HB440

ENROLLED, An Act,

Relating to religious, faith-based, or church nonprofit, other nonprofit, or for profit alternative boarding schools, outdoor programs, or residential institutions that house children for counseling, therapeutic, behavioral, or educational purposes when on-site residency of children is required for periods over 24 hours; to establish registration and regulatory requirements; to establish accountability for children enrolled at or housed by religious, or faith-based facilities, institutions, and programs that house children for periods of over 24 hours; to require an employee, volunteer, or applicant for employment or a volunteer position to undergo a criminal background investigation prior to having unsupervised contact with children; to establish a provision for fees and charges associated with the registration and regulation of these facilities; and to prohibit the operation of any youth residential facility, institution, or program in the state under this act unless the entity holds a current registration approval from the Department of Human Resources.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Alabama Youth Residential Facility Abuse Prevention Act.

Section 2. The Legislature finds that there is a substantial need to protect children and youth from abuse and neglect by persons entrusted with their physical custody, and from persons or organizations that advertise, hold themselves out, or lead others to believe that they will provide them with health, therapeutic, rehabilitative, or disciplinary services, and from persons employed or exercising authority over them, and who they depend upon to provide the basic necessities of life. The Legislature further finds that abuse and neglect often take the form of the withholding of the basic necessities of life, including food, water, shelter, clothing, and health care through an affirmative act or omission. It is the intent of the Legislature to implement a baseline of registration and regulation requirements for religious, faith-based, or church nonprofit, other nonprofit, and for profit affiliated youth residential facilities and institutions that have previously been exempt, and that criminal penalties be imposed on any individual guilty of the abuse or neglect of a child through an act or omission in association with services provided by such an institution. The Legislature further finds and declares the following:

(1) For several years, religious, faith-based, and church nonprofit, other nonprofit, and for profit residential affiliated facilities, institutions, and programs intended to be a less restrictive option for treatment of children and youth with substantial behavioral issues have been established nationwide, with numerous allegations of abuse and neglect, some resulting in death.

(2) There are currently religious, faith-based, or church nonprofit, other nonprofit, and for profit affiliated youth residential facilities, institutions, and programs operating in Alabama that are exempt from registration and regulation by the State Department of Human Resources.

(3) These facilities, institutions, and programs are owned and operated by for profit, or nonprofit organizations defined in Section 501(c)(3) of the Internal Revenue Code.

(4) These facilities, institutions, and programs advertise, both in state and out of state, that they provide services for youth with behavioral or other issues to individuals who may feel they have no other option.

(5) Victims of abuse and neglect of these organizations nationwide have formed organizations to expose the trauma, abuse, and neglect they experienced while residents at or in these institutions, facilities, and programs.

(6) Students and youth subject to enrollment or attendance of these facilities have experienced a host of other problems associated with the trauma, abuse, and neglect experienced at these institutions, facilities, and programs.

(7) There is a lack of accountability regarding the existence and status of children that are enrolled in or housed at these institutions and facilities being residents of both this state and other states.

(8) The states reserve the power to establish and enforce laws protecting the welfare, safety, and health of the public.

(9) It is the duty of the Legislature to ensure proper licensing and regulation of residential facilities for the protection and care of all citizens.

(10) It is the intent of the Legislature that the state require registration of religious, faith-based, or church nonprofit, other nonprofit, and for profit residential institutions, alternative boarding schools, and outdoor programs that house or contain children or youth for a period over 24 hours to provide counseling, therapeutic, disciplinary, or educational services when long-term on site residency of children is required.

Section 3. For the purposes of this act, the following terms shall have the following meanings:

(1) CHILD. A person under the age of 18 years.

(2) COMMUNITY TREATMENT FACILITY FOR YOUTHS. A religious, faith-based, or church nonprofit, other nonprofit, or for profit youth residential facility that provides mental health treatment services to children in a group setting and that has the capacity to provide secure containment.

(3) DEPARTMENT. The State Department of Human Resources.

(4) DIRECTOR. The Director of the State Department of Human Resources.

(5) LONG TERM YOUTH RESIDENTIAL FACILITY. A religious, faith-based, or church nonprofit, other nonprofit, or for profit long term residential facility, group care facility, or similar facility as determined by the director, providing 24-hour nonmedical care of youth in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the child and others and that has the capacity to provide secure containment.

(6) PRIVATE ALTERNATIVE BOARDING SCHOOL. A religious, faith-based, or church nonprofit, other nonprofit, or for profit group home that provides children with 24-hour residential care and supervision, which, in addition to providing educational services, provides, or holds itself out as providing, behavioral-based services to youth with social, emotional, or behavioral issues and that has the capacity to provide secure containment.

(7) PRIVATE ALTERNATIVE OUTDOOR PROGRAM. A religious, faith-based, or church nonprofit, other nonprofit, or for profit group home or residential facility that provides children with 24-hour residential care and supervision, which provides, or holds itself out as providing, behavioral-based services in an outdoor living setting to children with social or behavioral issues and that has the capacity to provide secure containment or prohibits children from freely leaving the area of operations for the program.

(8) RESTRICTIVE BEHAVIOR PRACTICES. Any institutional practice or procedure that involves assisting a child in gaining control of his or her behavior, protects a child from self-harm, protects other children or staff members, or prevents the destruction of property.

(9) YOUTH SOCIAL REHABILITATION FACILITY. A religious, faith-based, or church nonprofit, other nonprofit, or for profit residential facility that provides 24-hour nonmedical social rehabilitation services in a group setting to children recovering from mental illness or substance abuse who are in need of temporary assistance, guidance, or counseling and that has the capacity to provide secure containment.

(10) YOUTH TRANSITIONAL CARE FACILITY. A religious, faith-based, or church nonprofit, other nonprofit, or for profit group care facility that provides 24-hour nonmedical care of children in need of professional services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual or others and that have the capacity to provide secure containment.

Section 4. (a) Commencing on January 1, 2018, the department shall register any religious, faith-based, or church nonprofit, other nonprofit, or for profit affiliated youth residential facility, youth social rehabilitation facility, community treatment facility for youths, youth transitional care facility, long term youth residential facility, private alternative boarding school, private alternative outdoor program, and any organization entrusted with the residential care of children in any organizational form or combination defined by this section, whenever children are housed at the facility or location of the program for a period of more than 24 hours. At a minimum, registered youth residential institution or organization under this section shall do all of the following:

(1) Be owned and operated on a for profit or nonprofit basis.

(2) Prepare and maintain a current, written plan of operation, as defined by the department.

(3) Offer 24-hour, nonmedical care and supervision to youth who are voluntarily admitted by a parent or legal guardian, or referred by a court.

(4) Admit only children 12 years of age or older.

(5) Provide written notification on a standard form to the department or local county Department of Human Resources office where the facility is located within 48 hours of the arrival, enrollment, or admittance of any child to the institution, facility, or program as directed by the department.

(6) Have a ratio of one staff person to every four youths.

(7) Provide each prospective youth and his or her parent or legal guardian with an accurate written description of the programs and services to be provided while the child is a resident at the facility. If it advertises or promotes special care, programs, or environments for persons with behavioral, emotional, substance abuse, or social challenges, the written description shall include how its programs and services are intended to achieve the advertised or promoted claims.

(8) Ensure that all individuals providing mental health or behavioral-based services to youth at the facility are licensed or certified by the appropriate agency, department, or accrediting body, as specified by the department through agency rules.

(9) Prepare and implement a comprehensive health plan to ensure that each medical, dental, mental health, and other health needs of the child are met adequately and promptly.

(10) Explain its disciplinary practices individually with each child at the time the child is placed or enrolled in the institution, facility, or program.

(11) Obtain written consent for the use of any restrictive behavior management practice from the parents or legal guardian of the child.

(12) Not use secure containment or manual or mechanical restraints.

(13) Not allow the performance of any acts, tactics, techniques, or procedures for purposes of abusing, humiliating, degrading, isolating, or ostracizing a child from other children located or housed at the institution, facility, or program by any staff member or child.

(14) Not utilize restrictive behavior management practices as a means of punishment, for the convenience of staff members, or as a substitute for a treatment program.

(15) Ensure that each child is provided with three nutritious meals daily, either at the institution, facility, program operations site itself, or in the community.

(16) Select, store, prepare, and serve food in a sanitary and palatable manner.

(17) Ensure that every child is afforded the opportunity to participate freely in religious activities and or services in accordance with his or her own faith or with that of his or her parents.

(18) Maintain a bond or liability insurance of no less than five hundred thousand dollars ($500,000) per incident and show proof of the current status of the policy or bond prior to registration by the department.

(19) Include its facility, institution, or program registration number in all advertisements.

(20) Require that all employees of the facility or program undergo a child abuse and neglect clearance and a criminal background check prior to the approval of the registration of the facility or program and require that all employees obtain a criminal background check and child abuse and neglect clearance annually thereafter.

(21) Ensure that prior to employment, residence, or initial presence in the facility, institution, or with the program, all employees undergo a criminal background check.

(22) Maintain a smoke free environment in all buildings on the facility, institution, or program premises and in all vehicles used to transport children.

(23) Obtain a fire safety clearance approved by the local fire authority.

(24) If it offers access to, or holds itself out as offering access to, mental health services, ensure that those services are provided by a licensed mental health provider.

(25) If it advertises or includes in its marketing materials reference to providing alcohol or substance abuse treatment, ensure that the treatment is provided by a licensed or certified alcoholism or drug abuse recovery or treatment facility.

(26) Not admit a child who has been assessed by a licensed mental health professional as seriously emotionally disturbed, unless the child does not require care in a licensed health facility and the State Department of Mental Health has certified that the facility houses a program that meets the standards to provide mental health treatment services for a child having a serious emotional disturbance, as defined in Rule 290-8-9 of the Alabama Administrative Code.

(27) Immediately provide a written report on a standard form to the department and law enforcement agency of all fatalities and accidents requiring hospitalization or medical care by a physician occurring at the facility, institution, or program.

(28) Prohibit any staff member or child to possess any firearms, harmful chemicals, or other weapons within or on the grounds of the institution, facility, or program.

(b) Submit a staff training plan to the department as part of its plan of operation. In addition to the training required of facility, institutional, or program staff, the staff training plan shall include, but not be limited to, training in all of the following subject areas:

(1) Children's rights, as described in subsection (c).

(2) Physical and psycho-social needs of youth.

(3) Appropriate responses to emergencies, including an emergency intervention plan.

(4) Laws and regulations pertaining to residential care and housing facilities for children.

(c)(1) Any child that is enrolled in or a resident of a religious, faith-based, or church nonprofit, other nonprofit, or for profit affiliated youth residential facility, youth social rehabilitation facility, community treatment facility for youths, youth transitional care facility, long term youth residential facility, private alternative boarding school, private alternative outdoor program, and any organization entrusted with the residential care of children in any organizational form or combination defined by this section shall be afforded the following rights and any other rights adopted by the department through rule, which shall be publicly posted and accessible to youth:

a. To be afforded dignity in his or her personal relationships with staff, youth, and other persons.

b. To live in a safe, healthy, and comfortable environment where he or she is treated with respect.

c. To be free from physical, sexual, emotional, or other abuse or corporal punishment.

d. To be granted a reasonable level of personal privacy in accommodations, personal care and assistance, and visits.

e. To confidential care of his or her records and personal information, and to approve release of those records prior to the release of them, except as otherwise authorized or required by law.

f. To care, supervision, and services that meet his or her individual needs and that are delivered by staff who are sufficient in numbers, qualifications, and competency to meet his or her needs and ensure his or her safety.

g. To be served food and beverages of the quality and in the quantity necessary to meet his or her nutritional and physical needs.

h.1. To present grievances and recommend changes in policies, procedures, and services to the facility's staff, management, and governing authority, or any other person without the possibility of restraint, coercion, discrimination, reprisal, threat, or other retaliatory actions.

2. To have the registered entity take prompt actions to respond to grievances presented pursuant to subparagraph 1.

i. To be able to contact parents or legal guardians, including visits and scheduled and unscheduled private telephone conversations, written correspondence, and electronic communications, unless prohibited by court order.

j. To be fully informed, as evidenced by the youth's written acknowledgment, prior to, or at the time of, arrival or admission to the facility, institution, or program, of the rules governing the youth's rights, conduct, and responsibilities.

k. To receive in the admission agreement information that details the planned programs and services for the youth.

l. To have his or her parents or legal guardians remove him or her from the facility at any time unless prevented from doing so by a court order.

m. To consent to have visitors or telephone calls during reasonable hours, privately and without prior notice, if the visitors or telephone calls do not disrupt planned activities and are not prohibited by court order or by the youth's parent or legal guardian.

n. To be free of corporal punishment, excessive medication, physical restraints of any kind, and deprivation of basic necessities, unnecessary seclusion including education, as a punishment, deterrent, or incentive.

o. To be afforded the opportunity to enroll in, make progress toward, and complete a program leading to a General Education Development Certificate or other high school diploma equivalent upon being housed or located at the facility, institution, or program for a period of more than 30 days.

p. To have fair and equal access to all available services, placement, care, treatment, and benefits and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, mental or physical disability, or physical condition.

q. To be free from abusive, humiliating, degrading, or traumatizing actions.

r. To be free to attend religious services of their choice.

s. Any other rights the department adopts by rule; however, the department is not responsible or liable for violation of the above rights, including acts or omissions by facility employees.

(2) This section shall not apply to any facility administered, operated, licensed, or certified by the State Department of Education, Department of Corrections, Department of Youth Services, the Military Department, state recognized military academies, institutes, or boot camps, the Alabama School of Mathematics and Science, Alabama School of Fine Arts, any state school for the deaf or blind, or any other governmental entity or to a school that does not require residency as requirement for services provided. This section further shall not apply to outdoor activities for youth designed to be primarily recreational or for entertainment, including, but not limited to, any camp inspected and permitted by the Alabama Department of Public Health, activities organized by Boy Scouts, Girl Scouts, Camp Fire, or other similar church sponsored organizations, or any camp exclusively serving children with a medical diagnosis for a physical condition or illness, or any runaway or homeless shelter, or any similar place that supplies room and or board only, provided that the resident is free to leave that facility by his or her own volition at any time.

(3) The Department of Public Health shall regularly license and inspect the food preparation areas of the facilities under this statute for health and safety purposes.

(4) Law enforcement agencies shall have access to the private property of the facilities under this statute in furtherance of their duties to investigate abuse or neglect, or for any other lawful purpose.

Section 5. (a) Any employee, volunteer, or applicant for employment or for a volunteer position at or with any religious, faith-based, or church nonprofit, other nonprofit, or for profit affiliated youth residential facility, youth social rehabilitation facility, community treatment facility for youths, youth transitional care facility, long term youth residential facility, private alternative boarding school, private alternative outdoor program, and any organization entrusted with the residential care of children or youth in any organizational form or combination thereof defined by this section, or as defined by the department, shall be subject to a criminal background investigation prior to having unsupervised contact with the children in accordance with subdivision (1) of subsection (a) of Section 38-13-3, Code of Alabama 1975.

Section 6. (a)(1) The department may charge a fee for the registration. The fee may be set by rule of the department and may be based on the type of facility and the capacity of the facility. After the initial registration approval, the department may charge a renewal fee annually on each anniversary of the effective date of the registration. The fees are for the purpose of administering the registration program and enforcing the requirements specified in this act and shall be set accordingly.

(2) The department, at least every five years, shall analyze initial application fees and annual fees issued by it to ensure the appropriate fee amounts are charged.

(b) In addition to fees established by the department, the department shall also charge the following fees:

(1) A fee in the amount of 50 percent of the established application fee when an existing registered entity moves a facility to a new physical address.

(2) A fee in the amount of 50 percent of the established application fee when a corporate registered entity changes the person having the authority to select a majority of the board of directors.

(3) A fee in the amount of fifty dollars ($50) when an existing registered entity seeks to either increase or decrease the approved capacity of the facility.

(4) An orientation fee of fifty dollars ($50) for attendance by any individual at a department-sponsored information or orientation session.

(5) A probation monitoring fee equal to the current annual fee, in addition to the current annual fee for that category and capacity for each year a registered entity has been placed on probation as a result of an adjudication pursuant to the Administrative Procedure Act, Chapter 22, Title 41, Code of Alabama 1975.

(6) A late fee that represents an additional 50 percent of the established current annual fee when any registered entity fails to pay the current annual registration fee on or before the due date as indicated by postmark on the payment.

(7) A fee to cover any costs incurred by the department for processing payments including, but not limited to, insufficient funds charges, charges for credit and debit transactions, and postage due charges.

(8) A plan of correction fee of at least two hundred dollars ($200) when any registered entity does not implement a plan of correction on or prior to the date specified by a corrective action plan issued to it by the department.

(9) Additional fees established by the department by rule as necessary to regulate registered entities for institutions and organizations subject to this act.

(c) The revenues collected from registration fees pursuant to this section shall be utilized by the department for the purpose of ensuring the health and safety of all individuals provided care and supervision by entities registered under this act and to support operations of the registration program, including, but not limited to, monitoring facilities for compliance with registration laws and rules, and other administrative activities in support of the registration program. The revenues collected shall be used in addition to any other funds appropriated in the budget act in support of the registration program. The department shall adjust the fees collected pursuant to this section as necessary.

(d) The failure of an applicant or registrant to pay all applicable and accrued fees and civil penalties shall constitute grounds for denial or forfeiture of registration approval.

(e) Any fee or charge collected or any rule or standard implemented by the department pursuant to this act shall comply with the Alabama Administrative Procedure Act.

Section 7. (a) All youth residential facilities and organizations under this section shall be subject to a quarterly inspection by the department or its designee at a minimum and shall be responsible for providing necessary information as determined by the department to ensure the safety and welfare of residents. All youth residential facilities and organizations under this act shall provide at a minimum the following to the department upon request:

(1) The names of all children currently enrolled, registered, or housed at the facility or program.

(2) The names of all personnel currently employed or contracted for employment for or at the facility, institution, or program.

(3) The plan of operation, all written policies, procedures, and standard practices.

(4) The child-to-staff ratios.

(5) The staff qualifications and proof of training.

(6) Proof of the implementation of childrens' needs and services plan.

(7) A written fire evacuation and natural disaster plan and maintain a record of routine drills of the plan.

(8) Proof of liability insurance with coverage of no less than the amount specified in subsection 3(a) of this act.

(9) Proof of immunization against disease of all children housed or contained at the facility or in the program with proof of exemption of a child due to parental beliefs, which exemption shall be permitted.

(b) All youth residential facilities and organizations under this section shall inform the parents or authorized guardian or adult representative of the child of their rights including the following at a minimum:

(1) To enter and inspect the facility, institution, or program as determined by law.

(2) To file a complaint against the registered entity with the department without discrimination against the parent or the child housed by or located at the facility or program.

(3) To view the child's records associated with the facility, institution, or program including treatment, disciplinary, and other actions the department determines to be vital to his or her situational awareness as a parent or guardian.

(4) To review the registered entity's public file at the appropriate department online site or physical location.

(5) To view the prominently displayed list of child or youth rights associated with this act or those enumerated per department rules.

(6) To view copies of any report that documents any finding of noncompliance by the department.

(7) To view copies of any documentation issued to the registered entity documenting the department's intent to revoke the registration approval of the facility, institution, or program.

Section 8. (a) On or before January 1, 2018, the department shall adopt rules to implement this act, in consultation with interested parties, including representatives of any institution with any combination of organizational characteristics defined by this section, former residents of long-term youth residential facilities, advocates for youth, and private concerned parties. Until rules are adopted by the department and become effective any existing child or youth residential organization, facility, institution, boarding school, or program operating in this state shall be governed by the rules applicable to residential care facilities regulated by the Department of Human Resources pursuant to published minimum standards for residential child care facilities. Any institution, facility, or program subject to this act, operating prior to January 1, 2018, shall comply with the department's registration requirements on or before July 1, 2017.

(b) The department may adopt emergency rules to implement this section.

(c) The department shall have the authority to act in loco parentis for any child covered under this section in need of immediate health, welfare, protective, or other critical services until that child's parent or guardian can be contacted and is able to make those decisions in the interest of the child.

(d) No religious, faith-based, or church nonprofit, other nonprofit, or for profit affiliated youth residential facility, youth social rehabilitation facility, community treatment facility for youths, youth transitional care facility, long term youth residential facility, private alternative boarding school, private alternative outdoor program, and any organization entrusted with the residential care of children in any organizational form or combination defined by this section may operate in this state without a current registration approval from the department.

(e) Nothing in this section shall prohibit a religious, faith-based, or church nonprofit, other nonprofit, or for profit residential, rehabilitation, community treatment, transitional care facility, or private alternative boarding school or outdoor program that utilizes religious, prayer, or spiritual means as the basis for its program or services from providing those services in accordance with its religious beliefs. Any such facility or program shall include in its advertising that it bases its services or treatment on religious principles. Such facility or program shall provide to any applicant a detailed explanation of its faith-based programs. Such facility or program may require participants to participate in these programs, notwithstanding any other provision of this chapter. This chapter shall not give the department the authority to regulate or prohibit religious-based treatment; provided, however, the treatment shall not be used to violate or circumvent any of the other requirements of this chapter related to the physical safety and condition of any child or the condition of the facility.

(f) Nothing in this section shall prohibit a religious, faith-based, or church nonprofit, other nonprofit, or for profit residential, rehabilitation, community treatment, or transitional care facility, or a private alternative boarding school, or outdoor program that utilizes religious, prayer, or spiritual means as the basis for its services from providing those services in accordance with its religious beliefs.

(g) Nothing in this section shall give the department the authority to regulate or prohibit religious-based treatment or services, provided that, the treatment or services are not in violation of any requirements of this section as it relates to the safety and welfare of children.

(h) Nothing in this section shall be construed or interpreted to authorize any state agency to license or regulate a non-residential private, nonpublic, church or nonprofit school offering instruction in grades K-12, or any combination thereof, that houses or contains children or youth for a period of less than 24 hours.

Section 9. This act shall not be interpreted to supersede any other law requiring the reporting or investigation of child abuse or neglect.

Section 10. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Licenses and Licensing

Religion

Children

Churches

Private Institutions

Human Resources Department