First Substitute S.B. 17

This document includes House Committee Amendments incorporated into the bill on Fri, Feb 15, 2008 at 2:49 PM by jeyring. -->

Representative David Litvack proposes the following substitute bill:

1 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: Wayne A. Harper
8
9 LONG TITLE
10 General Description:
11 This bill amends provisions of the Utah Human Services Code and the Government
12 Records Access and Management Act relating to the Management Information System
13 maintained by the Department of Human Services.
14 Highlighted Provisions:
15 This bill:
16 . modifies provisions related to access to records in the Management Information
17 System;
18 . establishes a procedure for providing an alleged perpetrator of child abuse, neglect,
19 or dependancy with notice and an opportunity to challenge:
20 . a finding of unsupported or without merit by the division; and
21 . the listing of the finding in the Management Information System;
22 . provides that proceedings for judicial review of a final agency action relating to a
23 report on the Management Information System are closed to the public;
24 . grants rulemaking authority to the Judicial Council to ensure the confidentiality of
25 the proceedings described above; and

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- 2 - 26 . makes technical changes.
27 Monies Appropriated in this Bill:
28 None
29 Other Special Clauses:
30 None
31 Utah Code Sections Affected:
32 AMENDS:
33 62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77 and 281
34 62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
35 63-2-202, as last amended by Laws of Utah 2005, Chapter 201
36 63-2-304, as last amended by Laws of Utah 2008, Chapter 3
37 78A-6-317, as renumbered and amended by Laws of Utah 2008, Chapter 3
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 62A-4a-412 is amended to read:
41 62A-4a-412. Reports and information confidential.
42 (1) Except as otherwise provided in this chapter, reports made pursuant to this part, as
43 well as any other information in the possession of the division obtained as the result of a report
44 are private, protected, or controlled records under Title 63, Chapter 2, Government Records
45 Access and Management Act, and may only be made available to:
46 (a) a police or law enforcement agency investigating a report of known or suspected
47 child abuse or neglect;
48 (b) a physician who reasonably believes that a child may be the subject of abuse or
49 neglect;
50 (c) an agency that has responsibility or authority to care for, treat, or supervise a minor
51 who is the subject of a report;
52 (d) a contract provider that has a written contract with the division to render services to
53 a minor who is the subject of a report;
54 (e) [any] except as provided in Subsection 63-2-202 (10), a subject of the report, the
55 natural parents of the child, and the guardian ad litem;
56 (f) a court, upon a finding that access to the records may be necessary for the

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- 3 - 57 determination of an issue before the court, provided that in a divorce, custody, or related
58 proceeding between private parties, the record alone is:
59 (i) limited to objective or undisputed facts that were verified at the time of the
60 investigation; and
61 (ii) devoid of conclusions drawn by the division or any of the division's workers on the
62 ultimate issue of whether or not a person's acts or omissions constituted any level of abuse or
63 neglect of another person;
64 (g) an office of the public prosecutor or its deputies in performing an official duty;
65 (h) a person authorized by a Children's Justice Center, for the purposes described in
66 Section 67-5b-102 ;
67 (i) a person engaged in bona fide research, when approved by the director of the
68 division, if the information does not include names and addresses;
69 (j) the State Office of Education, acting on behalf of itself or on behalf of a school
70 district, for the purpose of evaluating whether an individual should be permitted to obtain or
71 retain a license as an educator or serve as an employee or volunteer in a school, limited to
72 information with substantiated findings involving an alleged sexual offense, an alleged felony
73 or class A misdemeanor drug offense, or any alleged offense against the person under Title 76,
74 Chapter 5, Offenses Against the Person, and with the understanding that the office must
75 provide the subject of a report received under Subsection (1)(k) with an opportunity to respond
76 to the report before making a decision concerning licensure or employment;
77 (k) any person identified in the report as a perpetrator or possible perpetrator of child
78 abuse or neglect, after being advised of the screening prohibition in Subsection (2);
79 (l) except as provided in Subsection 63-2-202 (10), a person filing a petition for a child
80 protective order on behalf of a child who is the subject of the report; and
81 (m) a licensed child-placing agency or person who is performing a preplacement
82 adoptive evaluation in accordance with the requirements of Section 78-30-3.5 .
83 (2) (a) A person, unless listed in Subsection (1), may not request another person to
84 obtain or release a report or any other information in the possession of the division obtained as
85 a result of the report that is available under Subsection (1)(k) to screen for potential
86 perpetrators of child abuse or neglect.
87 (b) A person who requests information knowing that it is a violation of Subsection

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- 4 - 88 (2)(a) to do so is subject to the criminal penalty in Subsection (4).
89 (3) (a) Except as provided in Section 62A-4a-1007 and Subsection (3)(b), the division
90 and law enforcement officials shall ensure the anonymity of the person or persons making the
91 initial report and any others involved in its subsequent investigation.
92 (b) Notwithstanding any other provision of law, excluding Section 78-3a-314 , but
93 including this chapter and Title 63, Chapter 2, Government Records Access and Management
94 Act, when the division makes a report or other information in its possession available under
95 Subsection (1)(e) to a subject of the report or a parent of a child, the division shall remove from
96 the report or other information only the names, addresses, and telephone numbers of
97 individuals or specific information that could:
98 (i) identify the referent;
99 (ii) impede a criminal investigation; or
100 (iii) endanger a person's safety.
101 (4) Any person who wilfully permits, or aides and abets the release of data or
102 information obtained as a result of this part, in the possession of the division or contained on
103 any part of the Management Information System, in violation of this part or Sections
104 62A-4a-1003 through 62A-4a-1007 , is guilty of a class C misdemeanor.
105 (5) The physician-patient privilege is not a ground for excluding evidence regarding a
106 child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
107 good faith pursuant to this part.
108 (6) A child-placing agency or person who receives a report in connection with a
109 preplacement adoptive evaluation pursuant to Section 78-30-3.5 :
110 (a) may provide this report to the person who is the subject of the report; and
111 (b) may provide this report to a person who is performing a preplacement adoptive
112 evaluation in accordance with the requirement of Section 78-30-3.5 , or to a licensed
113 child-placing agency or to an attorney seeking to facilitate an adoption.
114 Section 2. Section 62A-4a-1009 is amended to read:
115 62A-4a-1009. Notice and opportunity to challenge finding of supported,
116 unsupported, or without merit in Management Information System -- Right of judicial
117 review.
118 (1) (a) Except as provided in Subsection (2), the division shall send a notice of agency

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- 5 - 119 action to a person with respect to whom the division makes a [supported] finding of supported,
120 unsupported, or without merit. In addition, if the alleged perpetrator is under the age of 18, the
121 division shall:
122 (i) make reasonable efforts to identify the alleged perpetrator's parent or guardian; and
123 (ii) send a notice to each parent or guardian identified under Subsection (1)(a)(i) that
124 lives at a different address, unless there is good cause, as defined by rule, for not sending a
125 notice to a parent or guardian.
126 (b) Nothing in this section may be construed as affecting:
127 (i) the manner in which the division conducts an investigation; or
128 (ii) the use or effect, in any other setting, of a supported finding by the division at the
129 completion of an investigation for any purpose other than for notification under Subsection (1)
130 (a).
131 (2) Subsection (1) does not apply to a person who has been served with notice under
132 Subsection 62A-4a-1005 (1)(a).
133 (3) The notice described in Subsection (1), relating to a supported finding, shall state:
134 (a) that the division has conducted an investigation regarding alleged child abuse,
135 neglect, or dependency;
136 (b) that the division has made a supported finding of abuse, neglect, or dependency;
137 (c) that facts gathered by the division support the supported finding;
138 (d) that the person has the right to request:
139 (i) a copy of the report; and
140 (ii) an opportunity to challenge the supported finding by the division; and
141 (e) that failure to request an opportunity to challenge the supported finding within 30
142 days of receiving the notice will result in an unappealable supported finding of child abuse,
143 neglect, or dependency unless the person can show good cause for why compliance within the
144 30-day requirement was virtually impossible or unreasonably burdensome.
145 (4) (a) A person may make a request to challenge a supported finding within 30 days of
146 a notice being received under this section.
147 (b) Upon receipt of a request under Subsection (4)(a), the Office of Administrative
148 Hearings shall hold an adjudicative proceeding pursuant to Title 63, Chapter 46b,
149 Administrative Procedures Act.

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House Committee Amendments 2-15-2008 je/trv 150

(5) (a) In an adjudicative proceeding held pursuant to this section, based on a challenge
151 to a supported finding, the division shall have the burden of proving, by a preponderance of the
152 evidence, that child abuse, neglect, or dependency occurred and that the alleged perpetrator was
153 substantially responsible for the abuse or neglect that occurred.
154 (b) Any party shall have the right of judicial review of final agency action under this
155 section, regardless of whether the finding is supported, unsupported, or without merit, in
156 accordance with Title 63, Chapter 46b, Administrative Procedures Act.
157 (c) Proceedings for judicial review of a final agency action under this section shall be
158 closed to the public.
159 (d) The Judicial Council shall make rules H. [ , in accordance with Title 63, Chapter 46a,
160 Utah Administrative Rulemaking Act, ] .H that ensure the confidentiality of the proceedings
161 described in Subsection (5)(c) and the records related to the proceedings.
162 (6) (a) If, after receiving a report of alleged child abuse, neglect, or dependency, the
163 division makes a finding that the report is unsupported or without merit, the division shall
164 serve notice of the finding, described in Subsection (6)(b), on the alleged perpetrator.
165 (b) The notice described in Subsection (6)(a):
166 (i) shall state that:
167 (A) the division has conducted an investigation regarding a report of alleged child
168 abuse, neglect, or dependency;
169 (B) the division has made a finding that the report is unsupported or without merit;
170 (C) the alleged perpetrator's name, information, and the report have been entered into
171 the Management Information System, together with an indication that the report was found to
172 be unsupported or without merit;
173 (D) the information described in Subsection (6)(b)(i)(C):
174 (I) will not be included in the Licensing Information System; and
175 (II) may not be accessed and used to disqualify the alleged perpetrator from adopting a
176 child or being licensed by:
177 (Aa) the department;
178 (Bb) a human services licensee;
179 (Cc) a child care provider or program; or
180 (Dd) a covered health care facility;

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- 7 - 181 (E) the alleged perpetrator has the rights described in Subsection (7); and
182 (F) failure to take the action described in Subsection (7)(a) within two years after
183 service of the notice will result in the action described in Subsection (7)(b);
184 (ii) shall include a general statement of the nature of the findings; and
185 (iii) may not include:
186 (A) the name of a victim or witness; or
187 (B) any privacy information related to the victim or a witness.
188 (7) (a) Upon receipt of the notice described in Subsection (6), the alleged perpetrator
189 shall have the right to:
190 (i) except as provided in Subsection (7)(c), submit a request for agency review to the
191 division, requesting one or both of the following:
192 (A) if the finding described in Subsection (6)(a) is a finding of unsupported, that the
193 division reduce the finding to a finding of without merit; or
194 (B) if the finding described in Subsection (6)(a) is a finding of unsupported or without
195 merit, that the division remove the alleged perpetrator's name and information, the finding, and
196 the report to which it relates, from the Management Information System; or
197 (ii) sign a written consent to:
198 (A) the finding made under Subsection (6)(a); and
199 (B) entry into the Management Information System of the alleged perpetrator's name
200 and information, the finding, and the report.
201 (b) The alleged perpetrator's name and information, the finding, and the report shall
202 remain in the Management Information System:
203 (i) if the alleged perpetrator fails to submit a request for agency review under
204 Subsection (7)(a)(i) within two years after service of the notice described in Subsection (6);
205 (ii) during the time that the division awaits a request for agency review from the
206 alleged perpetrator pursuant to Subsection (7)(a); and
207 (iii) unless:
208 (A) in response to a request for agency review, the division determines, under
209 Subsection (7)(a)(i)(B), to remove the alleged perpetrator's name and information, including
210 the finding and the report, from the Management Information System;
211 (B) the division refuses to take the action described in Subsection (7)(b)(iii)(A) and the

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213 (C) a court orders that the perpetrator's name and information, the finding, and the
214 report be removed from the Management Information System.
215 (c) The alleged perpetrator has no right to submit a request for agency review to the
216 division under Subsection (7)(a)(i) if a court previously held a hearing on the same alleged
217 incident of abuse, neglect, or dependency, pursuant to the filing of a petition under Section
218 78A-6-304 , by some other party.
219 (d) Consent under Subsection (7)(a)(ii) by a child shall be given by the child's parent or
220 guardian.
221 (e) In considering a request described in Subsection (7)(a)(i)(A), the agency shall have
222 the burden of proving, by a preponderance of the evidence, that the finding should be
223 unsupported, rather than without merit.
224 (f) In considering a request described in Subsection (7)(a)(i)(B), the person who
225 submitted the request for review shall have the burden of proving, by a preponderance of the
226 evidence, that the person's interest in having the report and finding removed from the
227 Management Information System outweighs the interest of the division or an alleged victim in
228 maintaining the report and finding in the Management Information System.
229 (g) If the division refuses to take the action requested under Subsection (7)(a)(i), the
230 person who submitted the request for agency review may challenge the decision pursuant to
231 Title 63, Chapter 46b, Administrative Procedures Act.
232 [(6)] (8) Except as otherwise provided in this chapter, an alleged perpetrator who, after
233 receiving notice, fails to challenge a [supported] finding of supported, unsupported, or without
234 merit, in accordance with this section:
235 (a) may not further challenge the finding; and
236 (b) shall have no right to:
237 (i) agency review of the finding;
238 (ii) an adjudicative hearing on the finding; or
239 (iii) judicial review of the finding.
240 [(7)] (9) (a) Except as provided in Subsection [(7)] (9)(b), an alleged perpetrator may
241 not make a request under Subsection (4) or (7)(a)(i) to challenge a [supported] finding of
242 supported, unsupported, or without merit, if a court of competent jurisdiction entered a finding,

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244 (i) the alleged perpetrator is substantially responsible for the abuse, neglect, or
245 dependency which was also the subject of the supported finding[.]; or
246 (ii) the report was unsubstantiated or without merit.
247 (b) Subsection [(7)] (9)(a) does not apply to pleas in abeyance or diversion agreements.
248 (c) An adjudicative proceeding under Subsection (5) or (7) may be stayed during the
249 time a judicial action on the same matter is pending.
250 [(8)] (10) Pursuant to Section 78-3a-320 , an adjudicative proceeding on a supported
251 finding of a type of abuse or neglect that does not constitute a severe type of child abuse or
252 neglect may be joined in the juvenile court with an adjudicative proceeding on a supported
253 finding of a severe type of child abuse or neglect.
254 Section 3. Section 63-2-202 is amended to read:
255 63-2-202. Access to private, controlled, and protected documents.
256 (1) Upon request, a governmental entity shall disclose a private record to:
257 (a) the subject of the record;
258 (b) the parent or legal guardian of an unemancipated minor who is the subject of the
259 record;
260 (c) the legal guardian of a legally incapacitated individual who is the subject of the
261 record;
262 (d) any other individual who:
263 (i) has a power of attorney from the subject of the record;
264 (ii) submits a notarized release from the subject of the record or his legal representative
265 dated no more than 90 days before the date the request is made; or
266 (iii) if the record is a medical record described in Subsection 63-2-302 (1)(b), is a health
267 care provider, as defined in Section 26-33a-102 , if releasing the record or information in the
268 record is consistent with normal professional practice and medical ethics; or
269 (e) any person to whom the record must be provided pursuant to:
270 (i) court order as provided in Subsection (7); or
271 (ii) a legislative subpoena as provided in Title 36, Chapter 14.
272 (2) (a) Upon request, a governmental entity shall disclose a controlled record to:
273 (i) a physician, psychologist, certified social worker, insurance provider or producer, or

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275 (A) a release from the subject of the record that is dated no more than 90 days prior to
276 the date the request is made; and
277 (B) a signed acknowledgment of the terms of disclosure of controlled information as
278 provided by Subsection (2)(b); and
279 (ii) any person to whom the record must be disclosed pursuant to:
280 (A) a court order as provided in Subsection (7); or
281 (B) a legislative subpoena as provided in Title 36, Chapter 14.
282 (b) A person who receives a record from a governmental entity in accordance with
283 Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
284 including the subject of the record.
285 (3) If there is more than one subject of a private or controlled record, the portion of the
286 record that pertains to another subject shall be segregated from the portion that the requester is
287 entitled to inspect.
288 (4) Upon request, and except as provided in Subsection (10), a governmental entity
289 shall disclose a protected record to:
290 (a) the person who submitted the record;
291 (b) any other individual who:
292 (i) has a power of attorney from all persons, governmental entities, or political
293 subdivisions whose interests were sought to be protected by the protected classification; or
294 (ii) submits a notarized release from all persons, governmental entities, or political
295 subdivisions whose interests were sought to be protected by the protected classification or from
296 their legal representatives dated no more than 90 days prior to the date the request is made;
297 (c) any person to whom the record must be provided pursuant to:
298 (i) a court order as provided in Subsection (7); or
299 (ii) a legislative subpoena as provided in Title 36, Chapter 14; or
300 (d) the owner of a mobile home park, subject to the conditions of Subsection
301 41-1a-116 (5).
302 (5) A governmental entity may disclose a private, controlled, or protected record to
303 another governmental entity, political subdivision, another state, the United States, or a foreign
304 government only as provided by Section 63-2-206 .

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- 11 - 305 (6) Before releasing a private, controlled, or protected record, the governmental entity
306 shall obtain evidence of the requester's identity.
307 (7) A governmental entity shall disclose a record pursuant to the terms of a court order
308 signed by a judge from a court of competent jurisdiction, provided that:
309 (a) the record deals with a matter in controversy over which the court has jurisdiction;
310 (b) the court has considered the merits of the request for access to the record; and
311 (c) the court has considered and, where appropriate, limited the requester's use and
312 further disclosure of the record in order to protect:
313 (i) privacy interests in the case of private or controlled records;
314 (ii) business confidentiality interests in the case of records protected under Subsection
315 63-2-304 (1), (2), (40)(a)(ii), or (40)(a)(vi); and
316 (iii) privacy interests or the public interest in the case of other protected records;
317 (d) to the extent the record is properly classified private, controlled, or protected, the
318 interests favoring access, considering limitations thereon, outweigh the interests favoring
319 restriction of access; and
320 (e) where access is restricted by a rule, statute, or regulation referred to in Subsection
321 63-2-201 (3)(b), the court has authority independent of this chapter to order disclosure.
322 (8) (a) A governmental entity may disclose or authorize disclosure of private or
323 controlled records for research purposes if the governmental entity:
324 (i) determines that the research purpose cannot reasonably be accomplished without
325 use or disclosure of the information to the researcher in individually identifiable form;
326 (ii) determines that:
327 (A) the proposed research is bona fide; and
328 (B) the value of the research outweighs the infringement upon personal privacy;
329 (iii) (A) requires the researcher to assure the integrity, confidentiality, and security of
330 the records; and
331 (B) requires the removal or destruction of the individual identifiers associated with the
332 records as soon as the purpose of the research project has been accomplished;
333 (iv) prohibits the researcher from:
334 (A) disclosing the record in individually identifiable form, except as provided in
335 Subsection (8)(b); or

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337 entity; and
338 (v) secures from the researcher a written statement of the researcher's understanding of
339 and agreement to the conditions of this Subsection (8) and the researcher's understanding that
340 violation of the terms of this Subsection (8) may subject the researcher to criminal prosecution
341 under Section 63-2-801 .
342 (b) A researcher may disclose a record in individually identifiable form if the record is
343 disclosed for the purpose of auditing or evaluating the research program and no subsequent use
344 or disclosure of the record in individually identifiable form will be made by the auditor or
345 evaluator except as provided by this section.
346 (c) A governmental entity may require indemnification as a condition of permitting
347 research under this Subsection (8).
348 (9) (a) Under Subsections 63-2-201 (5)(b) and 63-2-401 (6), a governmental entity may
349 disclose to persons other than those specified in this section records that are:
350 (i) private under Section 63-2-302 ; or
351 (ii) protected under Section 63-2-304 subject to Section 63-2-308 if a claim for
352 business confidentiality has been made under Section 63-2-308 .
353 (b) Under Subsection 63-2-403 (11)(b), the records committee may require the
354 disclosure to persons other than those specified in this section of records that are:
355 (i) private under Section 63-2-302 ;
356 (ii) controlled under Section 63-2-303 ; or
357 (iii) protected under Section 63-2-304 subject to Section 63-2-308 if a claim for
358 business confidentiality has been made under Section 63-2-308 .
359 (c) Under Subsection 63-2-404 (8), the court may require the disclosure of records that
360 are private under Section 63-2-302 , controlled under Section 63-2-303 , or protected under
361 Section 63-2-304 to persons other than those specified in this section.
362 (10) A record contained in the Management Information System, created in Section
363 62A-4a-1003 , that is found to be unsubstantiated, unsupported, or without merit may not be
364 disclosed to any person except the person who is alleged in the report to be a perpetrator of
365 abuse, neglect, or dependency.
366 Section 4. Section 63-2-304 is amended to read:

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368 The following records are protected if properly classified by a governmental entity:
369 (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
370 has provided the governmental entity with the information specified in Section 63-2-308