HB-4188, As Passed Senate, June 10, 2015

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4188

     A bill to amend 1973 PA 116, entitled

"An act to provide for the protection of children through the

licensing and regulation of child care organizations; to provide

for the establishment of standards of care for child care

organizations; to prescribe powers and duties of certain

departments of this state and adoption facilitators; to provide

penalties; and to repeal acts and parts of acts,"

(MCL 722.111 to 722.128) by adding sections 14e and 14f.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 14e. (1) The legislature finds and declares all of the

following:

     (a) When it is necessary for a child in this state to be

placed with an adoptive or foster family, placing the child in a

safe, loving, and supportive home is a paramount goal of this

state.

     (b) As of the effective date of the amendatory act that added

this section, there are 105 licensed adoption and foster care

agencies in this state that are authorized to participate in and

assist families with adoption and foster parent placements of

children.

     (c) Having as many possible qualified adoption and foster

parent agencies in this state is a substantial benefit to the

children of this state who are in need of these placement services

and to all of the citizens of this state because the more qualified

agencies taking part in this process, the greater the likelihood

that permanent child placement can be achieved.

     (d) As of the effective date of the amendatory act that added

this section, the adoption and foster care licensees of this state

represent a broad spectrum of organizations and groups, some of

which are faith based and some of which are not faith based.

     (e) Private child placing agencies, including faith-based

child placing agencies, have the right to free exercise of religion

under both the state and federal constitutions. Under well-settled

principles of constitutional law, this right includes the freedom

to abstain from conduct that conflicts with an agency's sincerely

held religious beliefs.

     (f) Faith-based and non-faith-based child placing agencies

have a long and distinguished history of providing adoption and

foster care services in this state.

     (g) Children and families benefit greatly from the adoption

and foster care services provided by faith-based and non-faith-

based child placing agencies. Ensuring that faith-based child

placing agencies can continue to provide adoption and foster care

services will benefit the children and families who receive

publicly funded services.

     (h) Under well-established department contracting practices, a

private child placing agency does not receive public funding with

respect to a particular child or particular individuals referred by

the department unless that agency affirmatively accepts the

referral.

     (i) Under well-settled principles of constitutional law

distinguishing "private action" from "state action", a private

child placing agency does not engage in state action when the

agency performs private-adoption or direct-placement services.

Similarly, a private child placing agency does not engage in state

action relative to a referral for services under a contract with

the department before the agency accepts the referral.

     (2) To the fullest extent permitted by state and federal law,

a child placing agency shall not be required to provide any

services if those services conflict with, or provide any services

under circumstances that conflict with, the child placing agency's

sincerely held religious beliefs contained in a written policy,

statement of faith, or other document adhered to by the child

placing agency.

     (3) To the fullest extent permitted by state and federal law,

the state or a local unit of government shall not take an adverse

action against a child placing agency on the basis that the child

placing agency has declined or will decline to provide any services

that conflict with, or provide any services under circumstances

that conflict with, the child placing agency's sincerely held

religious beliefs contained in a written policy, statement of

faith, or other document adhered to by the child placing agency.

     (4) If a child placing agency declines to provide any services

under subsection (2), the child placing agency shall provide in

writing information advising the applicant of the department's

website, the Michigan adoption resource exchange or similar

subsequently utilized websites, and a list of adoption or foster

care service providers with contact information and shall do at

least 1 of the following:

     (a) Promptly refer the applicant to another child placing

agency that is willing and able to provide the declined services.

     (b) Promptly refer the applicant to the webpage on the

department's website that identifies other licensed child placement

agencies.

     (5) A child placing agency may assert a defense in an

administrative or judicial proceeding based on this section.

     (6) If a child placing agency declines to provide any services

under subsection (2), the child placing agency's decision does not

limit the ability of another child placing agency to provide those

services.

     (7) For the purpose of this section:

     (a) "Adverse action" includes, but is not limited to, denying

a child placing agency's application for funding, refusing to renew

the child placing agency's funding, canceling the child placing

agency's funding, declining to enter into a contract with the child

placing agency, refusing to renew a contract with the child placing

agency, canceling a contract with the child placing agency,

declining to issue a license to the child placing agency, refusing

to renew the child placing agency's license, canceling the child

placing agency's license, taking an enforcement action against a

child placing agency, discriminating against the child placing

agency in regard to participation in a government program, and

taking any action that materially alters the terms or conditions of

the child placing agency's funding, contract, or license.

     (b) "Services" includes any service that a child placing

agency provides, except foster care case management and adoption

services provided under a contract with the department.

     Sec. 14f. (1) If the department makes a referral to a child

placing agency for foster care case management or adoption services

under a contract with the child placing agency, the child placing

agency may decide not to accept the referral if the services would

conflict with the child placing agency's sincerely held religious

beliefs contained in a written policy, statement of faith, or other

document adhered to by the child placing agency. Before accepting a

referral for services under a contract with the department, the

child placing agency has the sole discretion to decide whether to

engage in activities and perform services related to that referral.

The department shall not control the child placing agency's

decision whether to engage in those activities or perform those

services. For purposes of this subsection, a child placing agency

accepts a referral by doing either of the following:

     (a) Submitting to the department a written agreement to

perform the services related to the particular child or particular

individuals that the department referred to the child placing

agency.

     (b) Engaging in any other activity that results in the

department being obligated to pay the child placing agency for the

services related to the particular child or particular individuals

that the department referred to the child placing agency.

     (2) The state or a local unit of government shall not take an

adverse action against a child placing agency on the basis that the

child placing agency has decided to accept or not accept a referral

under subsection (1).

     (3) If a child placing agency decides not to accept a referral

under subsection (1), that occurrence shall not be a factor in

determining whether a placement in connection with the referral is

in the best interest of the child.

     (4) A child placing agency may assert a defense in an

administrative or judicial proceeding based on this section.

     (5) For the purpose of this section, "adverse action"

includes, but is not limited to, denying a child placing agency's

application for funding, refusing to renew the child placing

agency's funding, canceling the child placing agency's funding,

declining to enter into a contract with the child placing agency,

refusing to renew a contract with the child placing agency,

canceling a contract with the child placing agency, declining to

issue a license to the child placing agency, refusing to renew the

child placing agency's license, canceling the child placing

agency's license, taking an enforcement action against a child

placing agency, discriminating against the child placing agency in

regard to participation in a government program, and taking any

action that materially alters the terms or conditions of the child

placing agency's funding, contract, or license.

     Enacting section 1. It is the intent of the legislature to

protect child placing agencies' free exercise of religion protected

by the United States constitution and the state constitution of

1963. This amendatory act is not intended to limit or deny any

person's right to adopt a child or participate in foster care.

     Enacting section 2. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 3. This amendatory act does not take effect

unless all of the following bills of the 98th Legislature are

enacted into law:

     (a) House Bill No. 4189.

     (b) House Bill No. 4190.