SB 295-FN - AS AMENDED BY THE SENATE
SENATE BILL 295-FN
SPONSORS: Sen. Carson, Dist 14; Sen. Bradley, Dist 3; Rep. Berrien, Rock. 18; Rep. Rice, Hills. 37; Rep. L. Ober, Hills. 37
This bill recodifies the statutes governing the office of the child advocate, clarifies the authority and independence of the office, and expands the jurisdiction of the office to include a broader range of agencies that serve children. The bill also establishes an oversight commission on children's services.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
01/08/2020 2887s 19-0942
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
OFFICE OF THE CHILD ADVOCATE
21-V:1 Definitions. In this chapter, and unless the specific context indicates otherwise:
I. “Agency” means any department, institution, bureau, or office of the state, as well as other public and private children and youth service organizations providing services under contract or agreement with an executive agency; provided that "agency" shall not include the judicial council or any entity for which the council provides services.
II. "Child advocate" means the administrative head of the office of the child advocate.
III. “Critical incident” means:
(a) A fatality of a child, including, but not limited to, circumstances of accident, child abuse, child neglect, homicide or other violence, natural cause, overdose, suicide, or terminal illness.
(b) A near fatality or serious bodily or emotional injury of a child.
(c) Abduction of a child.
(d) Human trafficking of a child, including, but not limited to, labor trafficking, sex trafficking, or child sexual abuse images.
(e) The death of a parent or guardian of a child.
(f) An accident involving division staff with a child, parent, or provider.
(g) Suicide or attempted suicide by a child.
(h) Rape or other sexual assault of a child.
(i) Serious physical injury or risk thereof to a child.
(j) Serious psychological injury or risk thereof of a child.
(k) An inquiry made by the governor’s office, the department of health and human service's commissioner’s office, or the division child advocate's office regarding a child.
(l) Circumstances which result in a reasonable belief that the division failed in its duty to protect a child and, as a result, the child was at imminent risk of, or suffered serious bodily or emotional injury or death.
(m) A media report of a child.
(n) Any restraint or seclusion of a child.
(o) Any other incident that may seriously affect the health and well-being of a child.
IV. “Child” or “youth” means a person under the age of 21 who is in the custody of or receiving services from the division, or who was in the custody of or received services from the division within the past 3 years, or whose siblings, parents, or other caretakers have been the subject of a report to the division within the past 3 years, or who is receiving services from any executive agency.
V. “Division” means the department of health and human services, division for children, youth and families.
VI. “Executive agency” means a state agency within the executive branch that provides services to children.
VII. “Office” means the office of the child advocate.
VIII. “Oversight” means review, monitoring, and evaluation of any executive agency, and all contracted programs, providers, services, and activities of those executive agencies as well as executive agencies’ policies, procedures, and practices and implementation and amendment of such policies, procedures, and practices related to the care of, or services to, children.
IX. “Oversight commission” means the oversight commission on children’s services established under RSA 21-V:10.
X. “Record” means all records, documents, books, papers, files, photographs, microfilms, sound recordings, magnetic storage media, drafts, computer data, court documents, reports, electronic databases, emails and any other form of communication, and all other materials, regardless of physical form or characteristics, created, generated, recorded, received, possessed, or controlled by or on behalf of executive agencies.
21-V:2 Office of the Child Advocate Established. There shall be an office of the child advocate which shall be an independent agency, attached to the department of administrative services pursuant to RSA 21-G:10 for administrative purposes only. The office shall:
I. Notwithstanding any other provision of law, operate with full independence from any state official, department, or agency in the performance of its duties.
II. Provide independent oversight of executive agencies to:
(a) Ensure that children involved with an agency, and in particular, children served by the child welfare or juvenile justice systems, receive timely, safe, and effective services and that their best interests are being protected.
(b) Strengthen the state by working in collaboration with agencies and other necessary parties on cases under review.
(c) Ensure that children placed in the care of the state or receiving services under the supervision of an agency in any public or private facility, receive humane and dignified treatment at all times, with full respect for the child’s personal dignity, right to privacy, and right to adequate and appropriate healthcare and education in accordance with state and federal law.
(d) Examine, on a system-wide basis, the care and services that agencies provide children, and provide recommendations to improve the quality of those services in order to provide each child the opportunity to live a full and productive life.
(e) Advise the public, governor, commissioners, speaker of the house of representatives, senate president, and oversight commission about how the state may improve its services to and for children and their families.
(f) Periodically review and investigate any aspect of an agency’s policies, procedures, and practices and work collaboratively with the agency to improve policies, procedures, practices, and programs affecting children.
III. Upon its own initiative or upon receipt of a complaint, review and if deemed necessary:
(a) Investigate the actions of any agency and make appropriate referrals; provided that department of health and human services specific complaints shall be handled by the ombudsman pursuant to RSA 126-A:4, III.
(b) Investigate those complaints in which the child advocate determines that a child or family may be in need of assistance from the office or a systemic issue in the state’s provision of services is raised by the complaint.
(c) Provide assistance to a child or family whom the child advocate determines is in need of assistance, including seeking resolution of complaints, which may include, but not be limited to, referring a complaint to the appropriate agency or entity, making a recommendation to such agency or entity for action related to the complaint, and sharing information in any proceeding before any court or agency in the state in which matters related to the division's child protection and juvenile justice services are at issue.
IV. Regularly consult with executive agencies and the oversight commission.
V. Provide information and referral services to the public regarding all child-serving state services, particularly child protection and juvenile justice services.
VI. Perform educational outreach and advocacy initiatives in furtherance of the mission and responsibilities of the office.
VII. Periodically review the facilities and procedures of any and all institutions or residences, public or private, where a child has been placed by an agency.
VIII. Apply for and accept grants, gifts, bequests of funds from other states, federal and interstate agencies, independent authorities and private firms, individuals, and foundations, for the purpose of carrying out the responsibilities, and consistent with the mission, of the office.
21-V:3 Child Advocate; Appointment; Term; Vacancy; Removal.
I. The office of the child advocate shall be under the supervision of the child advocate. The child advocate shall be the administrative head of the office and shall be a full-time, unclassified position, responsible for the duties of the office.
II. The child advocate shall be appointed by the governor and executive council, upon the recommendation of the oversight commission.
III. The child advocate shall serve a term of 4 years and until a successor is appointed and qualified. Any vacancy in the position shall be filled in the same manner as the original appointment for the remainder of the unexpired term.
IV. Upon any vacancy in the position of the child advocate, and until such time as a candidate has been appointed by the governor and council, the associate child advocate shall serve as the acting child advocate and be entitled to the compensation, privileges, and powers of the child advocate.
V. Any person appointed to the position of child advocate shall be selected without regard to political affiliation and on the basis of integrity and demonstrated ability, and shall possess a professional graduate degree in law, social work, public health, or a related field and be qualified by reason of education, experience, and expertise to perform the duties of the office.
VI. The child advocate may be removed from office for cause pursuant to RSA 4:1.
VII. The child advocate shall appoint an associate child advocate, and may, subject to appropriation, appoint such other personnel as the child advocate deems necessary for the efficient management of the office. The duties of these personnel shall be performed under and by the advice and direction of the child advocate.
21-V:4 Access to Information and Facilities.
I. The office shall have access to the following information:
(a) All case records, all third party records, including the healthcare and education records of any child receiving services from an executive agency, and all records submitted to the courts.
(b) Executive agencies’ policies and procedures, including draft policies and procedures.
(c) Executive agencies’ records or reports, including draft records and reports.
(d) Autopsy reports from the chief medical examiner, which shall be provided in a timely manner upon the request of the child advocate.
II. The office shall be entitled to prompt electronic access to division records within the scope of its mission.
III. The office, in performance of its duties under this chapter, may communicate privately with any child or person who has received, is receiving, or should have received services from the state. Such communications shall be confidential and not be subject to disclosure except as provided in RSA 21-V:5.
21-V:5 Confidentiality of Information.
I. The office shall maintain the confidentiality of all case records, third party records, and court records pursuant to RSA 169-C:25 and RSA 170-G:8-a, and all other related confidentiality laws.
II. The office investigations and oversight activities, and the information gathered in such investigations and oversight activities, including the identity of any complainant, shall be exempt from the public disclosure provisions of RSA 91-A. Such investigations, oversight activities, and information shall be privileged and exempt from use or disclosure in any criminal or civil matter or administrative proceeding.
III. The child advocate of the office may disclose confidential information about a child to any individual or entity responsible for, or providing services to, the child. Any disclosures of confidential information shall be the minimum necessary to ensure proper care and treatment for the child or to identify, prevent, or treat the abuse or neglect of a child.
IV. The child advocate shall have the same authority as the commissioner of the department of health and human services to publicly release information pursuant to RSA 126-A:5, XII in furtherance of the mission and responsibilities of the office.
V. Notwithstanding any provision of law to the contrary, if the child advocate determines that the health, safety, and welfare of children are at risk, the child advocate may publicly disclose the details of investigation findings, subject to the following limitations:
(a) Names, addresses, or other identifying information of individuals who are the subject of any confidential proceeding or statutory confidential provision shall not be released to the public.
(b) Investigation findings shall not be released if there is a pending law enforcement investigation or prosecution, except as provided in paragraph III.
21-V:6 Power of Subpoena. The office shall have the authority to subpoena witnesses, records, documents, reports, reviews, recommendations, correspondence, data, and other evidence that the office reasonably believes is relevant.
21-V:7 Incidents and Fatalities.
I. The division shall provide the office with a copy of all critical incident reports or other reports related to actual physical injury to children or a significant risk of such harm, as well as other incidents which may affect the safety and well-being of children in the custody or control of the department of health and human services, including but not limited to reports related to the restraint and seclusion of any child under the care and protection of the division, not later than 48 hours after the occurrence.
II. The division shall provide the office with notice of any child fatality or serious injury of a child under its care or supervision or whose safety and the safety of the child’s siblings has been or is being assessed, immediately by telephone. The division shall further provide the office with written report of such fatality or serious injury not later than 48 hours after the occurrence.
21-V:8 Annual Report. Beginning November 1, 2020, and each November 1 thereafter, the child advocate shall submit an annual report of the activities and findings of the office, and present his or her recommendations to the oversight commission. The report shall also be provided to the commissioner of any executive agency that is the subject of a report prepared by the office, the governor, the speaker of the house of representatives, the senate president, and the state library. The child advocate shall make the annual report available to the public on the office of the child advocate's website.
21-V:9 Confidentiality and Admissibility. No person employed or contracted by or volunteering for the office shall be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving exercise of his or her official duties except as may be necessary to enforce this chapter. All related memoranda, work product, notes, or case files of the office are confidential and are not subject to discovery, subpoena, or other means of legal compulsion, and are not admissible in evidence in a judicial or administrative proceeding. This limitation shall not apply to information obtained by any employee, contractor, or volunteer of the office regarding a crime or fraud, or a communication of imminent risk of serious harm, nor shall it apply to communications regarding the general operation of the office and the processes employed.
21-V:10 Oversight Commission on Children’s Services Established.
I. There shall be an oversight commission on children's services, which shall consist of the following members:
(a) Two members of the senate, appointed by the senate president.
(b) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(c) Four members representing the executive branch, appointed by the governor.
(d) Two members representing the judicial branch, appointed by the chief justice of the supreme court.
(e) Two representatives of the New Hampshire Association of Chiefs of Police, one of whom serves as chief of police for a city and one of whom serves as chief of police for a town.
(f) Two members of child advocacy organizations, appointed by the senate president.
(g) Two members of child advocacy organizations, appointed by the speaker of the house of representatives.
(h) An individual who was formerly a recipient of child protection, juvenile justice, or voluntary services through the division, appointed by the governor.
(i) An individual who has served or is serving as a foster parent, appointed by the governor.
II. Legislative members of the commission shall serve a term coterminous with their term in office. Members appointed under subparagraphs (c)-(i) shall serve 3-year terms. Legislative members of the commission shall receive mileage at the legislative rate when attending to the duties of the commission.
III. The oversight commission shall:
(a) Recommend at least 3 qualified candidates to the governor, in rank order, for appointment to the position of child advocate; except that in the case of reappointment, a single recommendation shall be sufficient.
(b) Provide oversight to the office in its effort to support an effective, comprehensive, and coordinated system of services and programs for children, youth, and families.
(c) Review with the office the efficacy of selected programs and services of executive agencies, including the characteristics of target populations, trends affecting program costs and participation, and alternative approaches to programmatic and administrative concerns.
(d) Collaborate with the office to identify and implement best practices on behalf of children and families.
(e) Monitor and review implementation of the memorandum of understanding entered into by the department of health and human services and the department of justice regarding the collaboration between the agencies in the investigation and prosecution of abuse and neglect cases.
IV. The oversight commission shall elect a chairperson from among the members. The first meeting of the commission shall be called by the first-named senate member. The first meeting of the commission shall be held within 45 days of the effective date of this section. Nine members of the commission shall constitute a quorum.
2 Applicability; Oversight Commission on Children's Services. To the extent practicable, members of the oversight commission on children's services established in RSA 170-G:19 on the effective date of this act shall serve the remainder of their terms on the oversight commission established in RSA 21-V:10.
SB 295-FN- FISCAL NOTE
AN ACT relative to the office of the child advocate.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill clarifies the authority of the Office of the Child Advocate, and expands its jurisdiction to include any department, commission, board, institution, bureau, or office of the state, as well as other public and private organizations providing services to children under a contract or agreement with the state. In order to fulfill its expanded responsibilities, the Office states it will need two new positions at the costs shown below. The bill does not itself contain an appropriation or authorization for new positions.
Assistant Child Advocate (LG 25)
Planning Analyst/Program Coordinator (LG 24)
Office of the Child Advocate and Department of Health and Human Services
|Feb. 5, 2019||Senate||Hearing|
|Jan. 8, 2020||Senate||Floor Vote|
|Jan. 3, 2019||Introduced 01/03/2019 and Referred to Judiciary; SJ 4|
|Feb. 5, 2019||Hearing: 02/05/2019, Room 100, SH, 10:45 am; SC 9|
|March 14, 2019||Committee Report: Rereferred to Committee, 03/14/2019; Vote 5-0; CC; SC 13|
|March 14, 2019||Rereferred to Committee, MA, VV; 03/14/2019; SJ 8|
|Committee Report: Ought to Pass with Amendment # 2019-2887s|
|Jan. 8, 2020||Committee Report: Ought to Pass with Amendment # 2019-2887s, 01/08/2020; SC 47|
|Jan. 8, 2020||Committee Amendment # 2019-2887s, AA, VV; 01/08/2020; SJ 1|
|Jan. 8, 2020||Ought to Pass with Amendment 2019-2887s, MA, VV; OT3rdg; 01/08/2020; SJ 1|
|Jan. 9, 2020||Introduced 01/09/2020 and referred to Children and Family Law|