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ARIZONA STATE SENATE |
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45TH LEGISLATURE FIRST REGULAR SESSION
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MINUTES OF COMMITTEE ONFAMILY SERVICES |
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DATE: |
January 31, 2001 |
TIME: 8:30 a.m. |
ROOM: SHR 3 |
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CHAIRMAN: |
Senator Hartley |
VICE CHAIRMAN: |
Senator Hellon |
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ANALYST: |
Barbara Guenther |
COMMITTEE SECRETARY: |
Carol Dager |
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INTERNS: |
Keyina Sears |
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ATTENDANCE |
BILLS |
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Committee Members |
Pr |
Ab |
Ex |
Bill Number |
Disposition |
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Senator Bowers |
X |
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HB 2002 |
DP |
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Senator Lopez |
X |
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SB 1221 |
DP |
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Senator Petersen |
X |
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SB 1239 |
HELD |
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Senator Solomon |
X |
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SB 1055 |
DPA |
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Senator Hellon, Vice Chairman |
X |
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SB 1057 |
DPA |
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Senator Hartley, Chairman |
X |
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SB 1226 |
HELD |
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SB 1235 |
DPA |
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SB 1312 |
DP |
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SB 1357 |
HELD |
________________________________________________________________________________
GOVERNOR’S APPOINTMENTS
_________________________________________________________________________________
Name |
Position |
Recommendation |
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Chairman Hartley called the meeting to order at 8:38 a.m., and attendance was taken.
Attendees Sign-In Sheet (Attachment A)
CONSIDERATION OF BILLS
HB 2002 – dependent children; temporary custody– DO PASS
Keyina Sears, Senate Family Services Committee Intern, explained that HB 2002 conforms statute relating to the time period a child can be held in temporary custody.
Senator Bowers asked what is being fixed? Ms. Sears noted that in 2000, Chapter 285 increased the time frame in which a child can be held from 48 to 72 hours. In one section of statutes; however, two other statutes were inadvertently missed.
Senator Hellon moved HB 2002 be returned with a DO PASS recommendation.
The motion CARRIED with a roll call vote of 5-0-1. (Attachment 1)
Chairman Hartley noted the following were present in support of the bill: Marisa Bradbury, Department of Economic Security.
SB 1221 – sexually violent persons; confidential communications – DO PASS
Kathy Seeglitz, Senate Family Services Committee Assistant Analyst, explained that SB 1221 specifies that a sexually violent person (SVP) report may only include an expert’s opinion as to whether a person has a mental disorder and is likely to engage in a sexually violent offense. It also prohibits disclosure of any communications made in a prison-based sex offender treatment program between a counseling professional and a person who may be classified as a sexually violent person during the civil commitment process.
Senator Rios pointed out that this bill has opposition from the County Attorney’s Office. This is a bill that was introduced several years ago in the Judiciary Committee. He distributed a draft copy of the Sex Offender Program (Attachment B) at the Department of Corrections (ADC). He said that he feels this bill will improve public policy as it pertains to sex offenders in Arizona. Currently the sex offender program is conducted at the Arizona State Hospital (ASH) where people leaving prison who may still be a danger to society are civilly committed to the hospital. He questioned why that program is needed since the sex offenders are in prison for years and why the State does not provide assistance to these people while they are in prison. He discovered that many of these sex offenders do not participate in the programs that are offered in ADC because anything that they say to the therapist can be used against them for the civil commitment. This legislation tries to provide some confidentiality between the counselor or therapist and the inmate. He said that he realizes that the county attorneys want to have as much information as possible so that they can make a decision as to whether the inmate should continue to be incarcerated or civilly committed. The legislation does allow for the therapist to make that type of recommendation. The ADC program offers the same thing that the inmates would be offered if they were civilly committed to the program at ASH. The goals are basically the same. The problem is that they need to get the inmates to participate if the goal is that treatment helps sex offenders. There are arguments that some pedophiles cannot be helped. He said that he does not know if that is correct. However, if they can get more of the sex offenders to participate while they are in prison, there would not be as many being civilly committed after prison.
Senator Bowers questioned how the system obtains information that is used against the prisoner to have them civilly committed. Senator Rios replied that they obtain information because they currently have access to all physiological, psychiatric, and assessment reports and all other reports that ADC has on inmates. Senator Bowers suggested that inmates do not understand and are talking freely which is used against them later for further confinement or they are not talking freely and in spite of that are classed as uncooperative which is used against them, or there is other sufficient evidence to use against them to obtain a civil commitment. This means if they do not speak now, they are going to go to civil commitment. If they do speak now, it will be used against them and they will go to civil commitment. Either way they are committed. The basis of the bill is if they are able to speak, perhaps the civil commitment will be lessened or there will be a different report from ADC that says they have participated fully and are ready to return to society.
Senator Rios stated that if they believe that treatment helps some of these sex offenders, why not offer the treatment while the inmates are in prison. Most of these sex offenders are detained in the same units. What has been happening is that the sex offenders are not participating in treatment because many are being advised that if they participate in treatment, anything they say will be used against them later so that they can be civilly committed. If the State can afford to provide the treatment while they are inmates, then the number committed civilly will decrease. The information can be provided by the therapist to the county attorneys who make the decision.
Senator Bowers indicated that there is some sentiment that civil commitment is only a rationalization to keep these people off the street to protect society. Many people feel they should still be in prison. Senator Bowers asked how much it costs per inmate per day in civil commitment. There is a standard of care that is mandated by federal law that is quite expensive. This could help the argument to get the treatment while in prison. Senator Rios said that he has heard the same thing. He said that he feels this is a policy decision that should be made at the Legislature. If they do not want sex offenders in society again, then it is up to the Legislature to commit these people to longer terms rather than set up another system to detain them further. He said that he is trying to make it less threatening for inmates to participate in treatment.
Eleanor Eisenberg, ACLU, explained that people need to understand that this is an anomalous procedure and very rare in the law. Someone can go to prison, pay their debt to society, walk out the door, and based on self-incriminating evidence, possibly have loss of liberty again for their entire life. Some of these people who are not cooperating because of the lack of confidentiality are being held in contempt. This is an issue that the Arizona Supreme Court will be hearing. This is the only group where there is no doctor patient confidentiality. It is the only place where statements can be used against one that do not violate the constitution because it is not in a criminal context. She suggested that even if it is not unconstitutional, it is a bad and dangerous policy. Society’s interest is to have people leave prison better off than when they went in. Inmates are often told there are no programs to help and then they are civilly committed when released from prison. She stressed that the highest interest would be served through more prevention and counseling before people commit crimes. The next step is while a person is in prison, the State should do what they can to effectively release people, because both prison and the hospital are very expensive. It is money that could be spent on prevention. Sentences have become longer. There is a hearing prior to civil commitment and it is like any other trial where the burden of the State is to prove that someone is not safe to release into society. There is opportunity to present evidence.
Senator Bowers asked if there are numbers to show how many inmates have been found in contempt for not cooperating in the civil commitment hearings. Ms. Eisenberg said that she doe not have any numbers. She noted that they have filed a brief with the Arizona Supreme Court on the issue of contempt and they will be hearing it shortly. Senator Bowers questioned how many of the people who have been civilly committed are there for life. Ms. Eisenberg replied that she is not sure that anyone knows that, because a person is not sentenced there for a period of time. The inmate is just sent there and unless they meet certain conditions, they could be there for a lifetime. Senator Bowers explained that there are people who have stated that if they were released, they would recommit crimes. Ms. Eisenberg responded that those people would probably get there whether or not the confidentiality was breached. There is an evidentiary hearing and if there are people who need to stay in the hospital, giving them confidentiality with a therapist would not affect that. Senator Bowers said that they could grant a privileged communication to the court between therapist and patient. Ms. Eisenberg stated that she feels there are many ways that people are retained or set free. That is a decision that is subject to an evidentiary hearing. Perhaps the wishes of an inmate would be one factor. It is society’s best interest to make that person better, who then can return to society and become a productive member. The State pays a very high price to keep them in jail, as well as losing that person’s productivity.
Senator Hartley questioned if there is a point in the evidentiary hearing that these people are asked if they feel they will reoffend, at which case they can say yes. Ms. Eisenberg replied that is true. Senator Hartley indicated that the person’s confidentiality can be guaranteed, while they can express their own concerns. Ms. Eisenberg noted that the report that is submitted can still have a statement or opinion from a therapist without violating confidentiality.
Jerry Landau, Special Assistant, Maricopa County Attorneys Office, stated that they oppose the bill and feel it will seriously compromise the ability to use the SVP law. In 1998, there were 926 sex offenders released. Of those, 83 were referred for consideration of a petition for filing as an SVP, with 65 petitions filed. The standard used to file a petition alleging someone is an SVP is the same one used in a criminal proceeding.
Senator Bowers questioned that 83 were referred and 65 accepted. Mr. Landau replied that the county attorney’s office reviews the referral and determines if a petition should be filed. This begins the process of getting the case into the court system, which will lead ultimately to a finding beyond a reasonable doubt that a person is an SVP.
Mr. Landau noted that in 1999, 648 offenders were released. Of those, 74 were referred to the county attorneys office, and 45 were filed. In both years that equals approximately 7%. Since August, 1999, one contempt citation was issued by the Court of Appeals. The legislation was initially introduced by Senator Nolan. It was rewritten a year after its passage in line with court decisions.
Cindy Minnetti, Maricopa County Attorneys Office, indicated that one of the things that seems to be troubling in these discussions is that everyone is automatically assuming that if someone is in treatment and is expressing some of the problems they are having then that is automatically used against. She said that any therapist who works with offenders knows that it is exactly the opposite. For those individuals who are in treatment, doing well and can express that they have a deviant problem, it cannot be fixed unless they admit the behavior.
Ms. Minnetti noted that many of the individuals who are doing well in treatment may not be referred to an SVP program, because many of them will be on lifetime probation and can move from the prison system program. For those individuals who are not doing well in treatment, that information can be made available to psychologists who make referrals. When one of the previous speakers stated that this is the only area in which their statements can be used, that is not true. Under 1336 20G the privilege for communication with a psychologist or a psychiatrist is abrogated in cases of child sexual abuse. So even now if an individual is in treatment and is not in the prison system but in society, those statements can be used in court cases of child sexual abuse. It is the law in Arizona that there is no confidentiality when an individual is talking about child sexual abuse. People who do not get through treatment in the prison system are not held in contempt. Contempt is involved in a situation where a person is referred as a sexually violent predator, the county attorneys review it, a petition is filed, a court finds probable cause, the court orders an evaluation and the individual refuses. When they refuse the court order to participate in an evaluation is when a contempt citation may be ordered.
Senator Hartley noted that the previous speaker indicated that people, by advice of their attorneys, were refusing to participate and held in contempt. Better they should take the contempt than lose the confidentiality. She said that she does not feel what Ms. Eisenberg said is contrary to what Ms. Minnetti is stating. Ms. Minnetti replied that what she is trying to clarify is that it is not contempt for not participating while in prison. There has only been one attorney who has advised one individual not to participate in a court-ordered evaluation. All the other attorneys have either advised their clients and the clients have not done that. That case was upheld by the Court of Appeals that they did agree with the trial court, who found the individual in contempt for not participating in an evaluation. Many of the individuals who are not referred are those who are doing very well in treatment. A prosecutor has to prove that they have the mental disorder that makes them likely to reoffend. For those individuals who are participating in the prison treatment program who are doing well and especially those who have the lifetime probation after their prison sentences, the court knows they will be supervised when they are released. Those are the individuals who are more likely not to be referred. If they are referred, the county attorneys in their discretion have filed those petitions. Those are the people who are most likely a least restrictive alternative (LRA). Of the individuals who have been found to be an SVP, many of those are granted an LRA. It allows them to be in the community, to get a job, and return to the hospital for treatments. Those are the people who are participating in the programs and doing well.
Senator Bowers stated that 843 people were not referred in 1998 and asked if all of those went through some type of treatment in prison. Ms. Minnetti replied that she is sure they did not. It is a very difficult standard to obtain a referral for an SVP. Under statute, they have to show that they were convicted on one of the enumerated offenses. That will cut out a portion of the group. They may not have been convicted on one of the offenses listed in the statute. Then there has to be a diagnosis of either pedophilia or a mental disorder under the statute. If they do not meet that diagnosis, they cannot be referred. In order to make a diagnosis of one of the mental disorders under the statute, most likely they cannot be convicted of just one offense. There needs to be a pattern of conduct, individuals with multiple offenses, multiple victims, and repetitive conduct. Even if there is a diagnosis of one of the disorders, but the psycologist in the prison system may say that they are doing well in treatment. The psychologist may not feel there is a substantial likelihood to reoffend, because they are going to be on lifetime probation, doing well for their age, or a medical problem. There is a screening process where they have to meet all of those elements to be referred. The prosecutors review those referrals and most prove beyond a reasonable doubt that they can meet this burden. Ms. Minnetti stressed that this law is only for SVP.
Senator Bowers noted that of the 843, it is reasonable to believe that the variety of their offenses was at one end or the other. The report does not indicate how long they were sentenced or how much of a recidivism rate there was or that everyone went through treatment in prison. It said that it would be important to know of those who did have treatment, what was the success rate. Senator Bowers question how effective the ADC system is for counseling and rehabilitation. Ms. Minnetti replied that she is not aware of any studies that ADC has done. She said she knows they are evaluating individuals for the Megan’s law risk. It is very difficult to note the recidivism rate, because they have to study an individual for long periods of time, such as twenty years. What they know about child molesting is that it is a lifelong problem. There are two different groups that are involved in sexual deviancy. Unlike rapists who may have a high rate of recidivism at a younger age, but the rate drastically decreases in their 40s and older, which is different from individuals who are involved with children. Some of the Canadian studies have covered 25 years, and found that even after 20 years, the offenders are still committing crimes against children. It is difficult to determine how successful a treatment, because within five years they may not reoffend. Those types of crimes are not always reported as they happen, it is often a delayed disclosure. It is difficult to base recividism on arrest records because many are not arrested right away and many children do not tell.
Senator Bowers stated that determining effectiveness of any program is based on the data available. There has to be some data that determines its effectiveness. He indicated that a couple of years ago a law was passed stating two strikes and they are out. Who does that affect. The idea was that of those who have gone through the institution and have committed a sexual offense, if they reoffend, they are in prison forever, and they will not get the civil commitment. Mr. Landau said that he does remember the legislation. It gives the judge the ability to sentence a person to 25 years to life. Senator Bowers expressed that the idea was that there is this large population that could be moved into civil commitment at a large expense and that number could be reduced by keeping them in prison.
Shannon Slattery, Legislative Relations Coordinator, Maricopa County Public Defender, explained that as a general rule, SVP serves an approximate 10-year sentence as a minimum. That means there could be at least 10 years of effective treatment if people are allowed to confidentially to participate in these processes whereby they would feel comfortable opening up lines of communication and allowing them to address what their treatment needs are. That is a significant period of time. If, after treatment, these people are exhibiting tendencies to control behavior and they can be released to a lesser restrictive alternative, there is the option of no longer incarcerating them indefinitely at absorbent costs.
Senator Bowers questioned if those who fully cooperate have about a 10-year sentence. Ms. Slattery replied that on average, based on the offenses, the baseline sentence will be approximately 10 years. The State is already paying the housing costs, why not pay for the treatment while in prison, instead of waiting until they are released. She agreed that attorneys will very likely advise clients who fall under this program to not participate because it can be used against them. It would be committing malpractice if an attorney did not warn their client of what the probabilities were when they are released.
Senator Bowers asked if an inmate is not cooperating, how is that determination made. Ms. Slattery responded that these people have a pattern of behavior, a type of offense that is specifically designated in the code as being dangerous or presumed to be dangerous. When those patterns and trial transcripts can be observed, an independent professional could evaluate those things, and make a reasonable, clinical determination as to whether these people are likely to reoffend. Senator Bower commented that this whole issue is moot. If all that is available in the first criminal trial, why not just keep them in prison. He questioned why are they going through this exercise.
Senator Hartley explained that there is a group that is coming up for release who were sentenced before this legislation went into place. Ms. Slattery pointed out that those people who have two or more offenses will oftentimes be in the 25 years-to-life category.
Joy Marks Mendoza, private citizen, stated that she is a formerly battered woman. She explained that her son is 42 and has spent half his life in prison for ten felonies and has served about half of his term of 25 years for kidnapping, which was actually holding a woman against a fence for 30 seconds. He was trained by his father to be violent. She said that if he could trust the counselor would not use the things he says against him then counseling would help him. He has never had one day of treatment. She indicated that there is very effective treatment for domestic violence offenders, where they are no longer allowed to give the blame to their wives, where they have to take responsibility, and that there is no excuse for abuse. It seems that type of treatment could also be given to someone who grew up in a violent home. It would not do any harm and might do some good. She commented that she would be very happy for her son to receive treatment.
Senator Bowers asked if her son has had any treatment. Ms. Mendoza replied none. Senator Bowers questioned if his offense merited treatment, meaning was it stipulated in the sentencing guidelines. Ms. Mendoza answered that the offensives were attempted rape and she is not aware that it was requested that he have treatment. The State is wasting the time that this person is in prison. Maybe he could have changed with some outside influence. Senator Bowers asked if it is her opinion that her son will fall under this problem, that when he gets close to the release date that he will be appraised as worthy of civil commitment. Ms. Mendoza explained that her son has been told by the judge that he is a sexual predator and gave him the maximum sentence of 25 years. She said what could it hurt to have some counseling.
Senator Peterson remarked that he is not convinced that all the money spent on treatment is working. He said that the idea of confidentiality is important.
Senator Hellon moved SB 1221 be returned with a DO PASS recommendation.
The motion CARRIED with a roll call vote of 5-0-1. (Attachment 2)
Chairman Hartley noted the following were present in support of the bill: Dr. Pam McClany, Mental Health Program Manger, Department of Corrections and Joy Marks Mendoza.
Chairman Hartley noted the following were present in opposition of the bill: Edwin Cook, Arizona Prosecuting Attorneys Advisory Council.
SB 1057 – child support; enforcement – DO PASS AMENDED
Barbara Guenther, Senate Family Services Committee Analyst, explained that SB 1057 modifies self-employed-parent security deposits, suspension of interest and requests for judgment relating to support arrearages. The bill restricts the court from suspending previously accrued interest on support arrearages when a petitioner is incarcerated or incapacitated. It prohibits the court from ordering a self-employed parent in arrears to establish a security deposit unless the person is in arrears for 90 consecutive days and limits Department of Economic Security (DES) from making payments to an obligee from support security deposits, to current child support only. It eliminates the statutory requirement for Department of Economic Security (DES) to provide proof of service on a request for judgment of arrearages and the accompanying affidavit and eliminates the time frame for the court to hold a hearing on a request for judgment of arrearages. The bill also extends available enforcement methods to support orders issued through a dependency proceeding, through specified means and repeals an obsolete section requiring DES to set a child support scale and formula. It replaces “obligee” with “party entitled to receive support” and “obligor” with “party obligated to provide support” and makes technical and conforming changes.
Ms. Guenther noted that there are two amendments. There is a four-line Solomon amendment dated 1/30/01 at 1:18 p.m. and Petersen amendment number 2 dated 1/22/01 at 1:20 p.m. These two are in conflict and the members will need to decide which one will go forward. In terms of the suspension of interest accrued on support arrearages, currently the law states that if a petitioner is incarcerated or incapacitated. The Petersen amendment defines a person who is incapacitated as a person who is not able to make a decision because of a disability. The Solomon amendment replaces “incapacitated” with a person who is physically or mentally disabled to the extent that the person is unable to maintain employment.
Judge Armstrong, Maricopa County Juvenile Court, stated that he is in support of the bill because he was involved with a work group of the child support coordinating council that is proposing this bill. That group is composed of lay people, members of community, Legislators, and judges. The amendment deals with Section 25-327 which allows the court to suspend future interest on child support obligations when an obligor is incarcerated or incapacitated. That bill was passed in the last session, but did not define incapacitated. The work group of the child support coordinating council undertook to define incapacitated, which came from Title 14, which is the probate code and deals with the inability to make and communicate decisions. Senator Petersen’s simplifies the definition and indicates that a person is incapacitated if that person is unable to make or communicate a decision. Senator Solomon’s amendment puts the focus on the inability to work. Considering that this bill is dealing with child support, he said that Senator Solomon’s amendment makes more sense.
Senator Lopez asked if at a later date there would be any trouble in combining the two definitions. Judge Armstrong replied that since this bill deals with child support, the ability/inability to work is a critical factor.
Senator Petersen withdrew his amendment.
Chairman Hartley noted the following were present in support of the bill: Joy Marks Mendoza, Judy Bushone, Project Manager, Clerk of Superior Court; Mark Armstrong, Administrative Office of Courts (AOC); Dianne Post, Coalition of Domestic Violence; and Russell Smolden, Salt River Project (SRP).
Chairman Hartley noted the following were present in opposition of the bill: Rick L. Tiesort, Arizona Coalition Against Domestic Violence; and Jeanette Duborg, Arizona Coalition Against Domestic Violence.
SB 1055 – divorce; marriage counseling – DO PASS AMENDED
Ms. Seeglitz explained that SB 1055 extends the amount of time a judge may continue a dissolution of marriage hearing to six months. Allows a judge to require a couple seeking dissolution of marriage to attend a minimum of six marital counseling sessions with a certified marriage and family therapist. There is a eight-line Hartley amendment which removes the minimum number of counseling sessions and includes the option for individual counseling. It contains an exemption from joint counseling for domestic violence situations and defines domestic violence. It does not require a report be made to law enforcement. There was a drafting error in the amendment and a verbal will be needed.
Senator Hellon moved the following verbal amendment to the amendment:
On Line 2, after 19, insert .1
The motion CARRIED by voice vote. (Attachment D)
Chairman Hartley noted the following were present in support of the bill: Kathy Herrod, Center for Arizona Policy.
Chairman Hartley noted the following were present in opposition of the bill: Joy Marks Mendoza; Dianne Post, Director, Arizona Coalition Against Domestic Violence, Jeanette Duborg; Rick L. Tiesort; and Helen Stern.
SB 1235 – juvenile group home – DO PASS AMENDED
Ms. Guenther explained that SB 1235 requires the licensing authority to consider comments from municipalities before renewing a juvenile group home license, expands the information included in the central registry of juvenile group homes and requires the Department of Health Services to provide central registry information to municipalities on a regular basis and on request. The bill requires a licensing authority, before renewing a license, to consider comments on specified topics received from the municipality where the group home is located. It restricts municipality comments to public records applicable to the current licensure period and expands required information included in the central registry of juvenile group homes. It also adds number of residents, nature or type of disability of the residents and licensing authority contacts. The bill requires DHS to provide central registry information to the municipality where the group home is located on a regular basis and upon request. It also requires group homes to comply with laws. There is an eight-line Petersen amendment which strikes the requirement for central registry to include a description of the type and nature of the disability of the residents. It adds under the section regarding complying with laws that it also includes all reasonable accommodation requirements. It also specifies that the regular reporting of the information on the central registry is on a quarterly basis.
Paul Barnes, President, Neighborhood Coalition of Greater Phoenix, mentioned that he works with many neighborhood organizations throughout Phoenix. He said that he fully supports the ideas, intents, and philosophy behind the Fair Housing Standards Act particularly as it involves juvenile group homes. He said that they also recognize that depending on the size of the homes, the sensitivity of the operators, and the physical facilities that they can be a problem in some neighborhoods. More importantly they can have a detrimental affect on the operation as far as the children are concerned. Most of the juvenile group home operators are very conscientious. However, there is no denying that these group homes are businesses. One of the problems is that these businesses tend to expand. One owner may operate several of the homes, they become overextended financially, and that overextension affects lease payments. This causes difficulty in the management of the homes, and as well the facilities begin to run down and needed equipment no longer available. He said that the thing they like about this bill is that the neighbors living close to these homes are in the best position to collect data on the proper operation of these homes in respect to safety and health of the occupants. They pass the information on to the municipalities, who can pass it on to DES. DES does a good job but cannot make the type of periodic inspections that the neighbors would be able to do.
Joanna Peters, Block Watch, remarked that she is sad to report that not all group home operators are interested in taking care of the children. Group homes represent a substantial income for their operators. In some cases, unscrupulous operators are exploiting these children for monetary gains. She said in the case of her neighbor, each child is worth $95 per day or $34,000 a year. This person operates five homes with 40 children and can produce an income in excess of $1 million. In 1997, this person bought a home in Cave Creek for $325,000 and to date owns more than $750,000 in real estate which took only 18 months to accumulate and stated that all down payments came from relatives. It would appear that $1 million would provide adequate housing, sufficient supervision, clothing and food for the children. For some unknown reason it does not. Christmas 1997, a neighbor wanted to provide presents to the children in the home. She received lists from the ten children in the homes and at the top of each list was some of the most basic items such as under garments, razors, and clothing. In addition, after the group home came into the neighborhood in June, 1995, through March, 1998, the police calls jumped 41%. Approximately 49% or 367 of the calls came from the shelter’s own aides and residents. Runaways were 278 of those calls with the remaining due to fights, incorrigible juveniles, drugs, glue sniffing, sexual assault, molestation, marijuana, felony warrant, criminal damage, thefts, threats, assaults, and others that required police attention. She said that she was surprised when a police detective came to her home about a murder. After checking with her neighbors, she found that there were more problems than just a police car in their area every three days. The neighbors were convinced that the children were not being treated well. The neighbor met a child who arrived at her doorstep with a slashed wrist Luckily the neighbor was a former police officer and was able to contain the wound and save the child’s life. Passing this legislation will help improve a child’s quality of life, it will hold operators to a higher level of expectation, and will lead to better care.
Ms. Peters noted that on January 24, 2000, Safe Haven Children Services (her neighbor) was granted another license to care for Arizona’s children. She said that she has reported the above information to DES and is still baffled why they would continue to allow this operator care for children. First she broke her contract with the community. After the Block Watch meeting of May, 1998, more than 25 neighbors were promised that the children would not be older than 10 or 11. Not less than two years later, the contract was broken by the change in the home’s age group. No one contacted Block Watch to let them know. It only came to her attention when the children were left outside nearly an hour unattended after the school bus drop them off. A child had to come over and let her know so that she could call the home’s operator to let them into the home. In addition, Jennifer Steel, the Executive Director of Safe Haven Children Services and its parent company has amassed more than $500,000 in tax liens. It appears that they were taking their employees’ withholding and not paying the respective tax authority. Ms. Steel advises that this money was used to care for the children and by this admission it appears that Safe Haven needs not only the $95 a day, but in addition four or five times that amount. After using the employees’ withholdings to care for the children, one of DES own employees described the facility as dirty and needing a good cleaning. This facility was also missing a master bedroom door, the roof needed repair, clothes dryers were not working, and there was a disturbing pest control problem involving cockroaches and mice. DES documented this in one of their scheduled visits. Safe haven issued an operating license in July, 1999, even though it missed a tax audit for 1998. Per DES guidelines, they are not suppose to issue a license to an agency that has not completed its tax audit. By March, 2000, it was still missing the tax audit from 1998 and 1999. The living environment for the children is atrocious. She knows this because she toured the group home and found the children’s bunk beds to be a metal institution quality bunk bed. There were four girls housed in the master bedroom which is 12 feet by 16 feet. No care was given to the privacy of these children. There were no pictures on the wall, no teddy bears, no attention to detail that would make a house a home. If none of these things are done, these children will simply trade these beds for ones in prison cells. These children are welcomed in any neighborhood, but they need love, care, attention, and guidance. Any community will welcome a home that cares for its children. This legislation will help children. No children should have to suffer the fate of being cared for by someone who operates too many facilities to notice the tears of a troubled child. This is not how anyone imagines their tax dollars are being spent. Who will pay for the dreams that die each night for each of these children that are housed like animals in cages.
Bev Herman, Arizona Associated Providers of Behavior Health Coalition, indicated that she opposes this bill. She said that she was here last year working on provisions for group homes because of one or two situations that resulted in some traumatic things that happened within some neighborhoods. Those provisions are included in statute. The registry is not in place yet and will not be until 2002. There is not one thing in this bill that will improve the situations identified by the person for Block Watch. The legislation put in place last year states the agency will be sanctioned for not following through on complaints. She said that she worries about giving confidential information to the cities. This information would be distributed to approximately 43 jurisdictions. She said that she does not feel it is a good thing to provide that much disclosure.
Ms. Herman related an incident that involved a behavioral health provider who leased a five-acre site that had a home in the middle of the site. There were going to be some juvenile behavioral health placements in this home. The media found out this was going to be a group home and had a field day with interviewing neighbors. The opening of the home had been delayed. At the end of several weeks, the home had been accused of poisoning dogs, thefts and graffiti in the neighborhoods and in reality no one had ever been placed in the home.
Ms. Herman said that people are threatened by anything that is different in their neighborhood. She said when she reads language that allows cities to have public hearings on things such as spacing, the Legislature would be jepordizing the community placement policy.
Ms. Herman referred to page 1, lines 13 and 14, a group home would have to comply with all federal, State, and local laws, including zoning laws and spacing requirements that do not violate federal and State fair housing laws. This bill does violate federal fair housing law. She pointed out that it will be Arizona’s Attorney General fighting this issue if the bill passes. The League of Cities and Towns has long wanted to have control over things that happen within their boundaries. They do not like the fact that they cannot provide zoning for schools. The National League of Cities went to Congress last year to get permission to regulate group homes. They have still withdrawn that effort. Congress chose to override local zoning in creating federal fair housing laws to prevent discrimination against people who have disabilities. It is not so much of what that says, but the subsequent court decisions make it very clear that the only way to legislate against a home that contains people with disabilities is if that same provision applies to every other home.
Ms. Herman explained that the system works as it should. Neighbors think that these children came from somewhere else, they did not. They came from these neighbors and are entitled to live in these neighborhoods. She said that she feels this bill is a serious setback for those efforts.
Senator Solomon said that when they reached a consensus on the bill last year that they were done with this. She said that she worked with Representative Daniels and believed that they have reached a compromise and they passed the bill. She noted that there may be a violation of the Federal Fair Housing Act, as well as a violation of privacy rights. Ms. Herman replied that she too has a concern about privacy rights. There is a lot more information that would be received by all parties, breaching confidentiality.
Senator Solomon referred to the registry and noted that DES does not keep this information in their central registry. Ms. Herman replied that the registry is located in Department of Health Services (DHS).
David Miller, Lobbyist, Arizona Coalition of Human Service Providers, pointed out that he represents approximately 65 agencies across the State who deliver a broad spectrum of human services including behavioral health, child welfare and juvenile justice. While not all group home providers are members nor do all the members provide group home services, a substantial number of them do. He noted that this is the fifth year in a row that they have been at the Legislature for this bill. The bill was defeated several times. Last year they formed a large coalition of people including neighborhood associations, developers, agencies delivering service, and State departments that reached a position that they all agreed on that they felt was a responsible monitoring of an industry. He said that the language in this bill was agreed to last year to not be included in the bill. It is their position to give the statute time to work. Last year’s bill has just begun to function because it took time for the departments to put the information together and begin to do it. He said that this is not addressing a fault with the legislation that already exists. They are here dealing with a very thinly veiled version of a very old message, that people respect the need for the service but do not want it in their our community.
Kevin Moran, Consultant, City of Mesa, explained that group homes do provide a necessary and needed service to their clients and to the entire community. This bill is not about bashing the industry but about helping municipalities do their jobs that they are required to do in respect to zoning in neighborhoods. That is what the bill is trying to achieve, and It will do so in three ways. One is the registry which is in formation, which does not have to be in operation until January, 2002. The draft of the group home registry includes much of what is already in the bill. He noted that the registry will include contact names for the group homes and locations, including any satellites. No other required confidential information will be included. The location and contact person for the group home does not violate Federal Fair Housing Act. They have tried to address fair housing issues directly and would not include in the registry any statement about the nature and type of disability. If there is a problem in a neighborhood, the contact person is available which will help the cities do their job. The greater investment in behavior health would argue for this bill. This is a complicated issue and they want to ensure the neighborhood issues are addressed in an appropriate system.
Mr. Moran noted that second is licensing renewal. It says the agency will consider when they relicense a group home, information within that licensure period that are on the city’s files. The third issue is compliance with local zoning and spacing requirements. He said that he does not agree that this violates State and federal fair housing laws. With the amendment, it strikes the balance that is needed. Nothing that anyone does will take away the requirements of State and federal fair housing laws which requires reasonable accommodations for persons with disabilities.
Senator Solomon referred to page two of the bill, line 37 that discusses the safety of the neighbor. The safety of the neighbor was something no one was able to address last year. No one could determine if a neighbor is someone next door, across the street, a half mile away, a mile away, in the same community, or in the same city. That was a big issue last year and again it appears this year. Mr. Moran replied that those standards would remain the same.
Senator Solomon said that in all the discussions in previous meetings, the safety of the neighbor was always an issue. It is very nebulous. She said the language needs to come out of the bill.
Senator Hartley said that the City of Phoenix Council has voted in support of this bill but it did not reference any resolution.
Senator Petersen commented that as chairman of the Family Services Committee for the past four years, one of his disappointments is that they had not addressed all the issues of group homes. He said that he does not feel this is a done issue. He pointed out that this bill has been worked out with the Attorney General’s office. Mr. Moran replied that the Petersen amendment reflects the Attorney General’s comments, but his understanding is that they do not support the bill and still have concerns. Senator Petersen stated that he would be interested to know if Senator Daniels supports the bill. He said that what is happening in the group homes is a serious issue.
Ms. Herman noted that Senator Daniels told her that she was happy with the bill that she accomplished last year.
Mr. Miller pointed out that they are willing to look at the issues as they come. He said that they would like to give the original bill that passed time to work. If it does not work, they will be happy to work out the issues. He said that they do not pretend to be the only ones who can be aware of those issues or the only ones who can address them. He said they do want to be responsible members of the communities.
Mr. Murray Snow, Lobbyist, Arizona Association of Providers of Persons with Disabilities, stated that he has been an attorney for 13 years, representing providers of group homes. He said that he wanted to address the legality of the bill. He said that the bill violates the Federal Fair Housing Act amendments. In the fact sheet, provisions requiring informational meetings and comments from municipalities was deleted from last year’s bill, because they violated Federal Fair Housing Act standards. The fact sheet further states that the bill now requires a licensing authority to consider comments received from municipalities. As far as the Fair Housing Act goes that is a distinction completely without a difference. He noted that he has several cases where these issues were decided in federal courts. In all the cases, they required a neighborhood advisory group to be able to comment on the operation of group homes. Both of those opinions noted that the mere fact that there is a separate and distinct requirements for a group home is discriminatory. He said that it is doubly discriminatory in this case because there is already a licensing authority that looks at these matters. The fact that this is duplicated in municipalities The right to collect negative or other comments regarding group homes is in itself discriminatory. He further pointed out that there is nothing that prevents a municipality from administering its zoning ordinances in a fair way to group homes. As long as a group home is violating a nondiscriminatory city ordinance they can oppose that group home without violating the Federal Fair Housing Act. He said that he is a neighbor to a group home. Next door there is a home with teenagers. The non-group home neighbor throws all kinds of trash in the yard and creates all types of problems. The group home is very exemplary. Does that mean he can go to his municipality and have a special license created by law where he can complain about his non-group home neighbor. The answer is no.
Senator Petersen asked what the solution is for the neighbors who are having problems. Mr. Snow replied that there is nothing that prohibits municipal ordinance that are not discriminatory from being administered to group homes. Senator Petersen question if the cities are not administering their ordinances properly. Mr. Snow responded that the cities have the authority to administer their ordinances in an evenhanded way.
Senator Hartley reiterated that city ordinances apply to group homes as well as private homes. Senator Petersen said that there are citizens coming to him that are having problems. He asked if the city ordinances were applied properly, it would solve the problem. Mr. Snow replied that there are two different forms of recourse that are available without this bill. The first he already suggested which is to have the city enforce the ordinances that are not discriminatory. There is nothing that prevents the neighbors from going to the licensing authority as it currently exists and making their complaints to the appropriate authority designated by law to issue that license. What this legislation does is create a unique place in the city, in addition to DES licensing which handles this problem, which becomes a depository for the complaints of the group home. It does not provide for the cities to enforce their already existing ordinances. The law as written is extremely unclear. It seems to suggest that vesting and licensing is something that cities will have mandatory participation. That in itself violates the Federal Fair Housing Act and creates all kinds of administrative problems. The State has already set out clear licensing and safety procedures. Creating a double procedure is very confusing and will create all types of conflicting standards. Federal courts have said “discrimination often takes the form of special rules that are allegedly designed to benefit handicap persons.” The courts have uniformly struck those and will probably strike these.
Mr. Snow noted that he was interested in Senator Solomon’s comments about privacy. He said those are of great concern. He said in a similarly related case, the case was brought by a former resident of a group home, not the group home operator. He sued claiming that because of the city advisory council, his life was subject to far more investigation and curiosity by his neighbors than others. That by itself violated the Federal Fair Housing Act. The Court of Appeals declared that he had the right to bring that claim under the Federal Fair Housing Act. He suggested that if the committee passes the bill, not only will it violate the Federal Fair Housing Act, it will allow the operators to challenge and succeed in court as it applies to them. The State will also create a right for every resident in every group home whose life will be subject to increased scrutiny because neighbors will be able to deposit comments at the municipalities. He said that as a citizen who cares about people with disabilities, he said that the members should not vote to pass this bill. However, as a lawyer, this will be a wonderful opportunity for litigation to be paid for by the State.
Senator Petersen noted that some of these arguments were brought up last year when discussions were started. He said that they do not see the problems occurring.
Senator Solomon said that last year’s bill does not include anything that would be considered a violation of the Federal Fair Housing Act.
Senator Bowers asked if under the Federal Fair Housing Act, could the licensing authority be removed from the State. Mr. Snow replied that the State still has the power to license and impose safety regulations. They do not have the power to do so in a discriminatory fashion. Senator Bowers pointed out that if a procedure to require double licensing was contrary to the housing act, if the licensing authority was given to the cities, would that particular argument be moot. Mr. Snow responded that it depends on the discriminatory application of that standard. If it was done just for group homes with disabled people, it would still likely violate that act. Senator Bowers related that a school district had brought a problem to him because three group homes were built within their school district and they were required to provide an array of services. They would liked to have had some information upfront. Senator Bowers asked if that is conflicting. Mr. Snow answered that it involves another federal law which requires that school districts make available educational opportunities to the disabled. In connection with that law it also provides funding to local schools. He said that he suspects that in terms of requiring notification to schools, it may be something that the courts would expect the government to do, but it is not something that can be imposed on providers of group homes.
Senator Bowers asked if there is a method whereby schools may be made aware of demands on the districts from the placement of group homes in their districts.
David Matthews, Program Administrator for Licensing, DES, stated that it was his understanding that the intent of the previous legislation was to have the registry established, which would be a method of communication.
Senator Bowers questioned the timeliness of the registry. How often is information made available to the registry. Mr. Matthews responded that is a requirement of DHS. From the standpoint of DES, they would provide DHS with that information as it became available. DES does require prior notification as part of the initial application of zoning. Senator Bowers asked if there is any state where the licensing authority has been divested from the state to a lower level of government. Mr. Matthews replied no.
Joni Golden, DHS, referred to the question of timeliness of the registry and noted that the registry is updated as it is received. Senator Bowers asked what is the process by which the information is received and from whom. Ms. Golden responded that the information is received through phone calls and written messages. Senator Bowers questioned if DHS makes the decision has to how many people can be in a group home or if a home will be opened. Ms. Golden replied that DHS licenses a facility for six beds. Usually group homes range from four to eight beds. Those facilities are licensed to provide certain behavioral health treatment services. She said that they do not designate if a child can be placed in a resident as long as they meet the criteria that has been approved. Senator Bowers asked if someone referred to the registry, they would be able to find out what complaints had occurred relative to a particular group home and that it is licensed properly. Ms. Golden indicated that what a person could glean from the registry is the name of the facility, where it is located, who the emergency contacts are, who the administrator is, and who the facility contracts with. She noted that what is currently available and has been used by some of the municipalities is the public files which contains all the complaints. It is difficult to tell someone how many complaints are regarding physical abuse. There may be many complaints but that may not be substantiated. The database lists all the agencies DHS licenses and what services they provide and the number of beds they are licensed to treat.
Senator Bowers questioned if there is a law that precludes transferring information to a school district regarding a new home opening in their district. If there was some upfront time, the schools would be better prepared for the group home children. Ms. Golden said that she does not feel there is a law that precludes that. Once they license a group home, it is part of the public data. Senator Bowers asked if the school district could glean from the database any information that would explain any of the disabilities of the children in the new group home. Ms. Golden replied not specifically as to the actual disability because confidentiality laws exist. There is a program that would identify the treatment programs that would be needed for these individuals.
Senator Solomon noted that most of the children have an individual education plan (IEP); it is noted on the IEP what the disabilities are. Senator Bowers pointed out that an IEP cannot be developed until the child is in school. Senator Solomon explained that if the child has already been in a school, an IEP would be coming with them.
Senator Solomon asked if there is capacity in the registry to collect this additional information and provide it to the municipalities and there will be no additional cost to DHS. Ms. Golden questioned what additional information she was referring to. Senator Solomon noted that in the original bill, DHS is required to collect specific information and with this bill there will be additional information required to be collected. Ms. Golden replied that it will be a significant increase of keeping the information updated.
Senator Petersen noted that he will amend the bill removing any language that could affect the Federal Fair Housing Act.
Senator Solomon stated that if they remove the language that Senator Petersen is referring to, it will be the same bill that was passed last year.
Chairman Hartley noted the following were present in support of the bill: Kevin Dementa, City of Phoenix.
Chairman Hartley noted the following were present in opposition to the bill: Sherry Walton, Mental Health Association; Susan Kanada, ARC of Arizona; Dave Cutty, CEO, Arizona Providers Association.
SB 1312 – appropriations; adult protective services – DO PASS
Ms. Sears explained that SB 1312 appropriates approximately $2.2 million in FY 2001-2002 and $2.3 million in FY 2002-2003 to the DES from the State general fund for Adult Protective Services (APS) central intake and maintenance of the investigation rate.
Senator Gerard noted that she sponsored this bill last year and is a recommendation from the Long-Term Care Taskforce in how they can improve services, care, and safety especially for senior citizens. One of the things they reviewed was expanding the availability of adult protective services at DES. Currently everything is fine, if there is a case between 9 a.m. to 5 p.m. Monday through Friday. However, if it is after hours or on the weekends, there is no service available. DES is so inundated that they cannot get to all the cases. The other thing that is important is that calls can come from any number of sources asking for help. APS is the first line of defense for people in private homes. This is desperately needed to protect elderly and disabled people receiving long-term care.
Timothy Smultz, Foundation of Senior Living, stated that they are a large provider of home care services. He pointed out that APS always seems to get lost in the shuffle. Senator Bowers asked if there have been any discussions as to other alternatives other than this particular system. Mr. Smultz indicated that he remembers when there was a national report that showed Oregon had half the staff that the Arizona APS did. Oregon had a very comprehensive home and community-based system of care. The biggest prevention of expanding APS is a really good system of care. He said that he feels there are many referrals that are not being addressed.
Ron Travis, private citizen, explained that he is a caregiver for ten years. As the member of the Alzheimers policy committee and also a member of support group meetings, he has heard many stories of people who cannot get help on the weekends. It is very sad.
Senator Hellon moved SB 1312 be returned with a DO PASS recommendation.
The motion CARRIED with a roll call vote of 3-2-1. (Attachment 6)
Chairman Hartley noted the following were present in support of the bill: Kathleen Pagel, Alzheimers Association; Donald Vance, AARP; and David Miller.
SB 1239 – divorce; visitation pending final decree - HELD
SB 1226 – in-home elderly care; tax credits – HELD
SB 1357 – divorce; health insurance; continuation – HELD
There being no further business, the meeting was adjourned at 11:30 a.m.
Respectfully submitted,
Carol Dager
Committee Secretary
(Tapes and attachments on file in the Secretary of the Senate’s Office/Resource Center, Room 115.)
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Committee on Family Services
17 January 31, 2001
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