Existing law, the Aid to Families with Dependent Children-Foster Care (AFDC-FC) program, requires foster care providers to be paid a per child per month rate, established by the State Department of Social Services, for the care and supervision of the child placed with the provider. Existing law prohibits foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for specified state or federal programs unless required by federal law as a condition of the receipt of federal financial participation.

This bill would repeal the above-described prohibition on foster care payments from being considered income.

This bill would declare that it is to take effect immediately as an urgency statute.

Existing law, the Aid to Families with Dependent Children-Foster Care (AFDC-FC) program, requires foster care providers to be paid a per child per month rate, established by the State Department of Social Services, for the care and supervision of the child placed with the provider. Existing law prohibits foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for specified state or federal programs unless required by federal law as a condition of the receipt of federal financial participation.

This bill would repeal the above-described prohibition on foster care payments from being considered income.

This bill would declare that it is to take effect immediately as an urgency statute.

The Ralph Civil Rights Act of 1976 provides, in part, that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would repeal the uncodified provision entitling the Ralph Civil Rights Act of 1976, and would instead state the findings of the Legislature that the above-described provision was enacted as part of the Ralph Civil Rights Act of 1976. include that title in the above-described provision.

The Ralph Civil Rights Act of 1976 provides, in part, that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would repeal the provision entitling the Ralph Civil Rights Act of 1976, and would instead state the findings of the Legislature that the above-described provision was enacted as part of the Ralph Civil Rights Act of 1976.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 1694

Author:(Mark Stone)

As Amended Ver:January 12, 2018

2/3 vote. Urgency

(vote not relevant)

Hum. S.

Original Committee Reference: HUM. S.

SUMMARY: Deletes language prohibiting foster care payments from being considered foster parent or child income when determining eligibility and benefit amounts for certain state or federal programs except as required by federal law, as specified, and enacts this bill as an urgency statute.

The Senate amendments delete the Assembly version of the bill, and instead:

1. Delete language prohibiting foster care payments from being considered foster parent or child income when determining eligibility and benefit amounts for certain state or federal programs except as required by federal law, as specified.
2. State that this bill is an urgency statute, as specified, thereby requiring it to go into effect immediately.

EXISTING LAW:

1. States that the purpose of foster care law is to provide maximum safety and protection for children who are being physically, sexually or emotionally abused, neglected, or exploited and to ensure the safety, protection, and physical and emotional well-being of children at risk of such harm. (Welfare and Institutions Code (WIC) 300.2)
2. Declares the intent of the Legislature to, whenever possible: preserve and strengthen a child's family ties, reunify a foster child with his or her relatives, or when family reunification is not possible or likely, to develop a permanent alternative. Further states the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting promoting normal childhood experiences that is suited to meet the child's or youth's needs and is as close to the child's family as possible, as specified. Further declares Legislative intent that all children live with a committed, permanent, and nurturing family and that services and supports should be tailored to meet the needs of the individual child and family being served, as specified. (WIC 16000)
3. Requires placement of a child in foster care to be based upon selection of a safe setting that is the least restrictive family setting that promotes normal childhood experiences and the most appropriate setting that meets the child's individual needs and is available, in proximity to the parent's home, the child's school, and best suited to meet the child's special needs and best interests. Further requires the selection of placement to consider, in order of priority, placement with relatives, nonrelated extended family members, and tribal members; foster family homes, resource families, and approved or certified homes of foster family agencies; followed by intensive services for foster homes; or multidimensional treatment foster care homes or therapeutic foster care homes; group care placements in the order of short-term residential therapeutic programs (STRTPs), group homes, community treatment facilities, and out-of-state residential treatment, as specified. (WIC 16501.1(d)(1))
4. Specifies that, if placement in an STRTP is selected for a child, the case plan must justify this placement based on the child's needs and must indicate the plan and timeline for transitioning the child to a less restrictive setting. Stipulates that this section of the case plan be reviewed and updated at least semiannually. Further, requires a child and family team meeting, as specified, to be convened by the county placing agency for the purpose of identifying the supports and services needed to achieve permanency and enable the child or youth to be placed in the least restrictive family setting that promotes normal childhood experiences. (WIC 16501.1(d)(2))
5. Requires the Department of Social Services (DSS), in consultation with county child welfare agencies and other identified stakeholders, to implement a unified, family friendly, and child-centered resource family approval process to replace the existing multiple processes for licensing foster family homes, certifying foster homes by licensed foster family agencies (FFAs), approving relatives and nonrelative extended family members as foster care providers, and approving guardians and adoptive families. Defines resource family as an individual or family that has successfully met both the home environment assessment standards and permanency assessment criteria, as specified, necessary for providing care for a child place by a public or private child placement agency by court order, or voluntarily placed by a parent or legal guardian. Requires a resource family to demonstrate an understanding of the needs of the child and role of the resource family, financial stability, and an ability and willingness to provide a family setting that promotes normal childhood experiences that serves the needs of the child, as specified. (WIC 16519.5)
6. Provides for processes regarding resource family administrative hearings and appeals. (WIC 16519.6)
7. Enumerates rights of minors and nonminors in foster care, including but not limited to the right to: live in a safe, healthy, and comfortable home where he or she is treated with respect; be free from physical, sexual, emotional, or other abuse, or corporal punishment; receive adequate and healthy food, adequate clothing, and, for youth in group homes, an allowance; receive medical, dental, vision, and mental health services; be involved in the development of his or her own case plan and plan for permanent placement; and review his or her own case plan and plan for permanent placement, if he or she is 12 years of age or older and in a permanent placement, and receive information about his or her out-of-home placement and case plan, including being told of changes to the plan. (WIC 16001.9)
8. States the intent of the Legislature that foster parents, and potential foster parents, receive training in order to assist them in being effective caregivers and to enhance the safety and growth of children placed with them. Further states the need to develop a basic curriculum, a program for continuing education, and specialized training for parents caring for children with unique needs. (Health and Safety Code 1529.1)
9. Requires foster care providers to be paid a per-child, per-month rate in return for the care of an Aid to Families with Dependent Children-Foster Care (AFDC-FC) child placed with them. (WIC 11460)

FISCAL EFFECT: Unknown.

COMMENTS:

Continuum of Care Reform: SB 1013 (Budget and Fiscal Review), Chapter 35, Statutes of 2012, realigned child welfare services to counties, placed a moratorium on the licensure of new group homes, and directed DSS to convene a working group to examine the use of group homes in California. This culminated in DSS submitting a report to the Legislature in January 2015 that contained a number of recommendations intended to reform the foster care system and reduce California's reliance on group homes as a viable placement for foster youth. These efforts were initially named "Congregate Care Reform," but were later renamed "Continuum of Care Reform" (CCR) to reflect the need to strengthen the state's system of home-based care and supports while decreasing reliance on group homes. AB 403 (Mark Stone), Chapter 773, Statutes of 2015, AB 1997 (Stone), Chapter 612, Statutes of 2016, and AB 404 (Stone), Chapter 732, Statutes of 2017, adopted many of the CCR report recommendations into law, including enacting a sunset for existing licensure, rate-setting, and other provisions for group homes and providing for a new licensure category of Short-Term Residential Therapeutic Programs (STRTPs) to offer temporary housing and intensive up-front services for youth prior to placing them with a family.

The Resource Family Approval (RFA) program is a child-centered approval process for all families seeking to care for a foster youth, regardless of whether or not the youth is related to the family. The RFA process replaces foster parent licensing and certification, relative approval, guardianship approval, and adoption. Per the RFA program, which went statewide as a part of CCR, all caregivers of children and youth will be approved to be "resource families" who can be an emergency, temporary, and/or permanent family for a youth. A key component of CCR is the recruitment and retention of a sufficient number of resource families capable of providing care and support for youth in the child welfare services system as the state moves away from use of group homes.

Need for this bill: According to the author:

"AB 404 (Stone), Chapter 732, Statutes of 2017, a lengthy and complicated piece of legislation that clarified and updated numerous components of the long-running continuum of care reform effort related to foster care placements, inadvertently included one section that potentially changes priority placements for certain subsidized childcare slots during chaptering out amendments. This inadvertent potential change has resulted in the need for further discussion on this issue. Therefore, [this bill] proposes to repeal this section. Existing law as of 2018 allows for a change in the priority of families who are eligible for certain subsidized childcare slots. [This bill] repeals this statute to revert to 2017 law."

PRIOR LEGISLATION:

AB 404 (Stone), Chapter 732, Statutes of 2017, adopted changes to further facilitate implementation of CCR recommendations to better serve children and youth in California's child welfare services system.

AB 1997 (Stone), Chapter 612, Statutes of 2016, adopted changes to further facilitate implementation of CCR recommendations adopted by AB 403 (Stone), Chapter 773, Statutes of 2015, to better serve children and youth in California's child welfare services system including, but not limited to: modifications of the RFA process; required payment of basic rate to all families regardless of approval process; and altered requirements for mental health certification of STRTPs.

AB 403 (Stone), Chapter 773, Statutes of 2015, implemented Continuum of Care Reform (CCR) recommendations to better serve children and youth in California's child welfare services system.

SB 1013 (Budget and Fiscal Review) Chapter 35, Statutes of 2012, realigned the child welfare services system to counties, established a moratorium on the licensing of new group homes, and required the Department of Social Services to convene a workgroup to discuss and recommend changes to the continuum of care within child welfare services and how to reform the use of congregate care.

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0002626

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1694

Author:(Mark Stone)

As Amended Ver:January 12, 2018

2/3 vote. Urgency

Original Committee Reference: HUM. S.

SUMMARY: Deletes language prohibiting foster care payments from being considered foster parent or child income when determining eligibility and benefit amounts for certain state or federal programs except as required by federal law, as specified, and enacts this bill as an urgency statute.

The Senate amendments delete the Assembly version of the bill, and instead:

1. Delete language prohibiting foster care payments from being considered foster parent or child income when determining eligibility and benefit amounts for certain state or federal programs except as required by federal law, as specified.
2. State that this bill is an urgency statute, as specified, thereby requiring it to go into effect immediately.

EXISTING LAW:

1. States that the purpose of foster care law is to provide maximum safety and protection for children who are being physically, sexually or emotionally abused, neglected, or exploited and to ensure the safety, protection, and physical and emotional well-being of children at risk of such harm. (Welfare and Institutions Code (WIC) 300.2)
2. Declares the intent of the Legislature to, whenever possible: preserve and strengthen a child's family ties, reunify a foster child with his or her relatives, or when family reunification is not possible or likely, to develop a permanent alternative. Further states the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting promoting normal childhood experiences that is suited to meet the child's or youth's needs and is as close to the child's family as possible, as specified. Further declares Legislative intent that all children live with a committed, permanent, and nurturing family and that services and supports should be tailored to meet the needs of the individual child and family being served, as specified. (WIC 16000)
3. Requires placement of a child in foster care to be based upon selection of a safe setting that is the least restrictive family setting that promotes normal childhood experiences and the most appropriate setting that meets the child's individual needs and is available, in proximity to the parent's home, the child's school, and best suited to meet the child's special needs and best interests. Further requires the selection of placement to consider, in order of priority, placement with relatives, nonrelated extended family members, and tribal members; foster family homes, resource families, and approved or certified homes of foster family agencies; followed by intensive services for foster homes; or multidimensional treatment foster care homes or therapeutic foster care homes; group care placements in the order of short-term residential therapeutic programs (STRTPs), group homes, community treatment facilities, and out-of-state residential treatment, as specified. (WIC 16501.1(d)(1))
4. Specifies that, if placement in an STRTP is selected for a child, the case plan must justify this placement based on the child's needs and must indicate the plan and timeline for transitioning the child to a less restrictive setting. Stipulates that this section of the case plan be reviewed and updated at least semiannually. Further, requires a child and family team meeting, as specified, to be convened by the county placing agency for the purpose of identifying the supports and services needed to achieve permanency and enable the child or youth to be placed in the least restrictive family setting that promotes normal childhood experiences. (WIC 16501.1(d)(2))
5. Requires the Department of Social Services (DSS), in consultation with county child welfare agencies and other identified stakeholders, to implement a unified, family friendly, and child-centered resource family approval process to replace the existing multiple processes for licensing foster family homes, certifying foster homes by licensed foster family agencies (FFAs), approving relatives and nonrelative extended family members as foster care providers, and approving guardians and adoptive families. Defines resource family as an individual or family that has successfully met both the home environment assessment standards and permanency assessment criteria, as specified, necessary for providing care for a child place by a public or private child placement agency by court order, or voluntarily placed by a parent or legal guardian. Requires a resource family to demonstrate an understanding of the needs of the child and role of the resource family, financial stability, and an ability and willingness to provide a family setting that promotes normal childhood experiences that serves the needs of the child, as specified. (WIC 16519.5)
6. Provides for processes regarding resource family administrative hearings and appeals. (WIC 16519.6)
7. Enumerates rights of minors and nonminors in foster care, including but not limited to the right to: live in a safe, healthy, and comfortable home where he or she is treated with respect; be free from physical, sexual, emotional, or other abuse, or corporal punishment; receive adequate and healthy food, adequate clothing, and, for youth in group homes, an allowance; receive medical, dental, vision, and mental health services; be involved in the development of his or her own case plan and plan for permanent placement; and review his or her own case plan and plan for permanent placement, if he or she is 12 years of age or older and in a permanent placement, and receive information about his or her out-of-home placement and case plan, including being told of changes to the plan. (WIC 16001.9)
8. States the intent of the Legislature that foster parents, and potential foster parents, receive training in order to assist them in being effective caregivers and to enhance the safety and growth of children placed with them. Further states the need to develop a basic curriculum, a program for continuing education, and specialized training for parents caring for children with unique needs. (Health and Safety Code 1529.1)
9. Requires foster care providers to be paid a per-child, per-month rate in return for the care of an Aid to Families with Dependent Children-Foster Care (AFDC-FC) child placed with them. (WIC 11460)

FISCAL EFFECT: Unknown.

COMMENTS:

Continuum of Care Reform: SB 1013 (Senate Committee on Budget and Fiscal Review), Chapter 35, Statutes of 2012, realigned child welfare services to counties, placed a moratorium on the licensure of new group homes, and directed DSS to convene a working group to examine the use of group homes in California. This culminated in DSS submitting a report to the Legislature in January 2015 that contained a number of recommendations intended to reform the foster care system and reduce California's reliance on group homes as a viable placement for foster youth. These efforts were initially named "Congregate Care Reform," but were later renamed "Continuum of Care Reform" (CCR) to reflect the need to strengthen the state's system of home-based care and supports while decreasing reliance on group homes. AB 403 (Stone), Chapter 773, Statutes of 2015, AB 1997 (Stone), Chapter 612, Statutes of 2016, and AB 404 (Stone), Chapter 732, Statutes of 2017, adopted many of the CCR report recommendations into law, including enacting a sunset for existing licensure, rate-setting, and other provisions for group homes and providing for a new licensure category of Short-Term Residential Therapeutic Programs (STRTPs) to offer temporary housing and intensive up-front services for youth prior to placing them with a family.

The Resource Family Approval (RFA) program is a child-centered approval process for all families seeking to care for a foster youth, regardless of whether or not the youth is related to the family. The RFA process replaces foster parent licensing and certification, relative approval, guardianship approval, and adoption. Per the RFA program, which went statewide as a part of CCR, all caregivers of children and youth will be approved to be "resource families" who can be an emergency, temporary, and/or permanent family for a youth. A key component of CCR is the recruitment and retention of a sufficient number of resource families capable of providing care and support for youth in the child welfare services system as the state moves away from use of group homes.

Need for this bill: According to the author:

"AB 404 (Stone), Chapter 732, Statutes of 2017, a lengthy and complicated piece of legislation that clarified and updated numerous components of the long-running continuum of care reform effort related to foster care placements, inadvertently included one section that potentially changes priority placements for certain subsidized childcare slots during chaptering out amendments. This inadvertent potential change has resulted in the need for further discussion on this issue. Therefore, [this bill] proposes to repeal this section. Existing law as of 2018 allows for a change in the priority of families who are eligible for certain subsidized childcare slots. [This bill] repeals this statute to revert to 2017 law."

PRIOR LEGISLATION:

AB 404 (Stone), Chapter 732, Statutes of 2017, adopted changes to further facilitate implementation of CCR recommendations to better serve children and youth in California's child welfare services system.

AB 1997 (Stone), Chapter 612, Statutes of 2016, adopted changes to further facilitate implementation of CCR recommendations adopted by AB 403 (Stone), Chapter 773, Statutes of 2015, to better serve children and youth in California's child welfare services system including, but not limited to: modifications of the RFA process; required payment of basic rate to all families regardless of approval process; and altered requirements for mental health certification of STRTPs.

AB 403 (Stone), Chapter 773, Statutes of 2015, implemented Continuum of Care Reform (CCR) recommendations to better serve children and youth in California's child welfare services system.

SB 1013 (Senate Budget and Fiscal Review) Chapter 35, Statutes of 2012, realigned the child welfare services system to counties, established a moratorium on the licensing of new group homes, and required the Department of Social Services to convene a workgroup to discuss and recommend changes to the continuum of care within child welfare services and how to reform the use of congregate care.

Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0002608

 THIRD READING  

Bill No: AB 1694

Author:

:

Vote:

PRIOR VOTES NOT RELEVANT

SENATE HUMAN SERVICES COMMITTEE: 6-0, 2/13/18 (Pursuant to Senate Rule 29.10)

AYES: Wiener, Glazer, Leyva, McGuire, Nguyen, Portantino

NO VOTE RECORDED: Berryhill

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Author

DIGEST:

This bill repeals recently enacted statutory language that excludes foster care payments from being considered income for the purpose of determining eligibility and benefits for certain educational and other programs, as permitted by federal law.

Senate Floor Amendments of 1/12/18 remove existing language in the bill and insert a repeal of the Welfare and Institution Code Section 11004.5 to reverse an inadvertent amendment.

ANALYSIS:

Existing law:

1. Establishes a system of juvenile dependency for children who are or are at risk of being physically, sexually or emotionally abused, being neglected or being exploited to ensure their safety, protection and physical and emotional well-being. (WIC 300, et seq.)
2. Requires foster care providers to be paid a per-child, per-month rate, established by the California Department of Social Services (CDSS), for the care and supervision of the child placed with the provider. (WIC 11461)
3. Prohibits foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for any state and federal programs under the Welfare and Institutions Code, Education Code or Health and Safety Code, unless required by federal law as a condition of the receipt of federal financial participation. (WIC 11004.5)
4. Establishes rules and regulations for eligibility, enrollment, and priority of services for federal and state subsidized child development services (EDC 8263) (Title 22 CCR, Section 18078).

This bill:

1. Deletes the language prohibiting foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for specified state or federal programs unless required by federal law as a condition of the receipt of federal financial participation.
2. Enacts this bill as an urgency statute, thus enabling it to take effect immediately.

Background

AB 404 (Stone, Chapter 732, Statutes of 2017) was a 243-page bill that clarified and updated numerous components of the Continuum of Care Reform effort related to foster care placements. The bill was the second clean-up bill following AB 403 (Stone, Chapter 773, Statutes of 2015) which enacted the broad reform. Language being repealed by this bill was added amid chaptering amendments and other minor clarifying amendments which were made on the Senate Floor.

Per the author, this bill repeals one section of language that was inadvertently included in AB 404, which effectively changes priority of certain subsidized child care slots by establishing a foster care income disregard. The language of this repeal does not alter current law that disregards foster care payments from counting as income in determining eligibility and benefits for other programs, which are contained in other federal and state statutes and guidelines.

Continuum of Care Reform. In January 2015, CDSS published the “California’s Child Welfare Continuum of Care Reform” report after a three-year workgroup process. The report was required by Budget Trailer Bill (SB 1013, Committee on Budget and Fiscal Review, Chapter 25, Statutes of 2012), which directed the workgroup to consider, at a minimum, reforms to programs provided by Foster Family Agencies (FFAs) and group homes. It focused on a goal of ensuring that the provision of services occurs in family-like settings, including after-care services, when appropriate. The report outlined an approach to reforming California’s child welfare system by improving assessments of children and families, emphasizing home-based family placements of foster children, and changing the goals of congregate care placements. “Children should live in their communities in home-based family care settings,” the report noted. Underpinning the change in service delivery is the belief that “all children, including those in out-of-home care, deserve to grow up in families and develop a sense of community.”

AB 403 was the first in a series of massive reform bills to implement these reforms. It established a sunset for existing licensure, rate setting and other provisions for group homes and establishes interim rates. It created a category for licensure of Short Term Residential Treatment Centers and required CDSS to develop a new payment structure for the short term treatment homes and FFAs. The homes were subsequently renamed Short Term Residential Therapeutic Programs (STRTP). The following year, AB 1997 (Mark Stone, Chapter 612, Statutes of 2016) clarified the requirements for STRTPs to obtain county mental health certifications to provide appropriate services, established additional protocols around the Resource Family Approval process, and made changes to the rates paid to foster families. Last year, AB 404 required CDSS to develop an intensive services foster care program to serve children with specific health and behavioral health needs, modified the Resource Family Approval Process and made other changes to the Continuum of Care Reform.

Childcare Priority Lists. California’s subsidized childcare system has been historically underfunded, with wait lists several times longer than the number of existing slots in some areas of the state. Statewide, there are approximately 60,000 subsidized slots in general child care and the Alternative Payment Program voucher system for low income families. There are approximately 170,000 additional subsidized slots in full-day or part-day preschool, according to the Legislative Analyst’s Office. The system is so over-subscribed that in 2016, the state Department of Education requested that Alternative Payment childcare agencies suspend enrolling additional families if they are over their contracted funding.

Priorities for childcare slots are set in statute and defined in regulations. Families must be income eligible, homeless, a current aid recipient or the children must be recipients of protective services, such as foster care. First priority for federal and state preschool is given to neglected or abused children who are recipients of child protective services, as specified. If an agency is unable to enroll a child in the first priority category, the family is referred to a local referral agency to locate services for the child.

Income disregard. In determining priority for childcare slots within a referral agency, which are need-based, state regulations define what income must be calculated. For foster families, income of the foster parents is disregarded. However, regulations dictate that the foster care payment is calculated as income. Currently, the basic foster care payment is $889 per child per month. The language inserted in AB 404, maintained the disregard of the foster care payment and required that the foster care payment also be disregarded, potentially leaving with foster families showing no recorded income and moving them to the top of the priority list. Advocates for other low-income working families, have argued this unfairly shuffles the prioritization list.

Advocates have proposed various statutory changes to address the child care needs of foster families; however it has been difficult to balance the need to provide child care to working families and the need to provide child care to foster parents. The 2017 Human Services Budget Trailer Bill (SB 89, Committee on Budget and Fiscal Review, Chapter 24, Statutes of 2017) enacted the Emergency Child Care Bridge Program for Foster Children, which sought to resolve barriers to placing children with relatives and nonrelatives by establishing emergency child care funding and resources. The $15.5 million program includes emergency child care vouchers for time-limited child care, a child care navigator for eligible foster families to help find a longer term child care provider and complete necessary paperwork. Child care programs participating in the Bridge Program also may receive trauma-informed care training in infant and toddler development and related issues.

At the same time the Bridge proposal was being considered, the Senate Committee on Budget and Fiscal Review heard a proposal to disregard a family’s foster care payment from the calculation for eligibility, similar to the language that was added to AB 404. That proposal was not adopted, as further discussion was needed to work through elements of the language.

Comments

The repeal of this language reverts statute to the requirements in effect on December 31, 2017. It does not change the requirement to disregard foster care income for purpose of calculating other benefits, such as CalWORKs, CalFresh and other programs. It is solely intended to reverse the inadvertent change to childcare prioritization contained in AB 404.

Related/Prior Legislation

SB 89 (Budget and Fiscal Review Committee, Chapter 24, Statutes of 2017) enacted the Emergency Child Care Bridge Program to provide access to child care for foster families immediately upon placement of a child.

AB 404 (Stone, Chapter 732, Statutes of 2017) made changes to the Continuum of Care Reform effort, including requiring development of intensive services foster care. It also included language that changed the prioritization of child care for foster parents, which is being repealed by this bill.

AB 1997 (Stone, Chapter 612, Statutes of 2016) clarified requirements for STRTPs to obtain county mental health certifications, made changes to the rates paid to foster families, and other changes to the Continuum of Care Reform.

AB 403 (Stone, Chapter 773, Statutes of 2015) established the Continuum of Care Reform by sunsetting existing licensure, rate setting and other provisions for group homes and creating new models of care.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 3/7/18)

None received

OPPOSITION: (Verified 3/7/18)

None received

ARGUMENTS IN SUPPORT: According to the author, this bill corrects language enacted in AB 404 which “inadvertently included one section that potentially changes priority placements for certain subsidized childcare slots during chaptering out amendments. This inadvertent potential change has resulted

in the need for further discussion on this issue. Therefore, AB 1694 proposes to repeal this section.”

Prepared by:

3/7/18 15:35:34

**** END ****

SENATE COMMITTEE ON HUMAN SERVICES

Senator Wiener, Chair

2017 - 2018 Regular

Bill No: AB 1694

Subject: Foster care payments: income

SUMMARY

This bill repeals recently enacted statutory language that excludes foster care payments from being considered income for the purpose of determining eligibility and benefits for certain educational and other programs, as permitted by federal law.

ABSTRACT

Existing law:

1. Establishes a system of juvenile dependency for children who are or are at risk of being physically, sexually or emotionally abused, being neglected or being exploited to ensure their safety, protection and physical and emotional well-being. (WIC 300, et seq.)
2. Requires foster care providers to be paid a per-child, per-month rate, established by the California Department of Social Services (CDSS), for the care and supervision of the child placed with the provider. (WIC 11461)
3. Prohibits foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for any state and federal programs under the Welfare and Institutions Code, Education Code or Health and Safety Code, unless required by federal law as a condition of the receipt of federal financial participation. (WIC 11004.5)
4. Establishes rules and regulations for eligibility, enrollment, and priority of services for federal and state subsidized child development services (EDC 8263) (Title 22 CCR, Section 18078).

This bill:

1. Deletes the language prohibiting foster care payments from being considered income of the foster parent or child for purposes of determining eligibility and benefits for specified state or federal programs unless required by federal law as a condition of the receipt of federal financial participation.
2. Enacts this bill as an urgency statute, thus enabling it to take effect immediately.

FISCAL IMPACT

This bill has not been analyzed by a fiscal committee.

BACKGROUND AND DISCUSSION

Purpose of the bill:

Per the author, this bill repeals one section of language that the author inadvertently included in AB 404 (Stone, Chapter 732, Statutes of 2017), and that effectively may change priority of certain subsidized child care slots by including a foster care income disregard that the Department of Education currently does not use. The language repeal does not alter current law that disregards foster care payments from counting as income in determining eligibility and benefits for specified programs, which are contained in certain federal and state statutes and guidelines.

AB 404 was a 243-page bill that clarified and updated numerous components of the continuum of care reform effort related to foster care placements. The bill was the second clean-up bill following AB 403 (Stone, Chapter 773, Statutes of 2015) which enacted the broader Continuum of Care Reform effort. Language being repealed by this bill was added with chaptering amendments and other minor clarifying amendments which were made on the Senate floor.

According to the author, the bill “inadvertently included one section that potentially changes priority placements for certain subsidized childcare slots during chaptering out amendments. This inadvertent potential change has resulted in the need for further discussion on this issue. Therefore, AB 1694 proposes to repeal this section.”

Continuum of Care Reform

In January 2015, CDSS published the “California’s Child Welfare Continuum of Care Reform” report after a three-year workgroup process. The report was required by a budget trailer bill (SB 1013, Chapter 25, Statutes of 2012), which directed the workgroup to consider, at a minimum, reforms to programs provided by Foster Family Agencies and group homes. It focused on a goal of ensuring that the provision of services occurs in family-like settings, including after-care services, when appropriate. The report outlined an approach to reforming California’s child welfare system by improving assessments of children and families, emphasizing home-based family placements of foster children, and changing the goals of congregate care placements. “Children should live in their communities in home-based family care settings,” the report noted. Underpinning the change in service delivery is the belief that “all children, including those in out-of-home care, deserve to grow up in families and develop a sense of community.”

AB 403 (Mark Stone, Chapter 773, Statutes of 2015) was the first in a series of massive reform bills to implement these reforms. It established a sunset for existing licensure, rate setting and other provisions for group homes and establishes interim rates. It created a category for licensure of Short Term Residential Treatment Centers and required CDSS to develop a new payment structure for the short term treatment homes and FFAs. The homes were subsequently renamed Short Term Residential Therapeutic Programs (STRTP). The following year, AB 1997 (Mark Stone, Chapter 612, Statutes of 2016) clarified the requirements for STRTPs to obtain county mental health certifications to provide appropriate services, established additional protocols around the Resource Family Approval process, and made changes to the rates paid to foster families. Last year, AB 404 required CDSS to develop an intensive services foster care program to serve children with specific health and behavioral health needs, modified the Resource Family Approval Process and made other changes to the Continuum of Care Reform.

Childcare priority lists

California’s subsidized childcare system has been historically underfunded, with wait lists several times longer than the number of existing slots in some areas of the state. Statewide, there are approximately 60,000 subsidized slots in general child care and the Alternative Payment Program voucher system for low income families. There are approximately 170,000 additional subsidized slots in full-day or part-day preschool, according to the Legislative Analyst’s Office. The system is so over-subscribed that in 2016, the state Department of Education requested that Alternative Payment childcare agencies suspend enrolling additional families if they are over their contracted funding.

Priorities for childcare slots are set in statute and defined in regulations. Families must be income eligible, homeless, a current aid recipient or the children must be recipients of protective services, such as foster care. First priority for federal and state preschool is given to neglected or abused children who are recipients of child protective services, as specified. If an agency is unable to enroll a child in the first priority category, the family is referred to a local referral agency to locate services for the child.

In determining priority for childcare slots within a referral agency, which are need-based, state regulations define what income must be calculated. Under the current implementation of state regulations for foster families, the income of the foster parents is disregarded. However, the foster care payment is calculated as income. Currently, the basic foster care payment is $889 per child per month. A change to current practices that instead eliminated consideration of the foster care payment as well would potentially leave some foster families showing no recorded income, moving them to the top of the priority list. Advocates for other low-income working families, have argued this unfairly shuffles the prioritization list.

Advocates have proposed various statutory changes to address the child care needs of foster families; however, it has been difficult to balance the need to provide child care to working families and the need to provide child care to foster parents. The 2017 Human Services budget trailer bill (SB 89, Committee on Budget and Fiscal Review, Statutes of 2017) enacted the Emergency Child Care Bridge Program for Foster Children, which sought to resolve barriers to placing children with relatives and nonrelatives by establishing some emergency child care funding and resources. The $15.5 million program includes emergency child care vouchers for time-limited child care, and a child care navigator for eligible foster families to help find a longer term child care provider and complete necessary paperwork. Child care programs participating in the Bridge Program also may receive trauma-informed care training in infant and toddler development and related issues.

At the same time the Bridge proposal was being considered, the Senate budget committee heard a proposal that was similar to the language that was added to AB 404 and that this bill proposes to repeal. That proposal was not adopted, and further discussion was anticipated.

Related legislation:

SB 89 (Budget and Fiscal Review, Chapter 24, Statutes of 2017) enacted the Emergency Child Care Bridge Program to provide access to child care for foster families immediately upon placement of a child.

AB 404 (Stone, Chapter 732, Statutes of 2017) made changes to the Continuum of Care Reform effort, including requiring development of intensive services foster care. It also included language that changed the prioritization of child care for foster parents, which is being repealed by this bill.

AB 1997 (Stone, Chapter 612, Statutes of 2016) clarified requirements for Short Term Residential Therapeutic Programs (STRTPs) to obtain county mental health certifications, made changes to the rates paid to foster families, and other changes to the Continuum of Care Reform.

AB 403 (Stone, Chapter 773, Statutes of 2015) established the Continuum of Care Reform by sunsetting existing licensure, rate setting and other provisions for group homes and creating new models of care.

Comments:

The repeal of this language reverts statute to the requirements in effect on Dec. 31, 2017. It does not change the requirement to disregard foster care income for purpose of calculating other benefits, such as CalWORKs, CalFresh and other programs. It is solely intended to reverse the author’s inadvertent language change in AB 404.

POSITIONS

Support: None received

Oppose: None received

-- END --

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1694

Author:(Committee on Judiciary)

As Amended Ver:June 5, 2017

Majority vote

Original Committee Reference: JUD.

SUMMARY: Names the Ralph Civil Rights Act and the Tom Bane Civil Rights Act in order to distinguish them from the Unruh Civil Rights Act. Specifically, this bill finds and declares that Civil Code Section 51.7 was enacted as part of the Ralph Civil Rights Act, and that Civil Code Section 52.1 was enacted as part of the Tom Bane Civil Rights Act.

The Senate amendments specify that Civil Code Section 52.1 was enacted as part of the Tom Bane Civil Rights Act and make other technical changes.

EXISTING LAW:

1. Provides pursuant to the Ralph Civil Rights Act of 1976 that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civil Code Section 51.7.)
2. Provides pursuant to the Unruh Civil Rights Act that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code Section 51.)
3. Prohibits a person from interfering, by means of threat, intimidation, or coercion, with an individual in the exercise or enjoyment of any rights secured by the laws or constitution of the United States or by the laws or constitution of California. (Civil Code Section 52.1.)

FISCAL EFFECT: None

COMMENTS: California's primary civil rights statutes include the Unruh Civil Rights Act, the Tom Bane Civil Rights Act, and the Ralph Civil Rights Act. These laws deal with related but distinct issues and have overlapping but unique application to various kinds of disputes. Because they are codified near each other, litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act and Bane Act are part of the Unruh Act. This confusion is natural because Civil Code Section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification at the beginning of the Ralph Act (at section 51.7) or the Bane Act (at Section 52.1.) Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion of the courts, litigants, and the public, consistent with the advice of a recent appeals court decision.

Specifically, the Second District Court of Appeal observed that misunderstandings of the Unruh, Ralph, and Bane Acts have been common among courts and parties. Because the court so clearly stated the issue and provided examples, the relevant portion of the opinion is reproduced below: As the court noted: "Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance. (Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441.)

According to the author, this non-controversial measure, taking its cue from the California Court of Appeals for the Second District, "simply clarifies that Civil Code Section 51.7 constitutes the Ralph Civil Rights Act, and that Civil Code Section 52.1 constitutes the Tom Bane Civil Rights Act, and that both are separate and independent of the Unruh Civil Rights Act. As the Second Circuit Court of Appeal noted in Stamps v. Superior Court (2006), a lack of clarity about whether the Ralph Act is part of the Unruh Act has been a source of confusion among some courts and litigants about, for example, the applicable statute of limitations.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0000999 FN:

 CONSENT  

Bill No: AB 1694

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 6/13/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

ASSEMBLY FLOOR: 68-0, 4/6/17 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill clarifies existing law and avoids legal confusion by explicitly identifying the Ralph and Tom Bane Civil Rights Acts in the Civil Code, thus distinguishing them from their Civil Code neighbor, the Unruh Civil Rights Act. This bill also makes conforming changes to cross references in the Insurance Code.

ANALYSIS:

Existing law:

1. Provides, as set forth in the Unruh Civil Rights Act, that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code Sec. 51.)
2. Declares that Section 51 of the Civil Code shall be known, and may be cited, as the Unruh Civil Rights Act. (Civ. Code Sec. 51(a).)
3. Provides, as set forth in the Ralph Civil Rights Act of 1976, that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civ. Code Sec. 51.7.)
4. Does not say, within the codified text of Section 51.7 of the Civil Code, that that Section shall be known, and may be cited as, the Ralph Civil Rights Act.
5. Creates, as set forth in the Tom Ban Civil Rights Act, a civil cause of action for violation of constitutional rights. (Civ. Code Sec. 52.1)
6. Does not say, within the codified text of Section 52.1 of the Civil Code, that that Section shall be known, and may be cite as, the Ralph Civil Rights Act.
7. Holds that Section 51.7 of the Civil Code is part of the Ralph Civil Rights Act and is not part of the Unruh Civil Rights Act. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1451.)
8. Holds that Section 52.1 of the Civil Code is part of the Tom Bane Civil Rights Act and is not part of the Unruh Civil Rights Act. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1451.)

This bill:

1. Finds and declares that Section 51.7 of the Civil Code was enacted as part of the Ralph Civil Rights Act of 1976 and that Section 51.7 shall be known, and may be cited as the Ralph Civil Rights Act of 1976.
2. Declares that Section 52.1 of the Civil Code was enacted as part of the Tom Bane Civil Rights Act of 1976 and that Section 52.1 shall be known, and may be cited as the Tom Bane Civil Rights Act.
3. Makes conforming changes to Insurance Code Section 1816.03(a).

Background

Division I, Part II of the California Civil Code includes Sections 43 through 53.7. It is comprised of laws relating to personal rights, including several code sections addressing civil rights protections. Some of these code sections are named after a specific individual, either because the enacting legislation was so named, or because the Legislature subsequently gave the code section a name to honor a particular individual.

The colloquial names of these code sections are not always explicitly set forth in the code section, however, and this discrepancy sometimes breeds confusion among courts and litigants, especially because these code sections are located near one another in the Civil Code and deal with highly related issues.

Specifically, in 1959, the California Legislature named Civil Code Section 51 after then Assemblymember Jesse Unruh, who authored the legislation, by including the current subdivision (a), which states: “This section shall be known, and may be cited, as the Unruh Civil Rights Act.” (AB 594, Unruh, Chapter 1866, Statutes of 1959.) By contrast, the Legislature enacted Civil Code Section 51.7 as part of a piece of legislation known as the Ralph Civil Rights Act, but nothing in Section 51.7 indicates that it shall be known or cited as such. (AB 2986, Ralph, Chapter 1293, Statutes of 1976.) Similarly, Civil Code Section 52.1 was added by legislation known as the Tom Bane Civil Rights Act, but nothing in the text of Section 52.1 itself so indicates. (AB 63, Bane, Chapter 1277, Statutes of 1987.) As a result, people perusing this part of the Civil Code have no textual indication that they are reading the Tom Bane Civil Rights Act and the Ralph Civil Rights Act in addition to the Unruh Civil Rights Act.

Courts, litigants, and proposition drafters have been confused as a result. As the Second Appellate District California Court of Appeal wrote in Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744:

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: “This section shall be known and may be cited, as the Unruh Civil Rights Act.” (Italics added.) The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. (Gatto, supra, at 757. Italics in original except as noted.)

In Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, the California Court of Appeal for the Second District addressed this confusion. After a comprehensive review of the legislative history behind the Ralph, Tom Bane, and Unruh Civil Rights Act, the Stamps court concluded that neither the Tom Bane nor the Ralph Civil Rights Acts are part of the Unruh Civil Rights Act. (Id. at 1451.)

Subsequently, at least two state and three federal court opinions have directly affirmed the Stamps holding with regard to the distinction between the Ralph, Tom Bane, and Unruh Civil Rights Acts, without dissent as to that point. (See Macias v. Lange, 2016 U.S. Dist. LEXIS 44907; Pinzon v. Jensen, 2009 U.S. Dist. LEXIS 108962; Cartwright v. Univ. of Cal., 2006 U.S. Dist. LEXIS 91275; Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269; Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1485.)

The textual omission that sparks the confusion among these statutes remains, however. Moreover, a similar omission produces the same potential for confusion in relation to the Tom Bane Civil Rights Act, codified at Civil Code Section 52.1.

This bill eliminates these sources of confusion, by inserting text into Section 52.1 of the Civil Code indicating that it is the Tom Bane Civil Rights Act and inserting similar text into Section 57.1 of the Civil Code indicating that it is part of the Ralph Civil Rights Act. Finally, to further reduce any possible confusion, this bill makes conforming changes to a cross reference in the Insurance Code.

Related/Prior Legislation

AB 63 (Bane, Chapter 1277, Statutes of 1987) created a civil cause of action for violation of constitutional rights.

AB 2986 (Ralph, Chapter 1293, Statutes of 1976) provided that all Californians have the right to be free from any discriminatory violence, or intimidation by threat of violence.

AB 594 (Unruh, Chapter 1866, Statutes of 1959), known as the Unruh Civil Rights Act, prohibited discrimination in public accommodations.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/14/17)

None received

OPPOSITION: (Verified 6/14/17)

None received

ARGUMENTS IN SUPPORT: According to the author:

This non-controversial measure, taking its cue from the California Court of Appeals for the Second District, simply clarifies that Section 51.7 of the Civil Code constitutes the Ralph Civil Rights Act, and that it is separate from and independent of the Unruh Civil Rights Act. As the Second Circuit Court of Appeal noted in Stamps v. Superior Court (2006), a lack of clarity about whether the Ralph Act is part of the Unruh Act has been a source of confusion among some courts and litigants about, for example, the applicable statute of limitations. While hardly the most pressing issue in the state, this bill will simply follow the court’s suggestion to appropriately identify the Ralph Act.

ASSEMBLY FLOOR: 68-0, 4/6/17

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bocanegra, Bonta, Burke, Caballero, Calderon, Cervantes, Chau, Chávez, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dababneh, Dahle, Daly, Eggman, Fong, Frazier, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gomez, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Ridley-Thomas, Rodriguez, Rubio, Salas, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Weber, Wood

NO VOTE RECORDED: Brough, Chen, Flora, Gallagher, Harper, Mayes, Melendez, Obernolte, Patterson, Santiago, Waldron, Rendon

Prepared by:

6/14/17 15:57:00

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 1694 (Author:Committee on Judiciary)

Version: June 5, 2017

Hearing Date: June 13, 2017

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Civil rights

DESCRIPTION

This bill would clarify existing law and avoid legal confusion by explicitly identifying the Ralph Civil Rights Act in the Civil Code, thus distinguishing it from its Civil Code neighbor, the Unruh Civil Rights Act.

BACKGROUND

Division I, Part II of the California Civil Code includes Sections 43 through 53.7. It is comprised of laws relating to personal rights, including several code sections addressing civil rights protections. Some of these code sections are named after a specific individual, either because the enacting legislation was so named, or because the Legislature subsequently gave the code section a name to honor a particular individual.

The colloquial names of these code sections are not always explicitly set forth in the code section, however, and this discrepancy sometimes breeds confusion among courts and litigants, especially because these code sections are located near one another in the Civil Code and deal with highly related issues.

Specifically, in 1959, the California Legislature named Civil Code Section 51 after then Assemblymember Jesse Unruh, who authored the legislation, by including the current subdivision (a), which states: “This section shall be known, and may be cited, as the Unruh Civil Rights Act.” (AB 594, Unruh, Ch. 1866, Stats. 1959.) By contrast, the Legislature enacted Civil Code Section 51.7 as part of a piece of legislation known as the Ralph Civil Rights Act, but nothing in Section 51.7 indicates that it shall be known or cited as such. (AB 2986, Ralph, Ch. 1293, Stats. 1976.) Similarly, Civil Code Section 52.1 was added by legislation known as the Tom Bane Civil Rights Act, but nothing in the text of Section 52.1 itself so indicates. (AB 63, Bane, Ch. 1277, Stats. 1987.) As a result, people perusing this part of the Civil Code have no textual indication that they are reading the Bane Civil Rights Act and the Ralph Civil Rights Act in addition to the Unruh Civil Rights Act.

Courts, litigants, and proposition drafters have been confused as a result. As the Second Appellate District California Court of Appeal wrote in Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744:

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: “This section shall be known and may be cited, as the Unruh Civil Rights Act. (Italics added.) The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. (Gatto, supra, at 757. Italics in original except as noted.)

In Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, the California Court of Appeal for the Second District addressed this confusion. After a comprehensive review of the legislative history behind the Ralph, Bane, and Unruh Civil Rights Act, the Stamps court concluded that neither the Bane nor the Ralph Civil Rights Acts are part of the Unruh Civil Rights Act. (Id. at 1451.)

Subsequently, at least two state and three federal court opinions have directly affirmed the Stamps holding with regard to the distinction between the Ralph, Bane, and Unruh Civil Rights Acts, without dissent as to that point. (See Macias v. Lange, 2016 U.S. Dist. LEXIS 44907; Pinzon v. Jensen, 2009 U.S. Dist. LEXIS 108962; Cartwright v. Univ. of Cal., 2006 U.S. Dist. LEXIS 91275; Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 269; Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1485.)

The textual omission that sparks the confusion among these statutes remains, however. This bill would fix this omission, as to the Ralph Civil Rights Act, by inserting text finding that Section 57.1 of the Civil Code is part of the Ralph Civil Rights Act.

CHANGES TO EXISTING LAW

Existing law, as set forth in the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code Sec. 51.)

Existing law declares that Section 51 of the Civil Code shall be known, and may be cited, as the Unruh Civil Rights Act.

Existing law, as set forth in the Ralph Civil Rights Act of 1976, provides that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civ. Code Sec. 51.7.)

Existing law does not say, within the codified text of Section 51.7 of the Civil Code, that that Section shall be known, and may be cited as, the Ralph Civil Rights Act.

Existing law holds that Section 51.7 of the Civil Code is part of the Ralph Civil Rights Act and is not part of the Unruh Civil Rights Act. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1451.)

This bill would find and declare that Section 51.7 of the Civil Code was enacted as part of the Ralph Civil Rights Act of 1976.

COMMENT

1. Stated need for the bill

According to the author:

This non-controversial measure, taking its cue from the California Court of Appeals for the Second District, simply clarifies that Section 51.7 of the Civil Code constitutes the Ralph Civil Rights Act, and that it is separate from and independent of the Unruh Civil Rights Act. As the Second Circuit Court of Appeal noted in Stamps v. Superior Court (2006), a lack of clarity about whether the Ralph Act is part of the Unruh Act has been a source of confusion among some courts and litigants about, for example, the applicable statute of limitations. While hardly the most pressing issue in the state, this bill will simply follow the court’s suggestion to appropriately identify the Ralph Act.

2. Significance of distinguishing between the Unruh and Ralph Civil Rights Acts

Clarifying whether the Ralph Civil Rights Act is subsumed within the Unruh Civil Rights Act or stands on its own matters because the California Supreme Court has ruled that Unruh Civil Rights Act claims do not apply in employment cases. (Rojo v. Kilger (1990) 52 Cal.3d 65.) If Section 51.7 is part of the Unruh Civil Rights Act, therefore, plaintiffs cannot prevail on a cause of action under Section 51.7 in the employment context. If Section 51.7 is not part of the Unruh Civil Rights Act, then such a cause of action would be viable. This bill clarifies that the latter interpretation is correct: Section 51.7 is separate from the Unruh Civil Rights Act; it is part of the Ralph Civil Rights Act.

While this bill would clarify the point in the codes, it is not the source of the distinction. As the author notes, the Second District of the California Court of Appeal’s decision in Stamps v. Superior Court (2006) 136 Cal.App.4th 1441 held that the Ralph Civil Rights Act is distinct and separate from the Unruh Civil Rights Act. This bill would merely spell out that holding within the text of Civil Code 51.7.

3. Author’s amendments made after passage in the Assembly

As it emerged from the Assembly, this bill helpfully made the distinction between the Unruh Civil Rights Act and the Ralph Civil Rights Act. As the Stamps court pointed out, however, the confusion around the scope of the Unruh Civil Rights Act goes beyond the Ralph Civil Rights Act.

First, the Bane Civil Rights Act, codified at Civil Code Section 52.1, suffers from the same problem as the Ralph Civil Rights Act and was also covered by the holding in Stamps. Accordingly, the author has amended this bill to add provisions explicitly naming the Bane Civil Rights Act within the text of Section 52.1 as well.

Second, the Stamps court pointed out that Insurance Code Section 1816.03(a) further muddies the waters by making a reference to Civil Code Sections 51-53, inclusive, and referring to them collectively as the Unruh Civil Rights Act. Since only Section 51 is the Unruh Civil Rights Act, the author has amended this bill to remove the erroneous reference to the Unruh Civil Rights Act, thus eliminating a source of confusion without changing the substantive law.

Finally, in keeping with the clarifying and ease-of-reading nature of this bill, the author has amended this bill so that the language naming the Ralph Civil Rights Act and the Tom Bane Civil Rights Act match the language naming the Unruh Civil Rights Act, structurally. In other words, whereas the bill that emerged from the Assembly would have buried a subdivision well into Section 57.1 reading “[t]he Legislature finds and declares that this section was enacted as part of the Ralph Civil Rights Act of 1976, in Chapter 1293 of the Statutes of 1976,” as amended, the bill now creates textual signposts at the beginning of each section, similar to the one that stands at the start of the Unruh Civil Rights Act. These signposts alert readers that each section shall be known and may be cited by its respective colloquial name.

Support: None known

Opposition: None known

HISTORY

Source: Assembly Committee on the Judiciary

Related Pending Legislation: None known

Prior Legislation:

AB 63 (Bane, Chapter 1277, Statutes of 1987) created a civil cause of action for violation of constitutional rights.

AB 2986 (Ralph, Chapter 1293, Statutes of 1976) provided that all Californians have the right to be free from any discriminatory violence, or intimidation by threat of violence.

AB 594 (Unruh, Chapter 1866, Statutes of 1959), known as the Unruh Civil Rights Act, prohibited discrimination in public accommodations.

Prior Vote:

Assembly Floor (Ayes 68, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 1694

Author:(Committee on Judiciary)

As Introduced Ver:February 27, 2017

Majority vote

SUMMARY: Clarifies the Ralph Civil Rights Act. Specifically, this bill finds and declares that Civil Code Section 51.7 was enacted as part of the Ralph Civil Rights Act of 1976, in AB 2986 (Ralph), Chapter 1293, Statutes of 1976.

EXISTING LAW:

1. Provides pursuant to the Ralph Civil Rights Act of 1976 that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civil Code Section 51.7.)
2. Provides pursuant to the Unruh Civil Rights Act that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code Section 51.)

FISCAL EFFECT: None.

COMMENTS: California's primary civil rights statutes include the Unruh Civil Rights Act and the Ralph Civil Rights Act. These laws deal with related but distinct issues and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – Civil Code Sections 51 and 51.7 – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because Civil Code Section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification at the beginning of the Ralph Act (at section 51.7). Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion of the courts, litigants, and the public, consistent with the advice of a recent appeals court decision.

This Bill Would Address Confusion That An Appeals Court Has Noted Among Courts and Parties: In Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441, the Second District Court of Appeal has observed that misunderstandings of the Unruh and Ralph Acts have been common among courts and parties. Because the court so clearly stated the issue and provided examples, the relevant portion of the opinion is reproduced below:

The parties vigorously debate whether the sections under consideration are or are not part of the [Unruh] Act. Before we reach our destination, we gently observe a point that is beyond controversy: The courts generally have done a poor job of describing the various components of the Act. Not until 2002 did an appellate court tackle the issue head on. In Gatto, supra, 98 Cal.App.4th 744, the court was confronted with determining the statute of limitations for actions under sections 51 and 51.7. The case had nothing to do with employment discrimination; rather, a Hell's Angel was ejected from a county fair for not removing his motorcycle club vest. The court refused to assume that the statutes of limitations for the two sections were necessarily the same. Instead, it initially reflected on the lack of precision in describing the components of the Act.

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: "This section shall be known, and may be cited, as the Unruh Civil Rights Act." The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. West Shield is a good example. That case presented no claim of denial of full and equal accommodations in violation of section 51; however, the court treated causes of action alleging interference with the exercise of constitutional rights under section 52.1, and sexual harassment under section 51.9 as Unruh Civil Rights Act claims. Similarly, section 51.9 was treated as an 'Unruh Civil Rights Act claim' in Brown v. Smith (1997) 55 Cal.App.4th 767, 774–775 as was section 54.1 in Independent Housing Services (1993) 840 F. Supp. 1328. Citing several state and federal opinions, the court in Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F. Supp. 1560 stated that '[i]t appears that section 52.1 is at least a "component" of the Unruh Civil Rights Act.' (Id. at p. 1581.) It is noteworthy, however, that in construing section 52.1, our Supreme Court explained that it was enacted by the Legislature 'to stem a tide of hate crimes' (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338) and never referred to it as part of the Unruh Civil Rights Act which, at least originally, dealt only with the issue of equal accommodations. Other courts have referred to section 52.1 and related statutes, including section 51.7, as part of the Bane Act. (See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144; Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809.) In re Joshua H. (1993) 13 Cal.App.4th 1734 also refers to section 52.1 as part of the Bane Act but refers to section 51.7 as the 'Ralph Civil Rights Act.' (Boccato, supra, at p. 1748, fn. 9.)

Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance. (Gatto, supra, 98 Cal.App.4th 744, 757–758.)

Although the Gatto court does not unequivocally hold that sections 51.7 and 52.1 are not part of the Act, we are not so reserved: We conclude neither section is part of a properly denominated Act. This conclusion is based largely on the legislative history that we have described ante and is consistent with that reached by two commentators in the civil rights litigation field. Their treatise devotes entire sections to two subjects: "Ralph Act is not part of the Unruh Act or FEHA," and "Bane Act is not part of the Unruh Act, the Ralph Act or another statute." (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation (2005) Section 314, p. 27, Section 327, p. 50.)

According to the author, this non-controversial measure, taking its cue from the California Court of Appeals for the Second District, "simply clarifies that Civil Code Section 51.7 constitutes the Ralph Civil Rights Act, and that it is separate and independent of the Unruh Civil Rights Act. As the Second Circuit Court of Appeal noted in Stamps v. Superior Court (2006), a lack of clarity about whether the Ralph Act is part of the Unruh Act has been a source of confusion among some courts and litigants about, for example, the applicable statute of limitations. While hardly the most pressing issue in the state, this bill will simply follow the court's suggestion to appropriately identify the Ralph Act."

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0000080

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1694

Author:(Committee on Judiciary) – As Introduced Ver:February 27, 2017

SUBJECT: Civil rights

KEY ISSUE: SHOULD THE RALPH CIVIL RIGHTS ACT BE CLARIFIED TO PREVENT FURTHER CONFUSION AMONG PARTIES AND THE COURTS?

SYNOPSIS

California's primary civil rights statutes include, among others, the Unruh Civil Rights Act (prohibiting discrimination on the basis of certain protected characteristics in business establishments) and the Ralph Civil Rights Act (prohibiting violence or intimidation against another based on protected characteristics). These laws deal with related but distinct issues, and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – sections 51 and 51.7 of the Civil Code – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification of the Ralph Act that begins at section 51.7. Therefore, a reader may fail to note that one act has concluded and another has begun. While this lack of distinction between the statutes may not be a problem in and of itself, California's Second District Court of Appeal has noted that, on occasion, an assumption that the Ralph Act is part of the Unruh Act has created confusion, including over the applicable statute of limitations. Following the suggestion of the Second District Court of Appeal, this bill would simply clarify Section 51.7 constitutes Ralph Act, as distinct from the Unruh Act, in order to prevent further confusion among litigants, courts, and the public. There is no known opposition to this non-controversial bill.

SUMMARY: Clarifies the Ralph Civil Rights Act. Specifically, this bill finds and declares that section 51.7 of the Civil Code was enacted as part of the Ralph Civil Rights Act of 1976, in Chapter 1293 of the Statutes of 1976.

EXISTING LAW:

1. Provides pursuant to the Ralph Civil Rights Act of 1976 that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civil Code section 51.7.)
2. Provides pursuant to the Unruh Civil Rights Act that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code section 51.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: California's primary civil rights statutes include the Unruh Civil Rights Act and the Ralph Civil Rights Act. These laws deal with related but distinct issues and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – sections 51 and 51.7 of the Civil Code – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification at the beginning of the Ralph Act (at section 51.7). Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion of the courts, litigants, and the public, consistent with the advice of a recent appeals court decision.

This Bill Would Address Confusion That An Appeals Court Has Noted Among Courts and Parties: In Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441, the Second District Court of Appeal has observed that misunderstandings of the Unruh and Ralph Acts have been common among courts and parties. Because the court so clearly stated the issue and provided examples, the relevant portion of the opinion is reproduced below:

The parties vigorously debate whether the sections under consideration are or are not part of the [Unruh] Act. Before we reach our destination, we gently observe a point that is beyond controversy: The courts generally have done a poor job of describing the various components of the Act. Not until 2002 did an appellate court tackle the issue head on. In Gatto, supra, 98 Cal.App.4th 744, the court was confronted with determining the statute of limitations for actions under sections 51 and 51.7. The case had nothing to do with employment discrimination; rather, a Hell's Angel was ejected from a county fair for not removing his motorcycle club vest. The court refused to assume that the statutes of limitations for the two sections were necessarily the same. Instead, it initially reflected on the lack of precision in describing the components of the Act.

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: "This section shall be known, and may be cited, as the Unruh Civil Rights Act." The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. West Shield is a good example. That case presented no claim of denial of full and equal accommodations in violation of section 51; however, the court treated causes of action alleging interference with the exercise of constitutional rights under section 52.1, and sexual harassment under section 51.9 as Unruh Civil Rights Act claims. Similarly, section 51.9 was treated as an ‘Unruh Civil Rights Act claim’ in Brown v. Smith (1997) 55 Cal.App.4th 767, 774–775 as was section 54.1 in Independent Housing Services (1993) 840 F. Supp. 1328. Citing several state and federal opinions, the court in Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F. Supp. 1560 stated that ‘[i]t appears that section 52.1 is at least a “component” of the Unruh Civil Rights Act.’ (Id. at p. 1581.) It is noteworthy, however, that in construing section 52.1, our Supreme Court explained that it was enacted by the Legislature ‘to stem a tide of hate crimes’ (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338) and never referred to it as part of the Unruh Civil Rights Act which, at least originally, dealt only with the issue of equal accommodations. Other courts have referred to section 52.1 and related statutes, including section 51.7, as part of the Bane Act. (See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144; Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809.) In re Joshua H. (1993) 13 Cal.App.4th 1734 also refers to section 52.1 as part of the Bane Act but refers to section 51.7 as the ‘Ralph Civil Rights Act.’ (Boccato, supra, at p. 1748, fn. 9.)

Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance. (Gatto, supra, 98 Cal.App.4th 744, 757–758.)

Although the Gatto court does not unequivocally hold that sections 51.7 and 52.1 are not part of the Act, we are not so reserved: We conclude neither section is part of a properly denominated Act. This conclusion is based largely on the legislative history that we have described ante and is consistent with that reached by two commentators in the civil rights litigation field. Their treatise devotes entire sections to two subjects: “Ralph Act is not part of the Unruh Act or FEHA,” and “Bane Act is not part of the Unruh Act, the Ralph Act or another statute.” (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation (2005) § 314, p. 27, § 327, p. 50.)

ARGUMENTS IN SUPPORT: According to the author, this non-controversial measure, taking its cue from the California Court of Appeals for the Second District, "simply clarifies that Section 51.7 of the Civil Code constitutes the Ralph Civil Rights Act, and that it is separate and independent of the Unruh Civil Rights Act. As the Second Circuit Court of Appeal noted in Stamps v. Superior Court (2006), a lack of clarity about whether the Ralph Act is part of the Unruh Act has been a source of confusion among some courts and litigants about, for example, the applicable statute of limitations. While hardly the most pressing issue in the state, this bill will simply follow the court's suggestion to appropriately identify the Ralph Act."

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334