S.B. 17

This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Tue, Feb 5, 2008 at 5:39 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Fri, Feb 8, 2008 at 1:35 PM by rday. --> This document includes Senate 2nd Reading Floor Amendments (CORRECTED) incorporated into the bill on Mon, Feb 11, 2008 at 4:28 PM by rday. -->

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CHILD ABUSE AND NEGLECT REGISTRY -
2 MANAGEMENT AND LICENSING
3 INFORMATION SYSTEMS AMENDMENTS
4 2008 GENERAL SESSION
5 STATE OF UTAH
6 Chief Sponsor: Gene Davis
7 House Sponsor: David Litvack
8
9 LONG TITLE
10 Committee Note:
11 The Child Welfare Legislative Oversight Panel recommended this bill.
12 General Description:
13 This bill amends provisions of the Utah Human Services Code and the S. [ Juvenile Court
14 Act of 1996 ] Government Records Access and Management Act .S relating to the Management
14a Information System maintained by the
15 Department of Human Services.
16 Highlighted Provisions:
17 This bill:
18 S. [ . provides that reports that are found to be without merit and false may not be
19 included in the Management Information System;
20 . provides that contract providers for the Division of Child and Family Services and
21 designated court clerks may only have access to reports on the Management
22 Information System that are substantiated or supported;
23 . places limitations on the use of certain reports on the Management Information
24 System as evidence in proceedings for child custody, a protection order, or divorce;
25 . requires that, when the division or a court makes a finding that a report is without
26 merit, the division or the court must also determine whether the report is false;
27 . describes how long a report remains on the Management Information System; ]
27a . modifies provisions related to access to records in the Management Information System;

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. establishes a procedure for providing an alleged perpetrator of child abuse, neglect,
27c or dependency with notice and an opportunity to challenge:
27d . a finding of unsupported or without merit by the division; and
27e . the listing of the finding in the Management Information System; .S

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. provides that proceedings for judicial review of a final agency action relating to a
29 report on the Management Information System are closed to the public;
30 . grants rulemaking authority to the Judicial Council to ensure the confidentiality of
31 the proceedings described above; and
32 . makes technical changes.
33 Monies Appropriated in this Bill:
34 None
35 Other Special Clauses:
36 None
37 Utah Code Sections Affected:
38 AMENDS:
39 S. [ 26-21-9.5, as last amended by Chapter 43, Laws of Utah 2007
40 62A-2-121, as last amended by Chapter 152, Laws of Utah 2007 ]
40a 62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77 and 281
41 [ 62A-4a-1003, as last amended by Laws of Utah 2007, Chapter 152
42 62A-4a-1008, as renumbered and amended by Laws of Utah 2006, Chapter 77 ] .S
43 62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
43a S. 63-2-202, as last amended by Laws of Utah 2005, Chapter 201
43b 63-2-304, as last amended by Laws of Utah 2007, Chapters 66 and 352
44 [ 78-3a-104, as last amended by Laws of Utah 2006, Chapters 55, 132, and 281 ]
44a 78-3a-314, as last amended by Laws of Utah 2007, Chapter 152
45 [ 78-3a-320, as last amended by Laws of Utah 2006, Chapter 77
46 ENACTS:
47 62A-4a-1003.5, Utah Code Annotated 1953 ] .S
48
49 Be it enacted by the Legislature of the state of Utah:
50 S. [ Section 1. Section 26-21-9.5 is amended to read:
51 26-21-9.5. Criminal background check and Licensing Information System check.
52 (1) For purposes of this section:
53 (a) "Covered health care facility" means:
54 (i) home health care agencies;
55 (ii) hospices;
56 (iii) nursing care facilities;
57 (iv) assisted-living facilities;
58 (v) small health care facilities; and ] .S

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S. [ (vi) end stage renal disease facilities.
60 (b) "Covered person" includes:
61 (i) the following people who provide direct patient care:
62 (A) employees;
63 (B) volunteers; and
64 (C) people under contract with the facility; and
65 (ii) for residential settings, any individual residing in the home where the assisted
66 living or small health care program is to be licensed who:
67 (A) is 18 years of age or older; or
68 (B) is a child between the age of 12 and 17 years of age; however, the identifying
69 information required for a child between the age of 12 and 17 does not include fingerprints.
70 (2) In addition to the licensing requirements of Sections 26-21-8 and 26-21-9 , a
71 covered health care facility at the time of initial application for a license and license renewal
72 shall:
73 (a) submit the name and other identifying information of each covered person at the
74 covered facility who:
75 (i) provides direct care to a patient; and
76 (ii) has been the subject of a criminal background check within the preceding
77 three-year period by a public or private entity recognized by the department; and
78 (b) submit the name and other identifying information, which may include fingerprints,
79 of each covered person at the covered facility who has not been the subject of a criminal
80 background check in accordance with Subsection (1)(a)(ii).
81 (3) (a) The department shall forward the information received under Subsection (2)(b)
82 to the Criminal Investigations and Technical Services Division of the Department of Public
83 Safety for processing to determine whether the covered individual has been convicted of any
84 crime.
85 (b) Except for individuals described in Subsection (1)(b)(ii)(B), if an individual has not
86 had residency in Utah for the last five years, the individual shall submit fingerprints for an FBI
87 national criminal history record check. The fingerprints shall be submitted to the FBI through
88 the Criminal Investigations and Technical Services Division. The individual or licensee is
89 responsible for the cost of the fingerprinting and national criminal history check. ] .S

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S. [ (4) The department may determine whether:
91 (a) an individual whose name and other identifying information has been submitted
92 pursuant to Subsection (2) and who provides direct care to children is listed in the Licensing
93 Information System described in Section 62A-4a-1006 or has a substantiated finding by a court
94 of a severe type of child abuse or neglect under Section 78-3a-320 , if identification as a
95 possible perpetrator of child abuse or neglect is relevant to the employment activities of that
96 individual;
97 (b) an individual whose name and other identifying information has been submitted
98 pursuant to Subsection (2) and who provides direct care to disabled or elder adults, or who is
99 residing in a residential home that is a facility licensed to provide direct care to disabled or
100 elder adults has a substantiated finding of abuse, neglect, or exploitation of a disabled or elder
101 adult by accessing in accordance with Subsection (5) the database created in Section
102 62A-3-311.1 if identification as a possible perpetrator of disabled or elder adult abuse, neglect,
103 or exploitation is relevant to the employment activities or residence of that person; or
104 (c) an individual whose name or other identifying information has been submitted
105 pursuant to Subsection (2) has been adjudicated in a juvenile court of committing an act which
106 if committed by an adult would be a felony or a misdemeanor if:
107 (i) the individual is under the age of 28 years; or
108 (ii) the individual is over the age of 28 and has been convicted, has pleaded no contest,
109 or is currently subject to a plea in abeyance or diversion agreement for any felony or
110 misdemeanor.
111 (5) (a) The department shall:
112 (i) designate two persons within the department to access:
113 (A) the Licensing Information System described in Section 62A-4a-1006 ;
114 (B) court records under Subsection 78-3a-320 [(6)](7);
115 (C) the database described in Subsection (4)(b); and
116 (D) juvenile court records as permitted by Subsection (4)(c); and
117 (ii) adopt measures to:
118 (A) protect the security of the Licensing Information System, the court records, and the
119 database; and
120 (B) strictly limit access to the Licensing Information System, the court records, and the ] .S

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S. [ database to those designated under Subsection (5)(a)(i).
122 (b) Those designated under Subsection (5)(a)(i) shall receive training from the
123 Department of Human Services with respect to:
124 (i) accessing the Licensing Information System, the court records, and the database;
125 (ii) maintaining strict security; and
126 (iii) the criminal provisions in Section 62A-4a-412 for the improper release of
127 information.
128 (c) Those designated under Subsection (5)(a)(i):
129 (i) are the only ones in the department with the authority to access the Licensing
130 Information System, the court records, and database; and
131 (ii) may only access the Licensing Information System, the court records, and the
132 database for the purpose of licensing and in accordance with the provisions of Subsection (4).
133 (6) Within ten days of initially hiring a covered individual, a covered health care
134 facility shall submit the covered individual's information to the department in accordance with
135 Subsection (2).
136 (7) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
137 Rulemaking Act, consistent with this chapter, defining the circumstances under which a person
138 who has been convicted of a criminal offense, or a person described in Subsection (4), may
139 provide direct care to a patient in a covered health care facility, taking into account the nature
140 of the criminal conviction or substantiated finding and its relation to patient care.
141 (8) The department may, in accordance with Section 26-1-6 , assess reasonable fees for
142 a criminal background check processed pursuant to this section.
143 (9) The department may inform the covered health care facility of information
144 discovered under Subsection (4) with respect to a covered individual.
145 (10) A covered health care facility is not civilly liable for submitting information to the
146 department as required by this section.
147 Section 2. Section 62A-2-121 is amended to read:
148 62A-2-121. Access to abuse and neglect information.
149 (1) For purposes of this section:
150 (a) "Direct service worker" is as defined in Section 62A-5-101 .
151 (b) "Personal care attendant" is as defined in Section 62A-3-101 . ] .S

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S. [ (2) With respect to a licensee, a certified local inspector applicant, a direct service
153 worker, or a personal care attendant, the department may access only the Licensing Information
154 System of the Division of Child and Family Services created by Section 62A-4a-1006 and
155 juvenile court records under Subsection 78-3a-320 [(6)](7), for the purpose of:
156 (a) (i) determining whether a person associated with a licensee, with direct access to
157 children:
158 (A) is listed in the Licensing Information System; or
159 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
160 neglect under Subsections 78-3a-320 (1) and (2); and
161 (ii) informing a licensee that a person associated with the licensee:
162 (A) is listed in the Licensing Information System; or
163 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
164 neglect under Subsections 78-3a-320 (1) and (2);
165 (b) (i) determining whether a certified local inspector applicant:
166 (A) is listed in the Licensing Information System; or
167 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
168 neglect under Subsections 78-3a-320 (1) and (2); and
169 (ii) informing a local government that a certified local inspector applicant:
170 (A) is listed in the Licensing Information System; or
171 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
172 neglect under Subsections 78-3a-320 (1) and (2);
173 (c) (i) determining whether a direct service worker:
174 (A) is listed in the Licensing Information System; or
175 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
176 neglect under Subsections 78-3a-320 (1) and (2); and
177 (ii) informing a direct service worker or the direct service worker's employer that the
178 direct service worker:
179 (A) is listed in the Licensing Information System; or
180 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
181 neglect under Subsections 78-3a-320 (1) and (2); or
182 (d) (i) determining whether a personal care attendant: ] .S

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S. [ (A) is listed in the Licensing Information System; or
184 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
185 neglect under Subsections 78-3a-320 (1) and (2); and
186 (ii) informing a person described in Subsections 62A-3-101 (9)(a)(i) through (iv) that a
187 personal care attendant:
188 (A) is listed in the Licensing Information System; or
189 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
190 neglect under Subsections 78-3a-320 (1) and (2).
191 (3) Notwithstanding Subsection (2), the department may access the Division of Child
192 and Family Service's Management Information System under Section 62A-4a-1003 :
193 (a) for the purpose of licensing and monitoring foster parents; and
194 (b) for the purposes described in Subsection 62A-4a-1003 (1)(d).
195 (4) After receiving identifying information for a person under Subsection
196 62A-2-120 (1), the department shall process the information for the purposes described in
197 Subsection (2).
198 (5) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
199 Rulemaking Act, consistent with this chapter, defining the circumstances under which a person
200 may have direct access or provide services to children when:
201 (a) the person is listed in the Licensing Information System of the Division of Child
202 and Family Services created by Section 62A-4a-1006 ; or
203 (b) juvenile court records show that a court made a substantiated finding under Section
204 78-3a-320 , that the person committed a severe type of child abuse or neglect.
205 Section 3. Section 62A-4a-1003 is amended to read:
206 62A-4a-1003. Management Information System -- Requirements -- Contents --
207 Purpose -- Access.
208 (1) (a) The division shall develop and implement a Management Information System
209 that meets the requirements of this section and the requirements of federal law and regulation.
210 (b) The information and records contained in the Management Information System:
211 (i) are protected records under Title 63, Chapter 2, Government Records Access and
212 Management Act; and
213 (ii) except as provided in Subsections (1)(c) and (d), are available only to a person with ] .S

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S. [ statutory authorization under Title 63, Chapter 2, Government Records Access and
215 Management Act, to review the information and records described in this Subsection (1)(b).
216 (c) Notwithstanding Subsection (1)(b)(ii), the information and records described in
217 Subsection (1)(b) are available to a person:
218 (i) as provided under Subsection [(6)] (7) or Section 62A-4a-1006 ; or
219 (ii) who has specific statutory authorization to access the information or records for the
220 purpose of assisting the state with state and federal requirements to maintain information solely
221 for the purpose of protecting minors and providing services to families in need.
222 (d) Notwithstanding Subsection (1)(b)(ii), the information and records described in
223 Subsection (1)(b) may, to the extent required by Title IV-B or IV-E of the Social Security Act,
224 be provided by the division:
225 (i) to comply with child abuse and neglect registry checks requested by other states;
226 and
227 (ii) to the United States Department of Health and Human Services for purposes of
228 maintaining an electronic national registry of substantiated cases of child abuse and neglect.
229 (2) With regard to all child welfare cases, the Management Information System shall
230 provide each caseworker and the department's office of licensing, exclusively for the purposes
231 of foster parent licensure and monitoring, with a complete history of each child in that worker's
232 caseload, including:
233 (a) a record of all past action taken by the division with regard to that child and the
234 child's siblings;
235 (b) the complete case history and all reports and information in the control or keeping
236 of the division regarding that child and the child's siblings;
237 (c) the number of times the child has been in the custody of the division;
238 (d) the cumulative period of time the child has been in the custody of the division;
239 (e) except as provided in Subsection (3), a record of all reports of abuse or neglect
240 received by the division with regard to that child's parent, parents, or guardian including:
241 (i) for each report, documentation of the:
242 (A) latest status; or
243 (B) final outcome or determination; and
244 (ii) information that indicates whether each report was found to be: ] .S

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S. [ (A) supported;
246 (B) unsupported;
247 (C) substantiated by a juvenile court;
248 (D) unsubstantiated by a juvenile court; or
249 (E) without merit;
250 (f) the number of times the child's parent or parents failed any child and family plan;
251 and
252 (g) the number of different caseworkers who have been assigned to that child in the
253 past.
254 (3) The Management Information System may not include a report, or any reference to
255 a report, that is:
256 (a) found by the division to be:
257 (i) without merit; and
258 (ii) false, under Section 62A-4a-1003.5 ; or
259 (b) found by a court to be:
260 (i) without merit; and
261 (ii) false, under Subsection 78-3a-320 (4).
262 [(3)] (4) The [division's] Management Information System shall:
263 (a) contain all key elements of each family's current child and family plan, including:
264 (i) the dates and number of times the plan has been administratively or judicially
265 reviewed;
266 (ii) the number of times the parent or parents have failed that child and family plan;
267 and
268 (iii) the exact length of time the child and family plan has been in effect; and
269 (b) alert caseworkers regarding deadlines for completion of and compliance with
270 policy, including child and family plans.
271 [(4)] (5) With regard to all child protective services cases, the Management
272 Information System shall:
273 (a) monitor the compliance of each case with:
274 (i) division rule and policy;
275 (ii) state law; and ] .S

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S. [ (iii) federal law and regulation; and
277 (b) include the age and date of birth of the alleged perpetrator at the time the abuse or
278 neglect is alleged to have occurred, in order to ensure accuracy regarding the identification of
279 the alleged perpetrator.
280 [(5)] (6) Except as provided in Subsection [(6)] (7) regarding contract providers and
281 Section 62A-4a-1006 regarding limited access to the Licensing Information System, all
282 information contained in the division's Management Information System is available to the
283 department, upon the approval of the executive director, on a need-to-know basis.
284 [(6)] (7) (a) Subject to this Subsection [(6)] (7), the division may allow its contract
285 providers, court clerks designated by the Administrative Office of the Courts, and the Office of
286 the Guardian Ad Litem to have limited access to the Management Information System.
287 (b) A division contract provider has access only to information about a person who is
288 currently receiving services from that specific contract provider.
289 (c) (i) Designated court clerks may only have access to information necessary to
290 comply with Subsection 78-3h-102 (2).
291 (ii) The Office of the Guardian Ad Litem may access only the information that:
292 (A) relates to children and families where the Office of the Guardian Ad Litem is
293 appointed by a court to represent the interests of the children; and
294 (B) except as provided in Subsection [(6)] (7)(d), is entered into the Management
295 Information System on or after July 1, 2004.
296 (d) Notwithstanding Subsection [(6)] (7)(c)(ii)(B), the Office of the Guardian Ad Litem
297 shall have access to all child abuse and neglect referrals about children and families where the
298 office has been appointed by a court to represent the interests of the children, regardless of the
299 date that the information is entered into the Management Information System.
300 (e) Each contract provider and designated representative of the Office of the Guardian
301 Ad Litem who requests access to information contained in the Management Information
302 System shall:
303 (i) take all necessary precautions to safeguard the security of the information contained
304 in the Management Information System;
305 (ii) train its employees regarding:
306 (A) requirements for protecting the information contained in the Management ] .S

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S. [ Information System as required by this chapter and under Title 63, Chapter 2, Government
308 Records Access and Management Act; and
309 (B) the criminal penalties under Sections 62A-4a-412 and 63-2-801 for improper
310 release of information; and
311 (iii) monitor its employees to ensure that they protect the information contained in the
312 Management Information System as required by law.
313 (f) The division shall take reasonable precautions to ensure that its contract providers
314 comply with the requirements of this Subsection [(6)] (7).
315 (g) The contract providers and designated court clerks described in this Subsection (7)
316 may not have access to reports, or references to reports, that are found to be unsubstantiated,
317 unsupported, or without merit.
318 [(7)] (8) The division shall take all necessary precautions, including password
319 protection and other appropriate and available technological techniques, to prevent
320 unauthorized access to or release of information contained in the Management Information
321 System.
322 (9) Reports that are unsubstantiated, unsupported, or without merit may not be
323 admitted as evidence, or relied upon, in a trial or proceeding for child custody, a protection
324 order, or divorce, for the purpose of establishing the truth of the incident asserted in the report.
325 Section 4. Section 62A-4a-1003.5 is enacted to read:
326 62A-4a-1003.5. Report without merit -- Additional finding.
327 If the division finds that a report is without merit, the division shall make an additional
328 finding regarding whether the report is false.
329 Section 5. Section 62A-4a-1008 is amended to read:
330 62A-4a-1008. Timeframes for deletion of specified information or reports. ]
331 [(1) Unless the executive director determines that there is good cause for keeping a
332 report of abuse or neglect in the Management Information System, based on standards
333 established by rule, the division shall delete any reference to:]
334 [(a) a report that is without merit, if no subsequent report involving the same alleged
335 perpetrator has occurred within one year; or]
336 [(b) a report that is determined by a court of competent jurisdiction to be
337 unsubstantiated or without merit, if no subsequent report involving the same alleged .S

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perpetrator has occurred within five years.]
339 S. [ (1) Except as provided in Subsection (3) or (4), the division shall delete from the
340 Management Information System a report that is unsubstantiated or unsupported:
341 (a) after the report has been on the Management Information system for three years,
342 unless the alleged perpetrator is listed on the Management Information System as the
343 perpetrator in a previous substantiated or supported report; or
344 (b) after the report has been on the Management Information System for five years, if
345 the alleged perpetrator is listed on the Management Information System as the perpetrator in a
346 previous substantiated or supported report.
347 (2) Except as provided in Subsection (3), (4), or 62A-4a-1003 (3), the division shall
348 delete from the Management Information System a report that is without merit after the report