New California Sexual Abuse Prevention Legislation—Requirements for ‘Youth Service Organizations’

Attorneys Greg Love and Kimberlee Norris, of MinistrySafe, address issues in a new California law. Elements of this law may be soon in your state. To whom does the new law apply? What action is required by the new law? How can a ‘Youth Service Organization’ comply? How does the new law create Insurance Carrier involvement?

In the wake of the largest sexual abuse settlement in US history, Assembly Bill No. 506 (AB506) became law in California on September 16, 2021. The legislative history of AB506 makes it clear that lawmakers in California do not want a repeat of the sexual abuse crises facing Boy Scouts of America.

The new law is aimed at ‘Youth Service Organizations’ and outlines requirements related to training, background checks and policies. At a glance, this appears to be a step in the right direction; upon closer review, the new law creates difficulties likely unexpected by the drafters. Nonetheless, Youth Service Organizations now have a new legal Standard of Care related to sexual abuse risk management.

As sexual abuse attorneys working in the realm of sexual abuse and assault for more than three decades, we provide guidance to organizations navigating sexual abuse issues. An element of that guidance is assisting organizational leaders to understand the effect of changing abuse prevention legislation, and how best to comply. AB506, well-intentioned but problematic, has created a need for guidance for child-serving organizations in California. For organizations that were doing little or nothing related to child abuse prevention, AB506 will raise the bar; for organizations already employing Safety System elements (training, background checks and policies), AB506 requires very little, but adds inconvenience and additional cost in order to comply with new background check requirements.

Standard of Care

Now more than ever, child-serving organizations are asking: what can we do to protect children from sexual abuse in our programs? More directly, what is legally required of child-serving programs? Legal and licensure requirements create Standard of Care: a legal term expressing the concept of taking reasonable steps to prevent a foreseeable risk. Child sexual abuse constitutes a known and foreseeable risk for child-serving organizations: what reasonable steps must an organization take to prevent child sexual abuse?

In essence, every child-serving organization must implement an effective Safety System that takes into account the type of services provided and the populations served; some programs present higher risks than others.

Standard of Care develops over time as specific risks are better understood. Standard of Care (or what is ‘reasonable’) can be impacted or influenced by licensure requirements and legislation. With respect to child sexual abuse risk, ‘reasonable’ action steps include a combination of training, screening, background checks, policies and a system for record keeping. Each of these necessary elements vary depending on the type of organization, populations served, facility and the type of programs or services offered.

AB506 Establishes a New Standard of Care

Though all Youth Service Organizations have been required to take reasonable steps to address the known risk of child sexual abuse in the past, AB506 provides Standard of Care refinement and definition. All Youth Service Organizations in California should have an effective Safety System currently in place, requiring (1) training, (2) background checks and (3) policies: AB506 promulgates specific requirements related to each of these Safety System elements. Unfortunately, the attempt at refinement has created some confusion and difficulty.

Analysis of the New Law

Sexual abuse allegations, lawsuits and settlements continue to dominate headlines in the media. State lawmakers in California responded with Assembly Bill 506. AB506 is not a stand-alone piece of legislation; it is an amendment to existing legislation. More specifically, AB506 becomes law as Section 18975 within Chapter 2.9 Youth Service Organizations, which falls under Division 8 of the Business and Professions Code.

The Legislative Counsel’s Digest provides a summary of the new law, as follows:

This bill would require an administrator, employee, or regular volunteer, as defined, of a youth service organization, as defined, to complete child abuse and neglect reporting training, as specified. The bill would require an administrator, employee, or regular volunteer of a youth service organization to undergo a background check, as specified. The bill would require a youth service organization to develop and implement child abuse prevention policies and procedures that, among other things, ensure the reporting of suspected incidents of child abuse to persons or entities outside of the organization.

Unfortunately, child-serving organizations required to comply with the new law do not have the luxury of relying on the Digest description. The law is technical, not anecdotal; it requires a precise understanding of what is required to comply with this new Standard of Care in the state of California. The new Section 18975 provides as follows:

Division 8 Business and Professions Code, Chapter 2.9 Youth Service Organizations, Section 18975.

(a) An administrator, employee, or regular volunteer of a youth service organization shall complete training in child abuse and neglect identification and training in child abuse and neglect reporting. The training requirement may be met by completing the online mandated reporter training provided by the Office of Child Abuse Prevention in the State Department of Social Services.

(b) An administrator, employee, or regular volunteer of a youth service organization shall undergo a background check pursuant to Section 11105.3 of the Penal Code to identify and exclude any persons with a history of child abuse.

(c) A youth service organization shall develop and implement child abuse prevention policies and procedures, including, but not limited to, both of the following:

(1) Policies to ensure the reporting of suspected incidents of child abuse to persons or entities outside of the organization, including the reporting required pursuant to Section 11165.9 of the Penal Code.

(2) Policies requiring, to the greatest extent possible, the presence of at least two mandated reporters whenever administrators, employees, or volunteers are in contact with, or supervising, children.

(d) Before writing liability insurance for a youth service organization in this state, an insurer may request information demonstrating compliance with this section from the youth service organization as a part of the insurer’s loss control program.

(e) For purposes of this section:

(1) “Regular volunteer” means a volunteer with the youth service organization who is 18 years of age or older and who has direct contact with, or supervision of, children for more than 16 hours per month or 32 hours per year.

(2) “Youth service organization” means an organization that employs or utilizes the services of persons who, due to their relationship with the organization, are mandated reporters pursuant to paragraph (7) of subdivision (a) of Section 11165.7 of the Penal Code.

Who is Impacted by AB506?

AB506 creates a Standard of Care for Youth Service Organizations in California. Who fits this description under the new law? Unfortunately, the new law is unclear; in fact, the definition is somewhat circular.

AB506 defines a Youth Service Organization relying on Paragraph 7 of California’s Penal Code Section 11165.7(a), which provides a list of mandated reporters of child abuse and maltreatment. Paragraph 7 identifies the following person(s) as mandated reporters in California:

Paragraph 7. An administrator or employee of a public or private youth center, youth recreation program, or youth organization.

Youth Service Organizations Defined

Section 18975(e)(2) defines a Youth Service Organization as follows:

“Youth service organization” means an organization that employs or utilizes the services of persons who, due to their relationship with the organization, are mandated reporters pursuant to paragraph (7) of subdivision (a) of Section 11165.7 of the Penal Code.

A Youth Service Organization is defined as an organization that utilizes the services of an individual described in Paragraph 7. Following the logic of that construct, a Youth Service Organization is defined as an organization that utilizes a person from a youth organization.

Broad Interpretation

Clearly, this definition lacks clarity. How, then, should a child-serving organization respond? When interpreting legislation intended to protect children, best practice is to interpret the law broadly, giving the definition an inclusive meaning or construction, rather than restrictive. If an organization provides services to children—in a broad sense—assume that the legislation applies to that organization. Until the legislation is modified or refined, churches, scouting programs, camps, youth sport organizations, mentoring programs and similar child-serving organizations should take note.

New Training Requirement

Prior to this legislation, effective training should already be a component of a necessary Safety System for organizations serving youth; AB506 adds additional training topics through an indirect reference to an existing California training.

The new law requires Youth Service Organizations to provide training in child abuse and neglect identification and reporting. Though AB506 does not provide specific guidance (list of topics, length of training, delivered live or online, frequency of retraining, requirement of a quiz, record keeping process, etc.), it does note that organizations may utilize the mandated reporter training provided by the Office of Child Abuse Prevention in the State Department of Social Services. Though not required, the reference to the SDSS mandated reporter training provides some guidance concerning topics that should be covered—particularly related to reporting requirements.

How to Comply with AB506’s Training Requirement

Clearly, requiring staff members and volunteers complete the SDSS mandated reporter training—four hours in length—is an option. The SDSS training provides information about the California child welfare system, forms of maltreatment (sexual abuse, physical abuse, neglect, bullying, emotional abuse), as well as the California reporting requirements. Unfortunately, SDSS provides no online system allowing an organization to send, track, refresh or manage training.

Though not emphasized in AB506 or the SDSS mandated reporter training, training that equips staff members and volunteers to recognize the grooming process of the offender and common grooming behaviors is key for understanding, identifying and preventing child sexual abuse. Learn more about MinistrySafe’s Child Abuse Prevention Training.

New Background Check Requirement

Like training, criminal background check requirements aren’t new to any discussion of sexual abuse risk in Youth Service Organizations. Currently, the majority of Youth Service Organizations rely on third-party vendors to provide background check services. Background check providers offer a variety of search package parameters to gather and compile records, including municipal, county, state, federal, civil and driving records. Youth Service Organizations can choose a background check provider based on pricing, online ease-of-use, integration into existing software or other factors.

Background check providers offer critical services to Youth Service Organizations, facilitating convenient access to criminal (and other) records, providing the ability to order, review, archive and refresh background checks online. In short, the demand for background information has led to the creation of various background check platforms and systems to accommodate the needs of Youth Service Organizations.

AB506 promulgates requirements that will significantly impact the services that background check providers currently offer to Youth Service Organizations. The new law, requiring an unautomated process that involves fingerprinting, cannot currently be provided by existing background check providers. These new requirements, assuming they stand, will require administrators and applicants to become far more involved in the background check process.

AB506 Background Check Requirement

Section 18975(b) provides as follows:

(b) An administrator, employee, or regular volunteer of a youth service organization shall undergo a background check pursuant to Section 11105.3 of the Penal Code to identify and exclude any persons with a history of child abuse.

Youth Service Organizations are now required to perform a background check on all administrators, employees and volunteers pursuant to Section 11105.3 of the Penal Code. What does this require?

A highlighted version of Section 11105.3 of the Penal Code is attached hereto as Appendix A. Briefly, the background check required by the new law includes the following:

the employer makes a request for all convictions or arrests pending adjudication from the California Department of Justice; and
the request must include the applicant’s fingerprints and shall be made through the use of a form approved by the California Department of Justice.

This new requirement creates serious challenges for Youth Service Organizations—likely not anticipated by the California legislature.

Youth Service Organizations Shall

Section 11105.3 of the Penal Code gives employers the option to seek records through the California Department of Justice—the employer ‘may’ make a request. AB506 clearly indicates that Youth Service Organizations must seek records through the California Department of Justice: Youth Service Organizations ‘shall’ make a request through the California Department of Justice.

Pre-AB506 Background Check Process

Prior to AB506, most Youth Service Organizations performed background checks on paid staff and volunteers by relying on private background check providers. In so doing, organizations enjoyed the automated process of initiating a background check through an online dashboard that allows an administrator to easily request a depth or level of search. The automated process sends an email to the applicant, who populates the necessary information requested in an online format, e-signs the form and electronically submits the completed and signed form. The e-signed form is received by the background check provider who compiles the available criminal history, provided to the organization electronically. All steps in the process are set up to provide convenience to the organization AND the applicant, while complying with the Fair Credit Reporting Act (FCRA) and California law.

The Section 11105.3 search required by AB506 presents several new challenges.

Challenge One—No Integrated System

Given the advancement of technology, software and online management systems, Youth Service Organizations are working with background check interfaces which create ease of use. Some Youth Service Organizations have integrated systems for human resources, staffing, payroll, registration, online training, reference checks and background checks.

Neither the Live Scan process nor the Section 11105.3 search is automated in such a way that organizations can integrated the newly required background check into existing management software.

Challenge Two—Applicant Involvement

At present, the background check process involves very little effort on the part of the applicant; simply fill out an online form, e-sign and electronically submit. The Section 11105.3 search involves a process that places additional burdens on the applicant. To access records through the California Department of Justice through a Section 11105.3 search, one must use the approved form (see attached form—Appendix B) and secure the applicant’s fingerprints. In California, the required fingerprinting process involves a system called Live Scan.

The organization would first register with the California Department of Justice (DOJ), then keep blank fingerprinting forms with the organization’s designation on each form, such that resulting records could be reported back to the submitting organization. The applicant would be required to take the fingerprinting form to a Live Scan location, where the applicant would be fingerprinted and the form uploaded to Live Scan for the search to be initiated.

Required applicant involvement under AB506 will be a significant departure from existing background check processes.

Challenge Three—Cost

Currently, the cost for a criminal background check depends on the depth of the search and associated fees (i.e., motor vehicle records fee, etc.). The cost for a background check provided by a private background check service may be as low as $10.00 per applicant, depending upon search parameters. The Section 11105.3 search will cost more and may provide less (see below).

The Section 11105.3 search depends upon fingerprinting. The ‘rolling fee’ (inking prints and affixing to the form) can range from $20 to $25 per person. To run the search, the there is a DOJ search fee of $32 per person, with a total cost of $62 to $67 per person. Online statements stemming from DOJ materials indicate that the Section 11105.3 search is ‘free for volunteers’; the ‘free’ aspect relates to the DOJ search fee only, not the rolling fee.

Challenge Four—Fingerprinted Offenses Only

Another challenge relates to the actual information available through the Section 11105.3 search. The Live Scan system is designed to match records through fingerprint data; the fingerprint is a far more reliable identification system. Unfortunately, the system searches only ‘fingerprinted offenses.’ Hence the problem: not all CA criminal records are searchable by fingerprint, and not all crimes in California require fingerprinting—therefore are not revealed by a Section 11105.3 search.

Though the Section 11105.3 search utilizes a more specific mechanism to confirm identity and therefore match records—the applicant’s fingerprints—the subset of records available to be searched is much smaller.

Challenge Five—No Records Outside California

The Section 11105.3 search required by AB506 is limited to records maintained by the California Department of Justice, and will not return criminal records prosecuted outside the State of California. As an example, if convicted abuser Larry Nassar were paroled and chose to move to California, the Section 11105.3 search would not provide any information related to Nassar’s criminal history in Michigan. Paying an additional $15.00 and selecting the FBI check will broaden the search.

Challenge Six—No Sex Offender Registry Search

The purpose of the National Sex Offender Registry is to create a searchable system to determine whether an individual has been convicted of a ‘registration offense’—a criminal offense that qualifies that individual for identification as a Registered Sexual Offender (RSO). The nationwide system is meant to ensure than a convicted sex offender cannot anonymously move to another state or jurisdiction and engage in similar criminal conduct.

The Section 11105.3 search required by AB506 is limited to the records maintained by the California Department of Justice, and will not search the sex offender registry in California (or any other state). Again, Larry Nassar would not be identified as a risk.

Challenge Seven—Reliance on a Live Scan Technician

A background check is an element of a child-serving organization’s screening system for child protection purposes. A fundamental premise in child protection screening is this: the best predictor of future behavior is past behavior. Youth Service Organizations rely on applications, reference checks, interviews and criminal background checks to gather and evaluate an applicant’s past behavior. Effective screening requires training, and proactive insurers must encourage Youth Service Organizations to train screening personnel to recognize high-risk indicators, thereby better protecting children in their care. Identifying high-risk indicators is not intuitive.

The Section 11105.3 search required by AB506 relies on the judgment of a Live Scan records processor. When the fingerprinting form is uploaded and the search process identifies a ‘fingerprint offense’ that matches the fingerprint of the applicant, the Live Scan tech decides whether that criminal offense information will be provided to the organization. It is unclear what training record-reviewing personnel at Live Scan have received.

To learn more about high-risk indicators for child protection screening purposes, view this excerpt of Skillful Screening Training, provided by MinistrySafe.

Challenge Eight—No Civil Records or Social Media

At present, Youth Service Organizations can search a wide variety of searchable data from which an organization may identify an applicant with the wrong sexual motives, including civil records and social media searches. The Section 11105.3 search, however, is limited to records maintained by the California Department of Justice, which will not search civil filings or social media history.

Will AB506 ‘Lower the Bar’?

Given that AB506 gives specific instruction regarding the Section 11105.3 search, most Youth Service Organizations will interpret the new requirement as the California legislature’s expression of current Standard of Care: the reasonable steps necessary to address the risk of child sexual abuse. In actuality, Youth Service Organizations need more past criminal history data than that provided by the California Department of Justice alone. Sadly, the new provision may result in these organizations receiving less information about past convictions, rather than more: offenders who abused a child outside the state of California won’t be revealed through a Section 11105.3 search alone.

The most basic search package provided by any private background check provider includes a national database search, examining an accumulation of records from all states and jurisdictions. Though imperfect, even this basic multistate database search allows an organization to gather applicant information from outside the state of California. Though deeper searches are recommended—especially for staff members and volunteers about whom the organization cannot afford to be wrong—the search must reach outside California.

Unexpected Consequences

By requiring the particular search identified by the new law, it is likely that many Youth Service Organizations will (1) struggle to comply with a new non-automated process; (2) experience budgetary challenges; (3) lose volunteers based on increased inconvenience; and (4) discontinue searches that would have revealed relevant past convictions from other jurisdictions. In short: more difficulty resulting in less information—thereby increasing risk—while discouraging volunteers.

Recommended Action

Notwithstanding AB506, Standard of Care related to criminal background checks for Youth Service Organizations is this: organizations must make a reasonable effort to obtain an applicant’s relevant past criminal history. To do so, Youth Service Organizations must go beyond the Section 11105.3 search. In this context, reasonable effort includes undertaking a nationwide database search, a sex offender registry search, and perhaps more—depending on the position and the populations served (i.e., social media history, federal search, county searches etc.).

In other words, California Youth Service Organizations should not stop existing child protection efforts—so long as they are reasonable efforts—and complete the Section 11105.3 search alone; Youth Service Organizations should do both. Perhaps the California legislature will amend or refine Section 18975(b) to address the challenges above. Until then, Youth Service Organizations in California have yet another task to perform related to applicant past criminal history.

New Policies & Procedures Requirement

Like training and background checks, every Youth Service Organization should have existing policies designed to prevent and correctly respond to child sexual abuse. Policies should include the two-adult rule, requiring the presence of two trained and screened adults, and defined reporting requirements. AB506 now requires these policy provisions.

Required Policy Provisions

Section 18975(c) provides as follows:

(c) A youth service organization shall develop and implement child abuse prevention policies and procedures, including, but not limited to, both of the following:

Application is Straight-Forward

Section 18975(c) is straightforward and clear. Given that Section 18975(a) broadly defines Youth Service Organizations and requires training concerning California reporting requirements and process, compliance is not complicated. In fact, all Youth Service Organizations should already have these policies in place under Standard of Care requirements prior to AB506.

Policies & Training Should Not be Limited to AB506

Under the new law, child abuse prevention policies and procedures should include, but not be limited to the two-adult-rule and a requirement to report abuse. In reality, policies and procedures must go beyond these basics to properly protect youth served by child-serving organizations.

Any Youth Service Organization’s policies and procedures should be rooted in an understanding of the Offender’s grooming process—the process through which an offender prepares a targeted child (and the child’s gatekeepers) for trusted time alone and inappropriate sexual interaction. The grooming process of the offender unfolds differently depending on the age and gender of children served, the type of program, the facility or physical plant and services provided. Because the grooming process varies, specific policy provisions must adjust. For example, if a program serves middle school boys, policies should directly address horseplay, wrestling, pornography, sexual topics, forms of electronic communication, drugs and alcohol. If a program serves teen-aged girls, policies must directly address forms of electronic communication, social media, and sexual topics or requests for photos or video. A program serving very young children must promulgate very direct policies defining appropriate (and inappropriate) forms of touch—especially playful touch such as tickling or wrestling—as well as bathroom and potty-training policies.

Because effective policies are rooted in the Offender’s grooming process, staff members and volunteers must receive training consistent with the type of service provided and the population served. Effective training must include information about the offender’s grooming process and common grooming behaviors. Training gives staff members and volunteers the why behind policy; corresponding policies address behavior, and can be easily expressed, understood and followed.

Effective training goes beyond identifying indicators of abuse and neglect—after abuse has occurred. This limited training is reactive, rather than proactive. Proactive training, coupled with corresponding policy provisions, arms workers with training and direction that support preventative child safety efforts. The bottom line: child-serving organizations must equip staff members to prevent child abuse and neglect, not simply recognize indicators after abuse has occurred.

An Effective Safety System

One of the principle underlying purposes of AB506 is to prevent child sexual abuse in Youth Serving Organizations. The new law involves training, background checks and policies. An effective Safety System, however, requires more than just the presence of two adults who have received a training on abuse indicators and reporting.

Five-Part Safety System

The Abuse Prevention Systems’ Five-Part Safety System includes:

Sexual Abuse Awareness Training
Skillful Screening Processes
Appropriate Criminal Background Check
Tailored Policies & Procedures -Systems for Monitoring and Oversight

MinistrySafe provides each Safety System element, with an online management system allowing child-serving organizations to deploy a sustainable system that tracks and archives Safety System data. Learn more about MinistrySafe or the MinistrySafe 5-Part Safety System.

Child Abuse Prevention Training

MinistrySafe provides professionally produced Child Abuse Prevention Training, including a California supplement designed to comply with AB506. The Training covers the following topics:

Forms of Child Maltreatment (sexual and physical abuse, neglect, bullying, emotional abuse)
Identifying Risk Indicators
Abuser Characteristics
The Offender’s Grooming Process
Common Grooming Behaviors
Peer to Peer Sexual Abuse
Impact of Abuse on a Child
California Reporting Requirements
California Reporting Process

MinistrySafe also offers an online system to send, track and renew Child Abuse Prevention Training. To preview the Training or view the online management system, contact a MinistrySafe staff member at Support@MinistrySafe.com.

Proof of Compliance Available to Insurance Carriers

Section 18975(d) provides:

Section 18975(d) gives insurance carriers the right to seek proof of compliance before providing insurance coverage or renewal. Though an insurance carrier does not need to have legislative permission to request information regarding a Youth Service Organization’s child safety efforts, the new legislation emphasizes this interaction to (1) encourage organizational compliance by suggesting a relationship between child safety efforts and access to ongoing insurance coverage; and (2) encourage insurance companies to use existing contractual leverage to condition coverage on compliance.

Legislative Provision Related to Insurance

Section 18975(d) provides as follows:

Role of Insurance Carriers

Most carriers providing coverages for the youth services marketplace are already requesting child protection information from child-serving organizations that far exceeds that which is required by AB506. In fact, the majority of carriers are conditioning coverage on proof of training, screening, criminal background checks, policies, reporting practices, and procedures and systems for documentation.

The role of the insurance industry is critically important because it can do what the legislature cannot do—or at least chose not to do. AB506 does not come with a compliance mechanism: no oversight agency or entity is identified. Whether an organization has complied with the requirements of AB506 will be revealed in the midst of crisis or when litigation ensues (like Boy Scouts of America). The California legislature could have created or named an oversight agency to enforce the requirements of AB506 through licensure or another proof-of-compliance mechanism. The legislature chose not to do so. Instead, the California legislature highlights insurance providers as the mechanism to show compliance as a business necessity: access to ongoing insurance coverage.

Summary

Through AB506, the California legislature responded to an issue that hasn’t been solved by civil litigation and stiffer criminal penalties, rightly focusing on the need for training, background checks and policies. Assembly Bill 506 creates a new Standard of Care, but the new law generates confusion rather than clarity and, to some degree, lowers the bar rather than raises it.

Many Youth Service Organizations are simply trying to understand ‘what is required’. If California organizations simply comply with AB506, doing nothing further, effective prevention of abuse and neglect of children will not be served.

Notwithstanding the new law, insurance providers continue to seek resources and effective Safety Systems which protect children from abuse. The new law will, perhaps, embolden and encourage carriers to require effective child safety measures as a condition of writing or renewing insurance coverage.

Appendix A & B

Appendix A & B

Kimberlee Norris and Gregory Love are partners in the Fort Worth, Texas law firm of Love & Norris and founders of Abuse Prevention Systems and MinistrySafe, providing child sexual abuse expertise and preventative protocols to organizations worldwide. After representing victims of child sexual abuse for more than three decades, Love and Norris saw recurring, predictable patterns in predatory behavior. Abuse Prevention Systems (APS) and MinistrySafe grew out of their desire to place proactive tools into the hands of child-serving professionals. Together, as Visiting Faculty at Dallas Theological Seminary, Love and Norris teach the only graduate-level course currently in existence dedicated exclusively to sexual abuse prevention.