PRINTER'S NO. 2340
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1749
Session of
2019
INTRODUCED BY TOOHIL, OWLETT, MILLARD, KAUFFMAN, KENYATTA,
T. DAVIS, SCHLOSSBERG, JOHNSON-HARRELL, NEILSON, HOWARD,
THOMAS, CIRESI, BROWN, STRUZZI, PASHINSKI, YOUNGBLOOD, WARREN
AND SCHWEYER, AUGUST 16, 2019
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, AUGUST 16, 2019
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, in child protective services, further
providing for definitions and for release of information in
confidential reports; and providing for a Children's Advocate
and remedial powers, for response to complaints, for
cooperation of agencies and providers, for confidentiality of
investigations and records, for findings and recommendations,
for protection from retaliation and for nonexclusivity of
remedy.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6303(a) of Title 23 of the Pennsylvania
Consolidated Statutes is amended by adding a definition to read:
§ 6303. Definitions.
(a) General rule.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
* * *
"Children's Advocate." The Children's Advocate established
under section 6379.3 (relating to Children's Advocate).
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* * *
Section 2. Section 6340(a) of Title 23 is amended by adding
a paragraph to read:
§ 6340. Release of information in confidential reports.
(a) General rule.--Reports specified in section 6339
(relating to confidentiality of reports) shall only be made
available to:
* * *
(19) The Children's Advocate.
* * *
Section 3. Chapter 63 of Title 23 is amended by adding a
subchapter to read:
SUBCHAPTER D.1
CHILDREN'S ADVOCATE
Sec.
6379.1. Scope of subchapter.
6379.2. Definitions.
6379.3. Children's Advocate.
6379.4. Powers and duties of Children's Advocate.
6379.5. Investigative and remedial powers.
6379.6. Response to complaints.
6379.7. Cooperation of agencies and providers.
6379.8. Confidentiality of investigations and records.
6379.9. Report of findings and recommendations.
6379.10. Annual report.
6379.11. Protection from retaliation.
6379.12. Obstruction.
6379.13. Nonexclusivity of remedy.
§ 6379.1. Scope of subchapter.
This subchapter relates to the Children's Advocate.
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§ 6379.2. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Administrative agency." A State or county agency that
provides services to a child who is the subject of an
investigation conducted by the Children's Advocate under this
subchapter.
"Child welfare services" or "child-care services." As
defined in section 6303 (relating to definitions). The term does
not include services provided by a child day-care center or
group and family day-care home.
"Complainant." An individual who makes a complaint under
this subchapter.
"Remediable action." An action by an administrative agency
or an agent of the administrative agency that is:
(1) contrary to law, rule or policy;
(2) imposed without adequate statement of reason; or
(3) based on irrelevant or erroneous grounds.
§ 6379.3. Children's Advocate.
(a) Establishment.--The Office of Children's Advocate is
established within the Office of Attorney General.
(b) Appointment.--Within 60 days of the effective date of
this section, the Attorney General shall appoint a Children's
Advocate, subject to confirmation by a majority of the
membership of the Senate. The Children's Advocate shall be
qualified by training and experience to perform the duties and
exercise the powers of the Children's Advocate as provided in
this subchapter.
(c) Term of office.--The Children's Advocate shall hold
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office for a term of five years and shall continue to hold
office until a successor is appointed. The Attorney General may
reappoint the Children's Advocate then serving for one
additional term, subject to Senate confirmation. A vacancy shall
be filled by appointment for the remainder of the unexpired
term. A Children's Advocate who has served part of an unexpired
term may serve up to two additional terms.
(d) Removal.--The Attorney General may remove the Children's
Advocate only for neglect of duty, misconduct or inability to
perform duties. The Attorney General shall provide a report to
the General Assembly citing the reasons for removal.
(e) Administrative support.--The Children's Advocate shall
be established as an entity in the Office of Attorney General
for purposes of administrative support.
§ 6379.4. Powers and duties of Children's Advocate.
(a) General rule.--The Children's Advocate shall have the
following powers and duties:
(1) To receive, process and investigate complaints under
this subchapter.
(2) To pursue legislative advocacy in the best interests
of children.
(3) To examine policies and procedures utilized by
administrative agencies, including investigatory protocols,
reporting systems and emergency response procedures.
(4) To identify and make appropriate recommendations to
the Governor, the General Assembly, the Supreme Court and the
Attorney General concerning issues affecting the welfare of
children.
(5) To identify and make appropriate recommendations to
the department regarding uniformity of procedures utilized by
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administrative agencies.
(6) Subject to annual appropriations, to employ
sufficient personnel to carry out the powers and duties
prescribed by this subchapter.
(7) To manage the expenditure of appropriated funds.
(8) To advise the public of services of the advocate,
the purposes of the Office of Children's Advocate and the
procedures to contact the Office of Children's Advocate.
(9) To prescribe procedures necessary to carry out the
powers and duties of the Children's Advocate.
(b) Limitation.--The Children's Advocate may not overrule or
overturn an action by an administrative agency or court.
§ 6379.5. Investigative and remedial powers.
The Children's Advocate may:
(1) Investigate alleged remediable actions concerning
child welfare services throughout this Commonwealth.
(2) Investigate received complaints concerning child
welfare services in this Commonwealth.
(3) Investigate complaints involving violations of
applicable law or regulation or the alleged mismanagement of
the department or administrative agency which directly or
indirectly placed a child in danger.
(4) Hold informal and formal hearings and request that
individuals appear before the Children's Advocate and give
testimony or produce documentary evidence that the Children's
Advocate considers relevant to a matter under investigation.
(5) If necessary, administer oaths and compel the
attendance of witnesses and production of physical evidence
by subpoena.
(6) Report findings and recommendations under section
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6379.9 (relating to report of findings and recommendations).
§ 6379.6. Response to complaints.
(a) Notice.--
(1) If the Children's Advocate decides to investigate a
complaint, the Children's Advocate shall notify the
complainant, the department, county agency, provider of child
welfare services and other interested parties of the decision
to investigate.
(2) If the Children's Advocate declines to investigate a
complaint or to continue an investigation, the Children's
Advocate shall notify the complainant and the department,
county agency, provider of child welfare services and other
interested parties of the decision and the reasons for the
Children's Advocate's action.
(b) Professional discipline.--
(1) If the investigation of a complaint leads the
Children's Advocate to believe the matter complained of may
involve professional misconduct, the Children's Advocate
shall bring the matter to the attention of the licensing
authority responsible for professional discipline.
(2) If the complaint refers to conduct by a non-
attorney, guardian ad litem or court-appointed special
advocate, the Children's Advocate shall perform a preliminary
investigation and transmit the results of the investigation
to the court.
(3) If the complaint refers to conduct by a licensed
attorney, the Children's Advocate shall refer the complaint
to the appropriate office within the Supreme Court.
(c) Referrals.--In the case of a complaint brought to the
attention of the Children's Advocate but not within the
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Children's Advocate's scope of authority under this subchapter,
the Children's Advocate shall refer the complainant to a person
or agency with the authority or ability to assist the
complainant.
(d) Alternative responses.--
(1) The Children's Advocate shall advise an individual
making a complaint to pursue all administrative remedies or
channels of complaint available to the individual before
pursuing a complaint with the Children's Advocate.
(2) Subsequent to the administrative processing of a
complaint, the Children's Advocate may conduct further
investigations.
(e) Criminal violations.--
(1) If the Children's Advocate finds in the course of an
investigation that an individual's action is in violation of
Federal or State criminal law, the Children's Advocate shall
immediately report that fact to the district attorney or the
Attorney General.
(2) If the complaint is against a provider of child
welfare services, the Children's Advocate shall refer the
matter to the department for further action.
§ 6379.7. Cooperation of agencies and providers.
(a) Investigations.--The department, county agency,
administrative agency or provider of child welfare services
shall:
(1) Upon the Children's Advocate's request, grant the
Children's Advocate or the Children's Advocate's designee
access to all information, records and documents in its
possession that the Children's Advocate considers necessary
to the investigation.
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(2) Assist the Children's Advocate in obtaining the
necessary releases for those documents that are specifically
restricted.
(3) Provide the Children's Advocate upon request with
progress reports concerning the administrative processing of
a complaint.
(4) Provide the Children's Advocate with information
requested within 10 business days after the written request
of the Children's Advocate. If the department determines that
the release of the information would violate Federal or State
law, the Children's Advocate shall be notified of that
determination in writing within the ten-day period.
(b) Public awareness.--
(1) The department, county agency or provider of child
welfare services shall provide information to a biological
parent, prospective adoptive parent or foster parent
regarding the provisions of this subchapter.
(2) The Children's Advocate shall develop written
materials for public distribution regarding the provisions of
this subchapter.
§ 6379.8. Confidentiality of investigations and records.
(a) Matters under investigation.--
(1) The Children's Advocate shall treat all matters
under investigation as confidential, including the identities
of recipients of information, individuals from whom
information is acquired and persons seeking assistance from
the Children's Advocate.
(2) Upon receipt of information that by law is
confidential or privileged, the Children's Advocate shall
maintain the confidentiality of the information and may not
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further disclose or disseminate the information except as
provided by Federal or State law or upon order of a court.
(b) Records.--
(1) A record of the Office of the Children's Advocate is
confidential, shall be used only for the purposes of this
subchapter and is not subject to subpoena.
(2) Information contained in the records of the
Children's Advocate may not be disclosed in such a manner as
to identify individuals, except upon order of a court.
(3) The Children's Advocate or other agency may not
disclose a record of the Children's Advocate or a record
received from the Children's Advocate under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
Law, except upon order of a court.
(4) No person may disclose any record under this
subsection without the written consent of the complainant.
§ 6379.9. Report of findings and recommendations.
(a) Report.--The Children's Advocate shall make a report of
the findings and recommendations for each investigation.
(b) Findings and recommendations.--The Children's Advocate
shall establish findings and make recommendations to the
department, the county agency, the provider of child welfare
services and other appropriate entities if the Children's
Advocate makes any of the following determinations:
(1) A matter should be further considered by the
department, the county agency or provider of child welfare
services.
(2) An administrative action should be modified or
canceled.
(3) Reasons should be given for an administrative
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action.
(4) Other action should be taken by the department, the
county agency or a provider of child welfare services.
(c) Subjects of report.--
(1) Before recording or disseminating a conclusion or
recommendation that expressly or by implication criticizes an
individual, the department, the county agency or a provider
of child welfare services, the Children's Advocate shall
provide the subject of the report with reasonable advance
notice and an opportunity to respond.
(2) When making a report adverse to the department,
county agency or provider, the Children's Advocate shall
include in the report any written statement made to the
Children's Advocate by the department, county agency or
provider of child welfare services in defense or mitigation
of the administrative action. The Children's Advocate may
request to be notified in writing by the department, county
agency or provider within a specified time of any
administrative action taken on the recommendations of the
Children's Advocate.
(d) Notice to complainant.--
(1) The Children's Advocate shall provide an individual
making a complaint with a copy of the Children's Advocate's
report regarding the complaint and shall notify the
individual of any action taken by the Children's Advocate and
by the department, county agency or provider of child welfare
services.
(2) The Children's Advocate may not release to the
individual any report information or other material required
to be kept confidential under section 6339 (relating to
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confidentiality of reports).
§ 6379.10. Annual report.
The Children's Advocate shall submit to the Governor, the
General Assembly, the administrative office of the Supreme
Court, the Attorney General and the department an annual report
on the conduct of the Children's Advocate, including any
recommendations regarding the need for legislation or for
changes in rules or policies.
§ 6379.11. Protection from retaliation.
(a) General rule.--An official, the department, the county
agency or a provider of child welfare services may not penalize
an individual for filing a complaint in good faith or
cooperating with the Children's Advocate in investigating a
complaint under this subchapter.
(b) Penalties.--Violations of subsection (a) shall be
subject to the penalties contained in section 6 of the act of
December 12, 1986 (P.L.1559, No.169), known as the Whistleblower
Law.
§ 6379.12. Obstruction.
(a) General rule.--An individual, the department, the county
agency or a provider of child welfare services may not hinder
the lawful actions of the Children's Advocate or employees or
designees of the Children's Advocate.
(b) Penalties.--Violations of subsection (a) shall be
subject to the penalties in 18 Pa.C.S. § 5101 (relating to
obstructing administration of law or other governmental
function).
§ 6379.13. Nonexclusivity of remedy.
(a) General rule.--The authority granted the Children's
Advocate under this subchapter is in addition to the authority
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granted under the provisions of:
(1) any other statute or rule under which the remedy or
right of appeal or objection is provided for an individual;
or
(2) any procedure provided for the inquiry into or
investigation of any matter.
(b) Authority of Children's Advocate.--The authority granted
the Children's Advocate shall not limit or affect the remedy or
right of appeal or objection and is not an exclusive remedy or
procedure.
Section 4. This act shall take effect immediately.
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