPLICABLE TO THE LEGAL RIGHTS OF
S. 4790--A 3
1 CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE OF CHILDREN
2 AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT, OR THE FAMILY
3 OF SUCH CHILDREN;
4 (D) MONITOR THE IMPLEMENTATION OF POLICIES, REGULATIONS AND STATUTES
5 WHICH MAY HAVE AN IMPACT ON PUBLICLY FUNDED PROGRAMS OVERSEEN BY THE
6 OFFICE OF CHILDREN AND FAMILY SERVICES, INCLUDING BUT NOT LIMITED TO,
7 CHILD WELFARE, JUVENILE JUSTICE, FOSTER CARE, CHILD PROTECTIVE, CHILD
8 CARE AND PREVENTIVE SERVICES; AND
9 (E) RECOMMEND CHANGES IN STATE POLICIES, STATUTES AND REGULATIONS
10 CONCERNING CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE
11 OF CHILDREN AND FAMILY SERVICES OR LOCAL SOCIAL SERVICES DISTRICTS AND
12 THE FAMILIES OF SUCH CHILDREN; AND
13 (F) RECOMMEND CHANGES IN STATE POLICIES, STATUTES, AND REGULATIONS
14 CONCERNING PUBLICLY FUNDED PROGRAMS THAT SERVICE CHILDREN AND FAMILIES
15 INCLUDING, JUVENILE JUSTICE, FOSTER CARE, CHILD CARE, CHILD WELFARE
16 PROGRAMS, AND PREVENTIVE SERVICES, ADMINISTERED BY THE OFFICE OF CHIL-
17 DREN AND FAMILY SERVICES OR LOCAL SOCIAL SERVICES DISTRICTS;
18 (G) TAKE APPROPRIATE ACTIONS AIMED AT PROMOTION OF THE RIGHTS, SAFETY,
19 WELL-BEING, AND BEST INTEREST OF CHILDREN IN NEW YORK STATE, INCLUDING,
20 BUT NOT LIMITED TO, UNDERTAKING LEGISLATIVE ADVOCACY, CONDUCTING PUBLIC
21 HEARINGS AND MAKING PROPOSALS FOR ADMINISTRATIVE OR SYSTEMIC REFORM;
22 (H) PROVIDE ADMINISTRATIVE SUPERVISION AND OVERSIGHT TO THE OFFICE OF
23 THE CHILD ADVOCATE AND DEVOTE FULL-TIME TO THE DUTIES OF HIS OR HER
24 OFFICE; AND
25 (I) REPORT TO THE GOVERNOR AND THE LEGISLATURE AS NEEDED, BUT NOT LESS
26 THAN TWICE PER YEAR. SUCH REPORT SHALL INCLUDE BUT NOT BE LIMITED TO:
27 (A) INFORMATION CONCERNING THE NUMBER AND TYPES OF REVIEWS OR EVALU-
28 ATION CONDUCTED BY THE OFFICE OF THE CHILD ADVOCATE; AND
29 (B) ANY RECOMMENDATIONS BY THE CHILD ADVOCATE FOR LEGISLATIVE, REGULA-
30 TORY, OR PUBLIC POLICY CHANGES.
31 2. IF AFTER EXAMINATION PURSUANT TO SUBDIVISION ONE OF THIS SECTION,
32 THE CHILD ADVOCATE IDENTIFIES A SYSTEMIC PROBLEM IN HOW SERVICES ARE
33 PROVIDED TO CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP OF THE OFFICE
34 OF CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES DISTRICT, BY
35 THE OFFICE OF CHILDREN AND FAMILY SERVICES, OR A LOCAL SOCIAL SERVICES
36 DISTRICT, OR ANY PUBLIC OR PRIVATE ENTITY WHICH CONTRACTS WITH THE
37 OFFICE OF CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES
38 DISTRICT TO PROVIDE SERVICES TO SUCH CHILDREN, THE CHILD ADVOCATE SHALL
39 PROVIDE SUCH OFFICE, DISTRICT, AGENCY OR ENTITY A WRITTEN REPORT OUTLIN-
40 ING THE FINDINGS AND RECOMMENDATIONS OF THE CHILD ADVOCATE.
41 (A) AN OFFICE, DISTRICT, AGENCY OR ENTITY NAMED IN A REPORT BY THE
42 CHILD ADVOCATE AS DESCRIBED IN THIS SUBDIVISION SHALL HAVE THE OPTION TO
43 RESPOND IN WRITING TO THE CHILD ADVOCATE'S FINDINGS, PROVIDED HOWEVER
44 THAT SUCH WRITTEN RESPONSE MUST BE ISSUED WITHIN NINETY DAYS OF SUCH
45 OFFICE, DISTRICT, AGENCY OR ENTITY'S RECEIPT OF THE APPLICABLE REPORT BY
46 THE CHILD ADVOCATE.
47 (B) WITHIN THIRTY DAYS AFTER THE RECEIPT OF A RESPONSE FROM AN OFFICE,
48 DISTRICT, AGENCY OR ENTITY AS DESCRIBED IN THIS SUBDIVISION, THE CHILD
49 ADVOCATE SHALL ISSUE SUCH RESPONSE, AND THE REPORT ISSUED BY THE CHILD
50 ADVOCATE PURSUANT TO THIS SUBDIVISION, TO THE GOVERNOR AND THE LEGISLA-
51 TURE.
52 (C) IF A RESPONSE OR A WRITTEN REQUEST FOR AN ADDITIONAL THIRTY DAYS
53 WITH AN EXPLANATION IS NOT RECEIVED BY THE CHILD ADVOCATE WITHIN NINETY
54 DAYS FROM THE DATE THAT THE CHILD ADVOCATE SENT SUCH REPORT TO SUCH
55 OFFICE, DISTRICT, AGENCY OR ENTITY, THE CHILD ADVOCATE SHALL PROVIDE
56 SUCH REPORT TO THE GOVERNOR AND THE LEGISLATURE WITH A NOTICE STATING
S. 4790--A 4
1 THAT SUCH OFFICE, DISTRICT, AGENCY OR ENTITY FAILED TO ISSUE A TIMELY
2 WRITTEN RESPONSE TO THE REPORT BY THE CHILD ADVOCATE.
3 S 537. POWERS OF THE OFFICE OF THE CHILD ADVOCATE. NOTWITHSTANDING ANY
4 PROVISION OF LAW OR REGULATION TO THE CONTRARY, THE OFFICE OF THE CHILD
5 ADVOCATE SHALL HAVE ACCESS TO, INCLUDING THE RIGHT TO INSPECT AND COPY,
6 ANY RECORDS NECESSARY TO CARRY OUT ITS RIGHTS, POWERS AND DUTIES PURSU-
7 ANT TO THIS ARTICLE.
8 S 538. DUTY TO MAINTAIN CONFIDENTIALITY. ALL RECORDS OF THE OFFICE OF
9 THE CHILD ADVOCATE PERTAINING TO THE FULFILLMENT OF THE CHILD ADVOCATE'S
10 RIGHTS, POWERS AND DUTIES PURSUANT TO THIS ARTICLE, AND ALL RECORDS
11 OBTAINED BY THE CHILD ADVOCATE SHALL BE KEPT CONFIDENTIAL, PROVIDED
12 HOWEVER, THAT LIMITED INFORMATION CONTAINED IN SUCH RECORDS MAY BE
13 RELEASED BY THE CHILD ADVOCATE, IF APPROPRIATE, AND UPON APPROVAL OF THE
14 CHILD ADVOCATE, SO LONG AS THE INFORMATION TO BE RELEASED WOULD NOT
15 IDENTIFY THE CHILD OR CHILDREN THE CHILD ADVOCATE WAS SERVING, OR THE
16 NAMES OF THE PARENTS OR SIBLINGS OF SUCH CHILD OR CHILDREN.
17 S 539. ADDITIONAL PROVISIONS. 1. THE STATE SHALL PROTECT AND HOLD
18 HARMLESS ANY PERSON EMPLOYED OR APPOINTED BY THE CHILD ADVOCATE, FROM
19 FINANCIAL LOSS AND EXPENSE, INCLUDING LEGAL FEES AND COSTS, IF ANY,
20 ARISING OUT OF ANY CLAIM, DEMAND OR SUIT FOR DAMAGES RESULTING FROM ACTS
21 OR OMISSIONS COMMITTED IN THE DISCHARGE OF HIS OR HER RIGHTS, POWERS AND
22 DUTIES WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT OR APPOINTMENT WHICH
23 MAY CONSTITUTE NEGLIGENCE BUT WHICH ACTS ARE NOT WANTON, MALICIOUS OR
24 GROSSLY NEGLIGENT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
25 2. NO STATE OR LOCAL AGENCY, DEPARTMENT, OFFICE, OR ENTITY SHALL
26 DISCHARGE, OR IN ANY MANNER DISCRIMINATE OR RETALIATE AGAINST, ANY
27 PERSON WHO IN GOOD FAITH MAKES A COMPLAINT TO, OR COOPERATES WITH, THE
28 CHILD ADVOCATE IN A REVIEW OR EVALUATION CONDUCTED BY THE CHILD ADVO-
29 CATE. NO EMPLOYEE OF ANY STATE OR LOCAL DEPARTMENT OR OFFICE OR OF ANY
30 PRIVATE ENTITY SHALL RETALIATE AGAINST ANY PERSON WHO MAKES A COMPLAINT
31 TO, OR WHO COOPERATES WITH THE OFFICE OF THE CHILD ADVOCATE IN A REVIEW
32 OR EVALUATION CONDUCTED BY THE OFFICE OF THE CHILD ADVOCATE.
33 3. THE OFFICE OF THE CHILD ADVOCATE MAY APPLY FOR AND ACCEPT GRANTS,
34 GIFTS AND BEQUESTS OF FUNDS FROM PRIVATE INDIVIDUALS AND FOUNDATIONS FOR
35 THE PURPOSE OF CARRYING OUT SYSTEMATIC STUDIES UNDER THIS ARTICLE. THE
36 FUNDS SHALL BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SUCH GRANT,
37 GIFT OR BEQUEST.
38 4. THE CHILD ADVOCATE SHALL TAKE ALL POSSIBLE ACTIONS INCLUDING, BUT
39 NOT LIMITED TO, CONDUCTING PROGRAMS OF PUBLIC EDUCATION, UNDERTAKING
40 LEGISLATIVE ADVOCACY AND MAKING PROPOSALS FOR ADMINISTRATIVE CORRECTION
41 OR SYSTEMIC REFORM AND FORMAL LEGAL ACTION, IN ORDER TO SECURE AND
42 ENSURE THE LEGAL, CIVIL AND SPECIAL RIGHTS OF CHILDREN.
43 5. THE CHILD ADVOCATE SHALL TAKE THE APPROPRIATE STEPS TO MAKE THE
44 EXISTENCE AND AVAILABILITY OF THE CHILD ADVOCATE WIDELY KNOWN, BY APPRO-
45 PRIATE AND ACTIVE MEANS, TO CHILDREN AND ADULTS.
46 6. THE CHILD ADVOCATE SHALL CREATE INFORMATIONAL MATERIALS FOR CHIL-
47 DREN REGARDING THE RIGHTS OF CHILDREN WHEN THEY ARE IN FOSTER CARE,
48 DETENTION CENTERS, FACILITIES OPERATED BY THE OFFICE OF CHILDREN AND
49 FAMILY SERVICES, JAILS, OR PRISONS AND THE METHODS AND ASSISTANCE AVAIL-
50 ABLE TO ENFORCE THOSE RIGHTS.
51 S 2. Subdivision 16 of section 501 of the executive law, as renumbered
52 by chapter 170 of the laws of 1994, is renumbered subdivision 17 and a
53 new subdivision 16 is added to read as follows:
54 16. THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
55 SHALL PROMULGATE REGULATIONS REQUIRING THAT NO SERVICES OR PROGRAMS
56 UNDER THE JURISDICTION OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
S. 4790--A 5
1 SHALL RESTRICT OR PROHIBIT ACCESS TO RECORDS OR INDIVIDUALS TO THE
2 OFFICE OF THE CHILD ADVOCATE UPON REQUEST, UNLESS THE DISCLOSURE OF SUCH
3 RECORDS ARE OTHERWISE PROHIBITED BY FEDERAL LAW OR REGULATION.
4 S 3. This act shall take effect on April 1, 2011; provided, however,
5 that effective immediately, the addition, amendment and/or repeal of any
6 rule or regulation necessary for the implementation of this act on its
7 effective date are authorized and directed to be made and completed on
8 or before the effective date.
