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Uncage and Reunite Families Coalition: Legal and Legislative Committee Update: April 23, 2019

Uncage and Reunite Families Coalition

Legal and Legislative Committee Update:  April 23, 2019

URFC, Legal and Legislative Committee is made of professionals from the legal, health, safety and legislative communities.  Its role is to promote legal protections, appear at both federal and state level hearings and advocate for immigrant children and families. 

The following narrative describes our efforts for meaningful solutions to protect children being detained in state licensed facilities.

 

Background

During the 2019 State of Arizona legislative session, URFC pushed for reforms to licensure to include the establishment of an independent advisory oversight committee for facilities like that of Southwest Key Programs. The idea to establish an oversight committee was first raised after reports surfaced last year regarding incidences of sexual and physical abuse at Southwest Key Programs facilities and after Arizona Department of Health Services (ADHS) Director Cara Christ incorrectly claimed that children were safe in Southwest Key facilities.

Christ wrote in an August 23, 2018 letter to Gov. Doug Ducey that she was “confident that Southwest Key is providing care within the law and Arizona’s established standards of care... And while ADHS did observe and cite Southwest Key for various violations, these deficiencies do not constitute and immediate threat to the health or safety of children and are not uncommon in any facility we inspect…”

It is as painfully clear today as it was then that the children in state licensed facilities are in need of protection beyond the discretion of ADHS and established laws.

 

Proposed Legislation

Early in the session, URFC worked towards solutions at the legislature.  Representative Butler and Senator Quezada crafted legislation to address licensure. Those bills, at the discretion of the GOP majority chairs in both chambers, did not get a hearing.

  • HB2622, HB2623 Requires more vetting of employees and gives licensure back to the state by removing an outside party accreditation.
  • SB1493 & HB2722  Establishes an independent short-term oversight committee on residential care facilities that house migrant children.

 

AZ Senate

Senator Brophy McGee’s sponsored bill SB1247 as originally proposed was strong and had potential. SB1247 targets a specific licensure, behavioral health residential facilities, that provide services to children, which is what Southwest Key Programs licensure is under. Although SB1247 did not a have a provision to establish an oversight committee, we supported it and garnered support from others. The computerized Request to Speak (RTS) system reflected positive interest.

After proclaimed support from URFC, the public, and media exposure, Sen. Brophy-McGee amended her own bill as an emergency measure just prior to it being heard in committee.  This last minute maneuvering resulted in a drastically weakened bill with little to no prevention.

Upon seeing and hearing the lobbyist for Southwest Key Programs and representation from Arizona Department of Health Services (ADHS) in the Senate health committee, it was plain to see where the influence was coming from.

With the help of media, the bill was criticized and Brophy-McGee amended the bill again on the floor before it passed the Senate side.

 

AZ House

On the House side, in committee, Rep. Kelli Butler amended SB1247 to advance legislation for an oversight committee. URFC was present in the committee and expressed concern for the engrossed bill. During the testimony in the House health committee, ADHS described URFC as an adversarial group. Ultimately, the state run agency did not want the amendment that would have increased transparency and independent oversight.

The house committee amendment failed on a partisan vote.

 

AZ House Committee of the Whole (COW)

In spite of opposition to the idea of an independent advisory oversight committee, Rep. Butler again advanced an amendment on the House floor in COW. She had modified the amendment from the committee proposal to address concerns heard in committee.  Given the barriers by the opposition and controlling majority, options were limited.

On the floor, in the House COW, the amendment procedure, was seen as “hostile” by Brophy McGee. The “hostile” comment from Brophy McGee was relayed via email and read by the GOP Majority Whip Rep. Petersen. Comments in response to the “hostile” accusation were heard from Rep. Friese who reminded the body that procedures for advancing legislation should not be vetoed for the Committee of the Whole by a single member.

Other opposition to the amendment included the opinion that access to the facility would not be allowed by the federal government making the provision in the amendment illegal. The Butler amendment clearly states access would be “subject to federal law” thus countering that argument.

More drama unfolded from Rep. Cobb. After Rep. Cobb looked to her phone for guidance, she questioned Rep. Butler in a rude interrogating tone. Rep Cobb said that there was a fiscal requirement to the amendment regarding requiring staff support from ADHS. Rep. Butler replied that this would fit into what ADHS was already doing and repeated the value of an oversight committee.  She reminded the body that currently, in order to find out what is going on inside a facility, we are relying on the Freedom of Information Act requests which requires staff time.

Rep. Campbell read a script from his cell phone stumbling over his words. He commented that ADHS could not enter the facilities where families were in custody and that with this bill ADHS will be able to enter for inspections unwarranted and learn of every incident. In conclusion, he boasted that the state has addressed the issues of abuse and neglect of children. In response to Rep. Campbell’s comments, it was pointed out that the process for reporting neglect and abuse still has many hurdles and that it would take much time to address an emergency situation.

Rep. Powers Hannley reiterated the need for better oversight.  She repeated questions she asked during the House health committee and asked them to ponder how a 6 year-old Central American child who does not speak Spanish or English can make a complaint of abuse and how abuse is otherwise discovered.

During debate, Rep Allen went off topic and made comments about bringing in socialists to our country. His comments revealed an underlying negative bias towards the population affected. There is much more that renders down to a soup of partisan opposition to the amendment. You can see the video here.

Rep Butler did a commendable job in clarifying why we need an oversight committee and that SB1247 simply does not do enough. She highlighted, for example, that the name of the perpetrator of sexual abuse who was tried and sentenced to 19 years in prison would not have been in the DCS registry - checking the DCS registry prior to hire is a provision of SB1247, one of the many gaps in prevention. And, if a search is done for the licensure on a Southwest Key Programs facility where the perpetrator victimized 8 boys, the ADHS reporting shows up as a fingerprint violation.

The amendment on the House floor in COW failed on a partisan vote.

 

What does SB1247 really do?

SB1247, impacts a very narrow type of facility licensure - behavioral health residential state licensed facilities; it provides for slight changes in reporting and oversight responsibilities by the State of Arizona; and more importantly, it leaves gaps in prevention.

It alerts ADHS after an alleged or actual abuse situation occurs that requires notification to law enforcement, DCS or the United States Health and Human Services (HHS). It therefore relies on reported abuse that meet thresholds for notification after an abuse situation arises - too late for the abuse victim.

It alerts ADHS when a facility funding source is exclusively from the federal government. This is an administration action that does not impact the direct care of children.

It requires licensed facilities that only contract with and only receive money from the federal government to do employee background checks with the DCS on their central registry system. Facilities that have income from the federal government and outside the federal government can skip this employee vetting. Moreover, as Rep. Butler noted in debate, the recently convicted abuser employed by Southwest Key Programs was not on the registry. Employee checks identify only those previous caught and listed in the registry and does not reflect the facility operations.

It impacts accreditation and discretion of ADHS in licensure. This is the biggest change from the original proposed bill and this is where language gets complicated. The original introduced version of the bill removed accreditation so ADHS was required to inspect and render a decision on licensure. The twice amended version of the bill reversed this so that a third party accreditation would be still be acceptable under very carefully crafted stipulations that mostly protect the facility business versus the residents.

  • Accreditation reports for each facility.

It requires each facility to have an accreditation report provides versus the single business licensure. When Southwest Key Programs licensure was shut down last year, all 13 Southwest facilities that fit under the licensure were affected. Given a situation of noncompliance in the future, if only one facility is noncompliant then it impacts only that facility versus the business as a whole thus giving some business protections.

  • Discretion to accept an outside accreditation for licensure.

ADHS “may” (at their discretion and is optional) accept outside accreditation instead of a compliance inspection only under both conditions.

  • The facility is accredited by an independent, nonprofit accrediting organization approved by the Secretary of HHS.
  • The facility has not been subject to an enforcement action within the year preceding the annual licensing fee anniversary date.

So if the facility has an accreditation by an HHS approved organization and they have not been caught and found guilty of infractions to the level of enforcement, then ADHS has the option to accept an outside accreditation.

It is important to know enforcement requires a lengthy course of due process which protects the business status of the facility – not the children. So being free of enforcement for only one year does not guarantee quality operations. (As a reminder, Southwest Key Programs settlement agreement stipulates two years unannounced visits allowed by ADHS.)

The conditions also provide for a back door legislation that gives authorization to HHS approved non-profit accreditation organizations, thus minimizing local control.

As a final notes of what SB1247 does and dos not do, it important to know what it is silent on. It keeps the fines as is, which is minimal in comparison to the millions of dollars Southwest Key Programs has contracted in and earning of their CEO.

 

Current Status of SB1247

Governor Ducey signed SB1247 on April 24, 2019 during the AZ legislative Fifty-fourth Legislature, First Regular Session.

 

Summary

SB1247, impacts a very narrow type of facility licensure - behavioral health residential state licensed facilities; it provides for slight changes in reporting and oversight responsibilities by the State of Arizona; and more importantly, it leaves gaps in prevention. It mostly leaves the status quo with little attention to meaningful reform and prevention.

SB1247 started out robust but through the lobby efforts of Southwest Key and ADHS, it was drastically weakened. Attempts to strengthen the bill with an amendment to establish an independent oversight advisory committee was thwarted by partisan efforts and the GOP majority rule.

URFC continue to support proposals to appoint an independent panel of experts responsible for reviewing and monitoring conditions at facilities like Southwest Key Programs. The goal of the commission would be to act in an advisory capacity and make recommendations to Arizona Department of Health Services (ADHS), the Governor and Legislature on how best to protect the children held in detention centers licensed by the state.

The federal government has abdicated its responsibility to protect the children it incarcerates. Governor Ducey should step up to protect and prevent abuse of children by unilaterally establishing an independent oversight committee for facilities like that of Southwest Key Programs.

URFC will continue to advocate for an oversight committee. Strengthening the law requires looking at the situation with professionals and making recommendations. An oversight committee can do that and more. URFC recognizes the need for meaningful reforms and vows to continue this work. We will carry our message to every church, professional and civic organization, local government and venue that will hear us.

We appreciate your support in advancing solutions to protect vulnerable immigrant children and will provide periodic updates.

 

 

To learn more about this issue and more, follow us on Twitter @UReunite, Facebook https://www.facebook.com/uncageandreunite/

or contact us at  https://uncageandreunite.com/; info@uncageandreunite.com

About: Uncage and Reunite Families Coalition is a grassroots organization that came together in June 2018. We work towards reunifying all immigrant children with their families and advocate for their safety, health and wellbeing during immigration processing while in the custody of the United States government.