Kolterman, 031616 NEAGO, AGO 16-6

Docket Nº:AGO 16-6
Case Date:March 16, 2016
Senator Mark Kolterman
AGO 16-6
No. 16-006
Nebraska Attorney General Opinions
State of Nebraska office of the Attorney General
March 16, 2016
         SUBJECT: Whether the Child Welfare Services Protection Act Proposed Under LB 975, as Amended, Violates State or Federal Law          REQUESTED BY: Senator Mark Kolterman Nebraska Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, Dave Bydalek, Chief Deputy Attorney General          INTRODUCTION          LB 975, as amended by AM2308, proposes adoption of the Child Placement Services Preservation Act [the "Act"]. The Act seeks to provide faith-based child placement agencies (FBCPAs) with the ability to perform the child placement services of recruitment, training and supporting of foster family homes, while maintaining their sincerely held religious beliefs, without the threat of adverse action against them. AM2308, § 2(4). Specifically, § 5 of the proposed legislation states:
To the fullest extent permitted by state and federal law, the state shall not take an adverse action against a child-placing agency because the agency declines to provide or facilitate a child placement service that conflicts with the child-placing agency's sincerely held religious beliefs.
         You have presented a series of legal questions about whether such language complies with both constitutional and federal regulatory guidelines. In order to properly analyze the legal questions presented, it is necessary to understand how the Nebraska Department of Health and Human Services (HHS) utilizes child-placing agencies (CPAs). Accordingly, we begin our discussion with background information pertaining to the manner in which HHS contracts with CPAs to provide foster care services for children and families.          BACKGROUND          CPAs are utilized by HHS for the primary purposes of recruiting, retaining, and supporting foster care families. In providing these services, HHS contracts with both secular and faith-based CPAs. As part of that contract, the CPAs understand that the purpose of their service is to provide Agency Supported Foster Care (ASFC) services for children and families of the State of Nebraska.[1]          The Subawards are normally entered into on a yearly basis and can be terminated at any time based upon mutual consent or by either party for any reason upon submission of a 90-day notice. The Subaward provides that HHS has final authority in all decisions pertaining to child welfare services, and further provides that HHS may immediately terminate the agreement if the CPA fails to perform its obligations under the subaward. The Subaward does have an antidiscrimination provision found in paragraph IV(c), but that provision relates only to employment practices by the CPAs under federal and state employment law.          The Subaward specifically notes in IV(v), titled "Independent Entity," that CPAs serve as an independent entity and that neither the CPA nor its employees shall, for any purpose, be deemed employees of HHS. A CPA shall employ and direct such personnel as it requires to perform its obligations under the Subaward, exercising full authority over its personnel in complying with all laws recognized in the employment relationship, both federal, state, county, and municipal.          The Subaward contains a "Service Attachment" which sets forth both definitions and expectations for performance by CPAs. It also includes details about reporting requirements, staff credentials, established payment rates and other details regarding the day to day services that are provided by foster care families associated with a CPA. The Service Attachment specifically defines three important terms regarding the duties performed by CPAs. Those duties are recruitment, retention, and support of foster families or prospective foster families.          With respect to recruitment, the Service Attachment provides, in pertinent part:
Recruitment of agency supported foster families is defined as active and ongoing efforts to solicit families who are invested in meeting the unique needs of children and youth served by DHHS. Recruitment includes undertaking targeted and diligent efforts to locate foster families for specific children upon request by DHHS. Recruitment efforts will include engaging communities across the state through outreach and education activities to increase awareness of the need for foster parents who reflect the ethnic and racial diversity of the children served by DHHS. Recruitment activities may include: organizing special events, speaking engagements, advertising, and networking, etc.
The Service Attachment defines "retention" as
keeping both prospective and current foster, adoptive, and kinship families interested and invested in accepting placement of foster children by treating people well, meeting their needs, and providing encouragement and individualized support beginning with pre-service training continuing through post-placement services.
         In providing recruitment and retention services, the CPAs are to develop, in collaboration with local HHS staff, a Foster Care Recruitment and Retention Plan that is reflective of the types of foster care homes needed, as well as the ethnic and racial diversity of children served in the service area. The plan must identify specific strategies designed to support and improve the retention of foster care families. The plan must also include time lines for strategy, implementation, and a specific measurable goal for increasing the number of newly licensed foster care families provided by the CPA.          Finally, the Service Attachment defines "support" as
being readily accessible and responsive to foster families in meeting their needs and intervening as necessary to stabilize crisis episodes and prevent placement disruptions. Support includes providing face-to-face visits to the foster parent's home a minimum of one time per month, and more frequently as needed based on the needs of the foster parent and or the child as determined by the Child and Adolescent Needs and Strengths (CANS) Tool or the Family Strength and Needs Assessment (FSNA) Tool. More frequent phone calls may be necessary to maintain communication and develop ongoing rapport.
         Although the Subaward and Service Attachment describe the relationship between HHS and CPAs, ultimately, Neb. Rev. Stat. § 43-285 (Supp. 2015) provides that the care of the juvenile and all placement responsibilities ultimately stay with HHS in determining issues such as care, placement, medical services, psychiatric services, training, and expenditures on behalf of each juvenile committed to HHS.          ANALYSIS          Your request letter presents several questions as to whether LB 975, and AM 2308, properly contain language protecting a faith-based CPA from any adverse action if, in recruiting, selecting, training, and support of foster care families, it incorporates its sincerely held religious beliefs. Furthermore, you ask whether providing such protection from adverse action exposes HHS to significant loss of federal funding that is utilized by HHS in making payment to its CPAs and its overall foster care system.          A. Whether child-placing agencies, in providing services related to the placement of children, would be considered state actors.          You have inquired whether CPAs, in providing services for developing foster homes for the placement of children, would be considered state actors. As noted previously, HHS enters into Subawards with numerous CPAs to recruit, train and retain foster home families and services to children in need. The question raised is whether, in contracting with the State to provide these services and homes, CPAs are performing a "public function" to the extent that they should be treated as state actors. This question is important because if the CPAs are state actors, then they must comply with all the "state shall" mandates found in the U.S. Constitution. This would include the equal protection and due process obligations found in the Fourteenth Amendment. Conversely, if CPAs are private, rather than state actors, they are not subject to constitutional mandates.          The Fourteenth Amendment protections are triggered only in the presence of state action and a private entity acting on its own cannot deprive a citizen of Fourteenth Amendment rights. See, e.g., Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 156 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments"). The Supreme Court stated in United States v. Morrison, 529 U.S. 598, 621 (2000), that the Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful." (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). The Constitution protects against government action, not action by a private corporation or citizens. See Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982) (stating "the Fourteenth amendment, which prohibits the state from denying federal constitutional rights and guarantees due process, applies to acts of the states, not to acts of private parties or entities").          The U.S. Supreme Court has developed a "close nexus test" to determine whether actions taken by otherwise private entities are state action. In applying this test, the Supreme Court looks at a broad spectrum of information. The close nexus analysis is inherently fact specific. The Supreme Court has consistently emphasized that the state actor analysis focuses on the precise activity at issue. See Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295 (2001) (noting a private entity can be said to have engaged in state action only "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains"); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1991) (noting that the "state...

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