S T A T E   O F   N E W   Y O R K
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                                 5778--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 14, 2013
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and  Families  --
  recommitted  to  the  Committee on Children and Families in accordance
  with Senate Rule 6, sec. 8  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN  ACT  to amend the executive law, in relation to the establishment of
  the independent office of the child advocate;  and  repealing  certain
  provisions of such law relating to the office of the ombudsman

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subtitle B of title 3 of article 19-G of the executive  law
is REPEALED.
  S 2. The executive law is amended by adding a new article 19-I to read
as follows:
                              ARTICLE 19-I
                INDEPENDENT OFFICE OF THE CHILD ADVOCATE
SECTION 533. INDEPENDENT OFFICE OF THE CHILD ADVOCATE; CREATION.
        534. DEFINITIONS.
        535. THE CHILD ADVOCATE.
        536. DUTIES OF THE CHILD ADVOCATE.
        537. POWERS OF THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE.
        538. DUTY TO MAINTAIN CONFIDENTIALITY.
        539. ADDITIONAL PROVISIONS.
  S  533.  INDEPENDENT  OFFICE OF THE CHILD ADVOCATE; CREATION. THERE IS
HEREBY CREATED IN THE EXECUTIVE DEPARTMENT, AN INDEPENDENT OFFICE OF THE
CHILD ADVOCATE, WHICH SHALL:
  1. EXAMINE, EVALUATE AND REPORT TO THE GOVERNOR  AND  THE  LEGISLATURE
ON:
  (A)  PARTICULAR  AND SYSTEMIC ISSUES IN PUBLICLY FUNDED PROGRAMS OVER-
SEEN BY ANY EXECUTIVE AGENCY WITH CUSTODY OF CHILDREN; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04829-03-4

              

S. 5778--A                          2

  (B) MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY OR  GUAR-
DIANSHIP  OF  ANY  STATE  AGENCY THAT HAS CUSTODY OF CHILDREN OR A LOCAL
SOCIAL SERVICES DISTRICT, AND THE FAMILIES OF SUCH  CHILDREN  EXPERIENCE
IN ACCESSING NEEDED SERVICES ACROSS SYSTEMS; AND
  2.  ADVOCATE  FOR,  AND  REPORT TO THE GOVERNOR AND THE LEGISLATURE ON
SUGGESTED STATUTORY, REGULATORY OR POLICY  CHANGES  AIMED  AT  IMPROVING
OUTCOMES AND SERVICES FOR CHILDREN AND THEIR FAMILIES IN NEW YORK STATE.
  S 534. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "CHILD" OR "CHILDREN" MEANS:
  (A) A PERSON, OR PERSONS UNDER THE AGE OF EIGHTEEN; OR
  (B)  A  PERSON  OR  PERSONS  UNDER  THE AGE OF TWENTY-ONE WHO HAS BEEN
PLACED INTO THE CARE, CUSTODY, OR GUARDIANSHIP OF ANY STATE AGENCY  THAT
HAS  CUSTODY OF CHILDREN OR A LOCAL SOCIAL SERVICES DISTRICT PURSUANT TO
ARTICLE THREE, SEVEN OR TEN OF THE FAMILY COURT  ACT  OR  SECTION  THREE
HUNDRED  FIFTY-EIGHT-A,  THREE  HUNDRED  EIGHTY-THREE-C,  THREE  HUNDRED
EIGHTY-FOUR-A OR THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW;
OR
  (C) A PERSON OR PERSONS UNDER THE AGE OF TWENTY-ONE WHO IS  PLACED  IN
RESIDENTIAL CARE AS DEFINED IN SECTION FOUR HUNDRED TWELVE OF THE SOCIAL
SERVICES LAW.
  2. "CHILD ADVOCATE" MEANS THE PERSON APPOINTED PURSUANT TO SUBDIVISION
ONE  OF  SECTION  FIVE HUNDRED THIRTY-FIVE OF THIS ARTICLE TO DIRECT AND
OVERSEE THE ACTIVITIES OF THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE.
  S 535. THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL BE AN  INDIVID-
UAL  WITH  AT LEAST FIVE YEARS EXPERIENCE IN THE GENERAL SUBJECT AREA OF
EITHER CHILD WELFARE, JUVENILE JUSTICE OR CHILDHOOD  BEHAVIORAL  HEALTH,
WHO SHALL BE APPOINTED BY THE GOVERNOR.
  2.  THE  CHILD  ADVOCATE  MAY HIRE OR APPOINT PERSONS AS MAY BE DEEMED
NECESSARY TO CARRY OUT THE DUTIES OF THE INDEPENDENT OFFICE OF THE CHILD
ADVOCATE. THE DUTIES OF PERSONS EMPLOYED OR APPOINTED BY THE CHILD ADVO-
CATE SHALL BE PERFORMED UNDER THE ADVICE AND SUPERVISION  OF  THE  CHILD
ADVOCATE. PERSONS EMPLOYED OR APPOINTED BY THE INDEPENDENT OFFICE OF THE
CHILD ADVOCATE SHALL BE INDIVIDUALS WITH EXPERTISE IN THE AREAS OF CHILD
WELFARE,  JUVENILE  JUSTICE,  CHILDHOOD  BEHAVIORAL HEALTH, FOSTER CARE,
PREVENTIVE SERVICES, OR CHILD CARE, AS EVIDENCED  BY  EXPERTISE  IN  THE
FIELD,  PRACTICE,  ADVOCACY  OR  BY  ACADEMIC  BACKGROUND, THE LEVEL AND
SUFFICIENCY OF WHICH SHALL BE DETERMINED  BY  THE  CHILD  ADVOCATE.  THE
CHILD  ADVOCATE  SHALL  FIX  THE  COMPENSATION  OF  PERSONS  EMPLOYED OR
APPOINTED BY THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE WITHIN AMOUNTS
APPROPRIATED THEREFOR.
  S 536. DUTIES OF THE CHILD ADVOCATE. 1. THE CHILD ADVOCATE SHALL:
  (A) EXAMINE, EVALUATE, INVESTIGATE AND REPORT TO THE GOVERNOR AND  THE
LEGISLATURE  ON  PARTICULAR  AND  SYSTEMIC  ISSUES  IN  PUBLICLY  FUNDED
PROGRAMS OVERSEEN BY A STATE AGENCY THAT HAS  CUSTODY  OF  CHILDREN  AND
LOCAL  SOCIAL  SERVICES  DISTRICTS,  INCLUDING  BUT NOT LIMITED TO CHILD
WELFARE, JUVENILE JUSTICE, FOSTER CARE, CHILD PROTECTIVE, CHILD CARE AND
PREVENTATIVE SERVICES; AND
  (B) EXAMINE, EVALUATE, INVESTIGATE AND REPORT TO THE GOVERNOR AND  THE
LEGISLATURE  ON MULTI-SYSTEMIC ISSUES THAT CHILDREN IN THE CARE, CUSTODY
OR GUARDIANSHIP OF A STATE AGENCY THAT HAS  CUSTODY  OF  CHILDREN  OR  A
LOCAL SOCIAL SERVICES DISTRICT, AND THE FAMILIES OF SUCH CHILDREN, EXPE-
RIENCE IN ACCESSING NEEDED SERVICES ACROSS SYSTEMS; AND
  (C)  MONITOR THE IMPLEMENTATION OF THE POLICIES, REGULATIONS AND STAT-
UTES OF STATE AGENCIES WHICH MAY BE APPLICABLE TO THE  LEGAL  RIGHTS  OF
CHILDREN IN THE CARE, CUSTODY OR GUARDIANSHIP OF A STATE AGENCY THAT HAS

S. 5778--A                          3

CUSTODY OF CHILDREN OR A LOCAL SOCIAL SERVICES DISTRICT, OR THE FAMILIES
OF SUCH CHILDREN; AND
  (D)  MONITOR  THE IMPLEMENTATION OF POLICIES, REGULATIONS AND STATUTES
WHICH MAY HAVE AN IMPACT ON PUBLICLY FUNDED  PROGRAMS  OVERSEEN  BY  THE
OFFICE  OF  CHILDREN  AND  FAMILY SERVICES, INCLUDING BUT NOT LIMITED TO
CHILD WELFARE, JUVENILE JUSTICE, FOSTER CARE,  CHILD  PROTECTIVE,  CHILD
CARE AND PREVENTATIVE SERVICES; AND
  (E)  RECOMMEND  CHANGES  IN  STATE  POLICIES, STATUTES AND REGULATIONS
CONCERNING CHILDREN IN THE CARE, CUSTODY  OR  GUARDIANSHIP  OF  A  STATE
AGENCY THAT HAS CUSTODY OF CHILDREN OR A LOCAL SOCIAL SERVICES DISTRICT,
AND THE FAMILIES OF SUCH CHILDREN; AND
  (F)  RECOMMEND  CHANGES  IN  STATE POLICIES, STATUTES, AND REGULATIONS
CONCERNING PUBLICLY FUNDED PROGRAMS THAT SERVICE CHILDREN AND  FAMILIES,
INCLUDING  BUT  NOT  LIMITED  TO CHILD WELFARE, JUVENILE JUSTICE, FOSTER
CARE, CHILD PROTECTIVE, CHILD CARE AND PREVENTATIVE  SERVICES,  ADMINIS-
TERED  BY  A  STATE  AGENCY THAT HAS CUSTODY OF CHILDREN OR LOCAL SOCIAL
SERVICES DISTRICTS; AND
  (G) TAKE APPROPRIATE ACTIONS AIMED AT PROMOTION OF THE RIGHTS, SAFETY,
WELL-BEING, AND BEST INTERESTS OF CHILDREN IN NEW YORK STATE, INCLUDING,
BUT NOT LIMITED TO, UNDERTAKING LEGISLATIVE ADVOCACY, CONDUCTING  PUBLIC
HEARINGS AND MAKING PROPOSALS FOR ADMINISTRATIVE OR SYSTEMIC REFORM; AND
  (H)  PROVIDE ADMINISTRATIVE SUPERVISION AND OVERSIGHT TO THE INDEPEND-
ENT OFFICE OF THE CHILD ADVOCATE AND DEVOTE FULL-TIME TO THE  DUTIES  OF
HIS OR HER OFFICE; AND
  (I) CONDUCT PERIODIC INSPECTIONS, EVALUATIONS OR REVIEWS OF ANY FACIL-
ITY OPERATED BY A STATE AGENCY THAT HAS CUSTODY OF CHILDREN AT ANY TIME,
WITH  OR WITHOUT PRIOR NOTICE.  FACILITY DIRECTORS AND STAFF SHALL COOP-
ERATE WITH SUCH INSPECTION, EVALUATION OR REVIEW. AN ADVOCATE SHALL HAVE
THE RIGHT TO INSPECT THE FACILITY, VISIT ALL AREAS AND OBSERVE ALL PARTS
AND ASPECTS OF SUCH FACILITY PROGRAM; AND
  (J) REPORT TO THE GOVERNOR AND THE LEGISLATURE AS NEEDED, BUT NOT LESS
THAN TWICE PER YEAR. SUCH REPORT SHALL BE MADE AVAILABLE TO THE  PUBLIC,
UNLESS  SUCH  MATERIALS  ARE CONFIDENTIAL PURSUANT TO STATUTE, AND SHALL
INCLUDE BUT NOT BE LIMITED TO:
  (A) INFORMATION CONCERNING THE NUMBER AND  TYPES  OF  REVIEWS,  EVALU-
ATIONS  AND  INVESTIGATIONS  CONDUCTED  BY THE INDEPENDENT OFFICE OF THE
CHILD ADVOCATE; AND
  (B) ANY RECOMMENDATIONS BY THE CHILD ADVOCATE FOR LEGISLATIVE, REGULA-
TORY, OR PUBLIC POLICY CHANGES.
  2. IF AFTER EXAMINATION PURSUANT TO SUBDIVISION ONE OF  THIS  SECTION,
THE  CHILD  ADVOCATE  IDENTIFIES  A SYSTEMIC PROBLEM IN HOW SERVICES ARE
PROVIDED TO CHILDREN IN THE CARE, CUSTODY, OR GUARDIANSHIP  OF  A  STATE
AGENCY THAT HAS CUSTODY OF CHILDREN OR A LOCAL SOCIAL SERVICES DISTRICT,
BY  A  STATE  AGENCY  THAT  HAS  CUSTODY  OF CHILDREN, OR A LOCAL SOCIAL
SERVICES DISTRICT, OR ANY PUBLIC OR PRIVATE ENTITY WHICH CONTRACTS  WITH
THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES OR A LOCAL SOCIAL SERVICES
DISTRICT TO PROVIDE SERVICES TO SUCH CHILDREN, THE CHILD ADVOCATE  SHALL
PROVIDE SUCH OFFICE, DISTRICT, AGENCY OR ENTITY A WRITTEN REPORT OUTLIN-
ING THE FINDINGS AND RECOMMENDATIONS OF THE CHILD ADVOCATE.
  (A)  AN  OFFICE,  DISTRICT,  AGENCY OR ENTITY NAMED IN A REPORT BY THE
CHILD ADVOCATE AS DESCRIBED IN THIS SUBDIVISION SHALL HAVE THE OPTION TO
RESPOND IN WRITING TO THE CHILD ADVOCATE'S  FINDINGS,  PROVIDED  HOWEVER
THAT  SUCH  WRITTEN  RESPONSE  MUST BE ISSUED WITHIN NINETY DAYS OF SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY'S RECEIPT OF THE APPLICABLE REPORT BY
THE CHILD ADVOCATE.

S. 5778--A                          4

  (B) WITHIN THIRTY DAYS AFTER THE RECEIPT OF A RESPONSE FROM AN OFFICE,
DISTRICT, AGENCY OR ENTITY AS DESCRIBED IN THIS SUBDIVISION,  THE  CHILD
ADVOCATE  SHALL  ISSUE SUCH RESPONSE, AND THE REPORT ISSUED BY THE CHILD
ADVOCATE PURSUANT TO THIS SUBDIVISION, TO THE GOVERNOR AND THE  LEGISLA-
TURE.
  (C)  IF  A RESPONSE OR A WRITTEN REQUEST FOR AN ADDITIONAL THIRTY DAYS
WITH AN EXPLANATION IS NOT RECEIVED BY THE CHILD ADVOCATE WITHIN  NINETY
DAYS  FROM  THE  DATE  THAT  THE CHILD ADVOCATE SENT SUCH REPORT TO SUCH
OFFICE, DISTRICT, AGENCY OR ENTITY, THE  CHILD  ADVOCATE  SHALL  PROVIDE
SUCH  REPORT  TO  THE GOVERNOR AND THE LEGISLATURE WITH A NOTICE STATING
THAT SUCH OFFICE, DISTRICT, AGENCY OR ENTITY FAILED TO  ISSUE  A  TIMELY
WRITTEN RESPONSE TO THE REPORT BY THE CHILD ADVOCATE.
  S  537.  POWERS  OF  THE  INDEPENDENT  OFFICE  OF  THE CHILD ADVOCATE.
NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY,  THE
INDEPENDENT OFFICE OF THE CHILD ADVOCATE SHALL HAVE ACCESS TO, INCLUDING
THE  RIGHT  TO  INSPECT AND COPY, ANY RECORDS NECESSARY TO CARRY OUT ITS
RIGHTS, POWERS AND DUTIES PURSUANT TO THIS ARTICLE,  INCLUDING  BUT  NOT
LIMITED  TO,  PERSONNEL  RECORDS  THAT BEAR ON ANY ISSUE BEING REVIEWED,
EVALUATED, OR INVESTIGATED AND RECORDS OF CHILDREN UNDER THE CARE  OF  A
STATE  AGENCY  THAT  HAS  CUSTODY OF CHILDREN OR A LOCAL SOCIAL SERVICES
DISTRICT THAT BEAR ON ANY ISSUE BEING REVIEWED, EVALUATED,  OR  INVESTI-
GATED.  THE INDEPENDENT OFFICE OF THE CHILD ADVOCATE SHALL ALSO HAVE THE
AUTHORITY TO SUBPOENA RECORDS AND WITNESSES, AND TO  CONDUCT  INTERVIEWS
WITH  ANY  PERSON  NECESSARY  TO CARRY OUT ITS RIGHTS, POWERS AND DUTIES
PURSUANT TO THIS ARTICLE, INCLUDING BUT NOT LIMITED TO STAFF  AND  CHIL-
DREN UNDER CARE OF THE OFFICE OF CHILDREN AND FAMILY SERVICES OR A LOCAL
SOCIAL SERVICES DISTRICT.
  S  538. DUTY TO MAINTAIN CONFIDENTIALITY. ALL RECORDS OF THE INDEPEND-
ENT OFFICE OF THE CHILD ADVOCATE PERTAINING TO THE  FULFILLMENT  OF  THE
CHILD ADVOCATE'S RIGHTS, POWERS AND DUTIES PURSUANT TO THIS ARTICLE, AND
ALL  RECORDS  OBTAINED BY THE CHILD ADVOCATE SHALL BE KEPT CONFIDENTIAL,
PROVIDED HOWEVER, THAT LIMITED INFORMATION CONTAINED IN SUCH RECORDS MAY
BE RELEASED BY THE CHILD ADVOCATE, IF APPROPRIATE, AND UPON APPROVAL  OF
THE  CHILD ADVOCATE, SO LONG AS THE INFORMATION TO BE RELEASED WOULD NOT
IDENTIFY THE CHILD OR CHILDREN THE CHILD ADVOCATE  WAS  SERVING  OR  THE
NAMES OF THE PARENTS OR SIBLINGS OF SUCH CHILD OR CHILDREN.
  S  539.  ADDITIONAL  PROVISIONS.  1.  THE STATE SHALL PROTECT AND HOLD
HARMLESS ANY PERSON EMPLOYED OR APPOINTED BY THE  CHILD  ADVOCATE,  FROM
FINANCIAL  LOSS  AND  EXPENSE,  INCLUDING  LEGAL FEES AND COSTS, IF ANY,
ARISING OUT OF ANY CLAIM, DEMAND OR SUIT FOR DAMAGES RESULTING FROM ACTS
OR OMISSIONS COMMITTED IN THE DISCHARGE OF HIS OR HER RIGHTS, POWERS AND
DUTIES WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT  OR  APPOINTMENT  WHICH
MAY  CONSTITUTE  NEGLIGENCE  BUT WHICH ACTS ARE NOT WANTON, MALICIOUS OR
GROSSLY NEGLIGENT AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
  2. NO STATE OR LOCAL  AGENCY,  DEPARTMENT,  OFFICE,  OR  ENTITY  SHALL
DISCHARGE,  OR  IN  ANY  MANNER  DISCRIMINATE  OR RETALIATE AGAINST, ANY
PERSON WHO IN GOOD FAITH MAKES A COMPLAINT TO, OR COOPERATES  WITH,  THE
CHILD  ADVOCATE  IN  A REVIEW OR EVALUATION CONDUCTED BY THE CHILD ADVO-
CATE. NO EMPLOYEE OF ANY STATE OR LOCAL DEPARTMENT OR OFFICE OR  OF  ANY
PRIVATE  ENTITY SHALL RETALIATE AGAINST ANY PERSON WHO MAKES A COMPLAINT
TO, OR WHO COOPERATES WITH THE INDEPENDENT OFFICE OF THE CHILD  ADVOCATE
IN  A  REVIEW,  INVESTIGATION OR EVALUATION CONDUCTED BY THE INDEPENDENT
OFFICE OF THE CHILD ADVOCATE.
  3. ALL COMMUNICATIONS TO THE INDEPENDENT OFFICE OF THE CHILD  ADVOCATE
SHALL  REMAIN  CONFIDENTIAL.  ANY COMPLAINT FILED BY ANY PERSON WITH THE
INDEPENDENT OFFICE OF THE CHILD ADVOCATE SHALL REMAIN CONFIDENTIAL.

S. 5778--A                          5

  4. ALL YOUTH RESIDING IN A JUVENILE JUSTICE FACILITY SHALL BE  PERMIT-
TED  REASONABLE  ACCESS TO A TELEPHONE TO MAKE A TOLL FREE CALL OR SHALL
BE SUPPLIED WRITING MATERIALS IN ORDER TO WRITE LETTERS TO THE INDEPEND-
ENT OFFICE OF THE CHILD ADVOCATE UPON THE YOUTH'S REQUEST. ANY  COMMUNI-
CATIONS BETWEEN SUCH YOUTH AND THE INDEPENDENT OFFICE OF THE CHILD ADVO-
CATE  SHALL REMAIN CONFIDENTIAL AND SHALL NOT BE MONITORED BY ANY MEMBER
OF THE FACILITY'S STAFF.
  5. THE INDEPENDENT OFFICE OF THE CHILD  ADVOCATE  MAY  APPLY  FOR  AND
ACCEPT  GRANTS, GIFTS AND BEQUESTS OF FUNDS FROM PRIVATE INDIVIDUALS AND
FOUNDATIONS FOR THE PURPOSE OF CARRYING OUT STUDIES UNDER THIS  ARTICLE.
THE  FUNDS  SHALL  BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SUCH
GRANT, GIFT OR BEQUEST.
  6. THE CHILD ADVOCATE SHALL TAKE ALL POSSIBLE ACTIONS  INCLUDING,  BUT
NOT  LIMITED  TO,  CONDUCTING  PROGRAMS OF PUBLIC EDUCATION, UNDERTAKING
LEGISLATIVE ADVOCACY AND MAKING PROPOSALS FOR ADMINISTRATIVE  CORRECTION
OR  REFORM  AND  FORMAL  LEGAL ACTION, IN ORDER TO SECURE AND ENSURE THE
LEGAL, CIVIL AND SPECIAL RIGHTS OF CHILDREN.
  7. THE CHILD ADVOCATE SHALL TAKE THE APPROPRIATE  STEPS  TO  MAKE  THE
EXISTENCE AND AVAILABILITY OF THE CHILD ADVOCATE WIDELY KNOWN, BY APPRO-
PRIATE AND ACTIVE MEANS, TO CHILDREN AND ADULTS.
  S 3. Subdivision 16 of section 501 of the executive law, as renumbered
by  chapter  170 of the laws of 1994, is renumbered subdivision 17 and a
new subdivision 16 is added to read as follows:
  16. THE COMMISSIONER OF THE OFFICE OF  CHILDREN  AND  FAMILY  SERVICES
SHALL  PROMULGATE  REGULATIONS  REQUIRING  THAT NO SERVICES, FACILITIES,
ENTITIES OR PROGRAMS UNDER THE JURISDICTION OF A STATE AGENCY  THAT  HAS
CUSTODY  OF  CHILDREN  SHALL  RESTRICT OR PROHIBIT ACCESS TO FACILITIES,
RECORDS OR INDIVIDUALS TO THE INDEPENDENT OFFICE OF THE  CHILD  ADVOCATE
UPON  REQUEST,  UNLESS  THE  DISCLOSURE  OF  SUCH  RECORDS ARE OTHERWISE
PROHIBITED BY FEDERAL LAW OR REGULATION.
  S 4. This act shall take effect April 1, 2015; provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date is authorized and directed to be  made  and  completed  on  or
before the effective date.