Rpld Art 19-G Title 3 Subtitle B, add Art 19-I §§533 - 539, amd §501, Exec L
Establishes the independent office of the child advocate to ensure the protection and promotion of the rights of children in the care of any state agency or local social services district; repeals certain provisions relating to the office of the ombudsman.
STATE OF NEW YORK
________________________________________________________________________
4798--A
2015-2016 Regular Sessions
IN ASSEMBLY
February 6, 2015
___________
Introduced by M. of A. CLARK, TITUS, PAULIN, BENEDETTO, PEOPLES-STOKES,
COLTON, GALEF, PERRY, WEPRIN -- Multi-Sponsored by -- M. of A. ABINAN-
TI, ARROYO, CAHILL, COOK, CROUCH, FARRELL, FINCH, GANTT, GOODELL,
GOTTFRIED, HIKIND, JAFFEE, KAVANAGH, LIFTON, LUPARDO, McKEVITT,
McLAUGHLIN, MILLER, MONTESANO, ORTIZ, ROBINSON, ROSENTHAL, WRIGHT --
read once and referred to the Committee on Children and Families --
recommitted to the Committee on Children and Families in accordance
with Assembly Rule 3, sec. 2 -- 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 independent office of the child advocate; and repealing certain
provisions of such law relating to the office of the ombudsman
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subtitle B of title 3 of article 19-G of the executive law
2 is REPEALED.
3 § 2. The executive law is amended by adding a new article 19-I to read
4 as follows:
5 ARTICLE 19-I
6 INDEPENDENT OFFICE OF THE CHILD ADVOCATE
7 Section 533. Independent office of the child advocate; creation.
8 534. Definitions.
9 535. The child advocate.
10 536. Duties of the child advocate.
11 537. Powers of the independent office of the child advocate.
12 538. Duty to maintain confidentiality.
13 539. Additional provisions.
14 § 533. Independent office of the child advocate; creation. There is
15 hereby created in the executive department, an independent office of the
16 child advocate, which shall:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08653-03-6
A. 4798--A 2
1 1. examine, evaluate and report to the governor and the legislature
2 on:
3 (a) particular and systemic issues in publicly funded programs over-
4 seen by any executive agency with custody of children; and
5 (b) multi-systemic issues that children in the care, custody or guar-
6 dianship of any state agency that has custody of children or a local
7 social services district, and the families of such children experience
8 in accessing needed services across systems; and
9 2. advocate for, and report to the governor and the legislature on
10 suggested statutory, regulatory or policy changes aimed at improving
11 outcomes and services for children and their families in New York state.
12 § 534. Definitions. As used in this article:
13 1. "Child" or "children" means:
14 (a) a person, or persons under the age of eighteen; or
15 (b) a person or persons under the age of twenty-one who has been
16 placed into the care, custody, or guardianship of any state agency that
17 has custody of children or a local social services district pursuant to
18 article three, seven or ten of the family court act or section three
19 hundred fifty-eight-a, three hundred eighty-three-c, three hundred
20 eighty-four-a or three hundred eighty-four-b of the social services law;
21 or
22 (c) a person or persons under the age of twenty-one who is placed in
23 residential care as defined in section four hundred twelve of the social
24 services law.
25 2. "Child advocate" means the person appointed pursuant to subdivision
26 one of section five hundred thirty-five of this article to direct and
27 oversee the activities of the independent office of the child advocate.
28 § 535. The child advocate. 1. The child advocate shall be an individ-
29 ual with at least five years experience in the general subject area of
30 either child welfare, juvenile justice or childhood behavioral health,
31 who shall be appointed by the governor.
32 2. The child advocate may hire or appoint persons as may be deemed
33 necessary to carry out the duties of the independent office of the child
34 advocate. The duties of persons employed or appointed by the child advo-
35 cate shall be performed under the advice and supervision of the child
36 advocate. Persons employed or appointed by the independent office of the
37 child advocate shall be individuals with expertise in the areas of child
38 welfare, juvenile justice, childhood behavioral health, foster care,
39 preventive services, or child care, as evidenced by expertise in the
40 field, practice, advocacy or by academic background, the level and
41 sufficiency of which shall be determined by the child advocate. The
42 child advocate shall fix the compensation of persons employed or
43 appointed by the independent office of the child advocate within amounts
44 appropriated therefor.
45 § 536. Duties of the child advocate. 1. The child advocate shall:
46 (a) examine, evaluate, investigate and report to the governor and the
47 legislature on particular and systemic issues in publicly funded
48 programs overseen by a state agency that has custody of children and
49 local social services districts, including but not limited to child
50 welfare, juvenile justice, foster care, child protective, child care and
51 preventative services; and
52 (b) examine, evaluate, investigate and report to the governor and the
53 legislature on multi-systemic issues that children in the care, custody
54 or guardianship of a state agency that has custody of children or a
55 local social services district, and the families of such children, expe-
56 rience in accessing needed services across systems; and
A. 4798--A 3
1 (c) monitor the implementation of the policies, regulations and stat-
2 utes of state agencies which may be applicable to the legal rights of
3 children in the care, custody or guardianship of a state agency that has
4 custody of children or a local social services district, or the families
5 of such children; and
6 (d) monitor the implementation of policies, regulations and statutes
7 which may have an impact on publicly funded programs overseen by the
8 office of children and family services, including but not limited to
9 child welfare, juvenile justice, foster care, child protective, child
10 care and preventative services; and
11 (e) recommend changes in state policies, statutes and regulations
12 concerning children in the care, custody or guardianship of a state
13 agency that has custody of children or a local social services district,
14 and the families of such children; and
15 (f) recommend changes in state policies, statutes, and regulations
16 concerning publicly funded programs that service children and families,
17 including but not limited to child welfare, juvenile justice, foster
18 care, child protective, child care and preventative services, adminis-
19 tered by a state agency that has custody of children or local social
20 services districts; and
21 (g) take appropriate actions aimed at promotion of the rights, safety,
22 well-being, and best interests of children in New York state, including,
23 but not limited to, undertaking legislative advocacy, conducting public
24 hearings and making proposals for administrative or systemic reform; and
25 (h) provide administrative supervision and oversight to the independ-
26 ent office of the child advocate and devote full-time to the duties of
27 his or her office; and
28 (i) conduct periodic inspections, evaluations or reviews of any facil-
29 ity operated by a state agency that has custody of children at any time,
30 with or without prior notice. Facility directors and staff shall coop-
31 erate with such inspection, evaluation or review. An advocate shall have
32 the right to inspect the facility, visit all areas and observe all parts
33 and aspects of such facility program; and
34 (j) report to the governor and the legislature as needed, but not less
35 than twice per year. Such report shall be made available to the public,
36 unless such materials are confidential pursuant to statute, and shall
37 include but not be limited to:
38 (A) information concerning the number and types of reviews, evalu-
39 ations and investigations conducted by the independent office of the
40 child advocate; and
41 (B) any recommendations by the child advocate for legislative, regula-
42 tory, or public policy changes.
43 2. If after examination pursuant to subdivision one of this section,
44 the child advocate identifies a systemic problem in how services are
45 provided to children in the care, custody, or guardianship of a state
46 agency that has custody of children or a local social services district,
47 by a state agency that has custody of children, or a local social
48 services district, or any public or private entity which contracts with
49 the office of children and family services or a local social services
50 district to provide services to such children, the child advocate shall
51 provide such office, district, agency or entity a written report outlin-
52 ing the findings and recommendations of the child advocate.
53 (a) An office, district, agency or entity named in a report by the
54 child advocate as described in this subdivision shall have the option to
55 respond in writing to the child advocate's findings, provided however
56 that such written response must be issued within ninety days of such
A. 4798--A 4
1 office, district, agency or entity's receipt of the applicable report by
2 the child advocate.
3 (b) Within thirty days after the receipt of a response from an office,
4 district, agency or entity as described in this subdivision, the child
5 advocate shall issue such response, and the report issued by the child
6 advocate pursuant to this subdivision, to the governor and the legisla-
7 ture.
8 (c) If a response or a written request for an additional thirty days
9 with an explanation is not received by the child advocate within ninety
10 days from the date that the child advocate sent such report to such
11 office, district, agency or entity, the child advocate shall provide
12 such report to the governor and the legislature with a notice stating
13 that such office, district, agency or entity failed to issue a timely
14 written response to the report by the child advocate.
15 § 537. Powers of the independent office of the child advocate.
16 Notwithstanding any provision of law or regulation to the contrary, the
17 independent office of the child advocate shall have access to, including
18 the right to inspect and copy, any records necessary to carry out its
19 rights, powers and duties pursuant to this article, including but not
20 limited to, personnel records that bear on any issue being reviewed,
21 evaluated, or investigated and records of children under the care of a
22 state agency that has custody of children or a local social services
23 district that bear on any issue being reviewed, evaluated, or investi-
24 gated. The independent office of the child advocate shall also have the
25 authority to subpoena records and witnesses, and to conduct interviews
26 with any person necessary to carry out its rights, powers and duties
27 pursuant to this article, including but not limited to staff and chil-
28 dren under care of the office of children and family services or a local
29 social services district.
30 § 538. Duty to maintain confidentiality. All records of the independ-
31 ent office of the child advocate pertaining to the fulfillment of the
32 child advocate's rights, powers and duties pursuant to this article, and
33 all records obtained by the child advocate shall be kept confidential,
34 provided however, that limited information contained in such records may
35 be released by the child advocate, if appropriate, and upon approval of
36 the child advocate, so long as the information to be released would not
37 identify the child or children the child advocate was serving or the
38 names of the parents or siblings of such child or children.
39 § 539. Additional provisions. 1. The state shall protect and hold
40 harmless any person employed or appointed by the child advocate, from
41 financial loss and expense, including legal fees and costs, if any,
42 arising out of any claim, demand or suit for damages resulting from acts
43 or omissions committed in the discharge of his or her rights, powers and
44 duties within the scope of his or her employment or appointment which
45 may constitute negligence but which acts are not wanton, malicious or
46 grossly negligent as determined by a court of competent jurisdiction.
47 2. No state or local agency, department, office, or entity shall
48 discharge, or in any manner discriminate or retaliate against, any
49 person who in good faith makes a complaint to, or cooperates with, the
50 child advocate in a review or evaluation conducted by the child advo-
51 cate. No employee of any state or local department or office or of any
52 private entity shall retaliate against any person who makes a complaint
53 to, or who cooperates with the independent office of the child advocate
54 in a review, investigation or evaluation conducted by the independent
55 office of the child advocate.
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1 3. All communications to the independent office of the child advocate
2 shall remain confidential. Any complaint filed by any person with the
3 independent office of the child advocate shall remain confidential.
4 4. All youth residing in a juvenile justice facility shall be permit-
5 ted reasonable access to a telephone to make a toll free call or shall
6 be supplied writing materials in order to write letters to the independ-
7 ent office of the child advocate upon the youth's request. Any communi-
8 cations between such youth and the independent office of the child advo-
9 cate shall remain confidential and shall not be monitored by any member
10 of the facility's staff.
11 5. The independent office of the child advocate may apply for and
12 accept grants, gifts and bequests of funds from private individuals and
13 foundations for the purpose of carrying out studies under this article.
14 The funds shall be expended in accordance with the provisions of such
15 grant, gift or bequest.
16 6. The child advocate shall take all possible actions including, but
17 not limited to, conducting programs of public education, undertaking
18 legislative advocacy and making proposals for administrative correction
19 or reform and formal legal action, in order to secure and ensure the
20 legal, civil and special rights of children.
21 7. The child advocate shall take the appropriate steps to make the
22 existence and availability of the child advocate widely known, by appro-
23 priate and active means, to children and adults.
24 § 3. Subdivision 16 of section 501 of the executive law, as renumbered
25 by chapter 170 of the laws of 1994, is renumbered subdivision 17 and a
26 new subdivision 16 is added to read as follows:
27 16. The commissioner of the office of children and family services
28 shall promulgate regulations requiring that no services, facilities,
29 entities or programs under the jurisdiction of a state agency that has
30 custody of children shall restrict or prohibit access to facilities,
31 records or individuals to the independent office of the child advocate
32 upon request, unless the disclosure of such records are otherwise
33 prohibited by federal law or regulation.
34 § 4. This act shall take effect April 1, 2017; provided, however, that
35 effective immediately, the addition, amendment and/or repeal of any rule
36 or regulation necessary for the implementation of this act on its effec-
37 tive date is authorized and directed to be made and completed on or
38 before the effective date.
