Second Substitute S.B. 17

Representative Wayne A. Harper 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 Juvenile Court
12 Act of 1996 relating to the Management Information System maintained by the
13 Department of Human Services.
14 Highlighted Provisions:
15 This bill:
16 . provides that reports that are found to be without merit and false may not be
17 included in the Management Information System;
18 . provides that contract providers for the Division of Child and Family Services and
19 designated court clerks may only have access to reports on the Management
20 Information System that are substantiated or supported;
21 . requires that, when the division or a court makes a finding that a report is without
22 merit, the division or the court must also determine whether the report is false;
23 . describes how long a report remains on the Management Information System;
24 . provides that proceedings for judicial review of a final agency action relating to a
25 report on the Management Information System are closed to the public;

26 . grants rulemaking authority to the Judicial Council to ensure the confidentiality of
27 the proceedings described above; and
28 . makes technical changes.
29 Monies Appropriated in this Bill:
30 None
31 Other Special Clauses:
32 None
33 Utah Code Sections Affected:
34 AMENDS:
35 26-21-9.5, as last amended by Chapter 43, Laws of Utah 2007
36 62A-2-121, as last amended by Chapter 152, Laws of Utah 2007
37 62A-4a-1003, as last amended by Laws of Utah 2007, Chapter 152
38 62A-4a-1008, as renumbered and amended by Laws of Utah 2006, Chapter 77
39 62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
40 78A-6-103, as renumbered and amended by Laws of Utah 2008, Chapter 3
41 78A-6-323, as renumbered and amended by Laws of Utah 2008, Chapter 3
42 ENACTS:
43 62A-4a-1003.5, Utah Code Annotated 1953
44
45 Be it enacted by the Legislature of the state of Utah:
46 Section 1. Section 26-21-9.5 is amended to read:
47 26-21-9.5. Criminal background check and Licensing Information System check.
48 (1) For purposes of this section:
49 (a) "Covered health care facility" means:
50 (i) home health care agencies;
51 (ii) hospices;
52 (iii) nursing care facilities;
53 (iv) assisted-living facilities;
54 (v) small health care facilities; and
55 (vi) end stage renal disease facilities.
56 (b) "Covered person" includes:

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

88 pursuant to Subsection (2) and who provides direct care to children is listed in the Licensing
89 Information System described in Section 62A-4a-1006 or has a substantiated finding by a court
90 of a severe type of child abuse or neglect under Section [ 78-3a-320 ] 78A-6-323 , if
91 identification as a possible perpetrator of child abuse or neglect is relevant to the employment
92 activities of that individual;
93 (b) an individual whose name and other identifying information has been submitted
94 pursuant to Subsection (2) and who provides direct care to disabled or elder adults, or who is
95 residing in a residential home that is a facility licensed to provide direct care to disabled or
96 elder adults has a substantiated finding of abuse, neglect, or exploitation of a disabled or elder
97 adult by accessing in accordance with Subsection (5) the database created in Section
98 62A-3-311.1 if identification as a possible perpetrator of disabled or elder adult abuse, neglect,
99 or exploitation is relevant to the employment activities or residence of that person; or
100 (c) an individual whose name or other identifying information has been submitted
101 pursuant to Subsection (2) has been adjudicated in a juvenile court of committing an act which
102 if committed by an adult would be a felony or a misdemeanor if:
103 (i) the individual is under the age of 28 years; or
104 (ii) the individual is over the age of 28 and has been convicted, has pleaded no contest,
105 or is currently subject to a plea in abeyance or diversion agreement for any felony or
106 misdemeanor.
107 (5) (a) The department shall:
108 (i) designate two persons within the department to access:
109 (A) the Licensing Information System described in Section 62A-4a-1006 ;
110 (B) court records under Subsection [ 78-3a-320 (6)] 78A-6-323 (7);
111 (C) the database described in Subsection (4)(b); and
112 (D) juvenile court records as permitted by Subsection (4)(c); and
113 (ii) adopt measures to:
114 (A) protect the security of the Licensing Information System, the court records, and the
115 database; and
116 (B) strictly limit access to the Licensing Information System, the court records, and the
117 database to those designated under Subsection (5)(a)(i).
118 (b) Those designated under Subsection (5)(a)(i) shall receive training from the

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

150 System of the Division of Child and Family Services created by Section 62A-4a-1006 and
151 juvenile court records under Subsection [ 78-3a-320 (6)] 78A-6-323 (7), for the purpose of:
152 (a) (i) determining whether a person associated with a licensee, with direct access to
153 children:
154 (A) is listed in the Licensing Information System; or
155 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
156 neglect under Subsections [ 78-3a-320 ] 78A-6-323 (1) and (2); and
157 (ii) informing a licensee that a person associated with the licensee:
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 ] 78A-6-323 (1) and (2);
161 (b) (i) determining whether a certified local inspector applicant:
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 ] 78A-6-323 (1) and (2); and
165 (ii) informing a local government that 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 ] 78A-6-323 (1) and (2);
169 (c) (i) determining whether a direct service worker:
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 ] 78A-6-323 (1) and (2); and
173 (ii) informing a direct service worker or the direct service worker's employer that the
174 direct service worker:
175 (A) is listed in the Licensing Information System; or
176 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
177 neglect under Subsections [ 78-3a-320 ] 78A-6-323 (1) and (2); or
178 (d) (i) determining whether a personal care attendant:
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 ] 78A-6-323 (1) and (2); and
182 (ii) informing a person described in Subsections 62A-3-101 (9)(a)(i) through (iv) that a
183 personal care attendant:
184 (A) is listed in the Licensing Information System; or
185 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
186 neglect under Subsections [ 78-3a-320 ] 78A-6-323 (1) and (2).
187 (3) Notwithstanding Subsection (2), the department may access the Division of Child
188 and Family Service's Management Information System under Section 62A-4a-1003 :
189 (a) for the purpose of licensing and monitoring foster parents; and
190 (b) for the purposes described in Subsection 62A-4a-1003 (1)(d).
191 (4) After receiving identifying information for a person under Subsection
192 62A-2-120 (1), the department shall process the information for the purposes described in
193 Subsection (2).
194 (5) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
195 Rulemaking Act, consistent with this chapter, defining the circumstances under which a person
196 may have direct access or provide services to children when:
197 (a) the person is listed in the Licensing Information System of the Division of Child
198 and Family Services created by Section 62A-4a-1006 ; or
199 (b) juvenile court records show that a court made a substantiated finding under Section
200 [ 78-3a-320 ] 78A-6-323 , that the person committed a severe type of child abuse or neglect.
201 Section 3. Section 62A-4a-1003 is amended to read:
202 62A-4a-1003. Management Information System -- Requirements -- Contents --
203 Purpose -- Access.
204 (1) (a) The division shall develop and implement a Management Information System
205 that meets the requirements of this section and the requirements of federal law and regulation.
206 (b) The information and records contained in the Management Information System:
207 (i) are protected records under Title 63, Chapter 2, Government Records Access and
208 Management Act; and
209 (ii) except as provided in Subsections (1)(c) and (d), are available only to a person with
210 statutory authorization under Title 63, Chapter 2, Government Records Access and
211 Management Act, to review the information and records described in this Subsection (1)(b).

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

243 (C) substantiated by a juvenile court;
244 (D) unsubstantiated by a juvenile court; or
245 (E) without merit;
246 (f) the number of times the child's parent or parents failed any child and family plan;
247 and
248 (g) the number of different caseworkers who have been assigned to that child in the
249 past.
250 (3) The Management Information System may not include a report, or any reference to
251 a report, that is:
252 (a) found by the division to be:
253 (i) without merit; and
254 (ii) false, under Section 62A-4a-1003.5 ; or
255 (b) found by a court to be:
256 (i) without merit; and
257 (ii) false, under Subsection 78A-6-323 (4).
258 [(3)] (4) The [division's] Management Information System shall:
259 (a) contain all key elements of each family's current child and family plan, including:
260 (i) the dates and number of times the plan has been administratively or judicially
261 reviewed;
262 (ii) the number of times the parent or parents have failed that child and family plan;
263 and
264 (iii) the exact length of time the child and family plan has been in effect; and
265 (b) alert caseworkers regarding deadlines for completion of and compliance with
266 policy, including child and family plans.
267 [(4)] (5) With regard to all child protective services cases, the Management
268 Information System shall:
269 (a) monitor the compliance of each case with:
270 (i) division rule and policy;
271 (ii) state law; and
272 (iii) federal law and regulation; and
273 (b) include the age and date of birth of the alleged perpetrator at the time the abuse or

274 neglect is alleged to have occurred, in order to ensure accuracy regarding the identification of
275 the alleged perpetrator.
276 [(5)] (6) Except as provided in Subsection [(6)] (7) regarding contract providers and
277 Section 62A-4a-1006 regarding limited access to the Licensing Information System, all
278 information contained in the division's Management Information System is available to the
279 department, upon the approval of the executive director, on a need-to-know basis.
280 [(6)] (7) (a) Subject to this Subsection [(6)] (7), the division may allow its contract
281 providers, court clerks designated by the Administrative Office of the Courts, and the Office of
282 the Guardian Ad Litem to have limited access to the Management Information System.
283 (b) A division contract provider has access only to information about a person who is
284 currently receiving services from that specific contract provider.
285 (c) (i) Designated court clerks may only have access to information necessary to
286 comply with Subsection [ 78-3h-102 ] 78B-7-202 (2).
287 (ii) The Office of the Guardian Ad Litem may access only the information that:
288 (A) relates to children and families where the Office of the Guardian Ad Litem is
289 appointed by a court to represent the interests of the children; and
290 (B) except as provided in Subsection [(6)] (7)(d), is entered into the Management
291 Information System on or after July 1, 2004.
292 (d) Notwithstanding Subsection [(6)] (7)(c)(ii)(B), the Office of the Guardian Ad Litem
293 shall have access to all child abuse and neglect referrals about children and families where the
294 office has been appointed by a court to represent the interests of the children, regardless of the
295 date that the information is entered into the Management Information System.
296 (e) Each contract provider and designated representative of the Office of the Guardian
297 Ad Litem who requests access to information contained in the Management Information
298 System shall:
299 (i) take all necessary precautions to safeguard the security of the information contained
300 in the Management Information System;
301 (ii) train its employees regarding:
302 (A) requirements for protecting the information contained in the Management
303 Information System as required by this chapter and under Title 63, Chapter 2, Government
304 Records Access and Management Act; and

305 (B) the criminal penalties under Sections 62A-4a-412 and 63-2-801 for improper
306 release of information; and
307 (iii) monitor its employees to ensure that they protect the information contained in the
308 Management Information System as required by law.
309 (f) The division shall take reasonable precautions to ensure that its contract providers
310 comply with the requirements of this Subsection [(6)] (7).
311 (g) The contract providers and designated court clerks described in this Subsection (7)
312 may not have access to reports, or references to reports, that are found to be unsubstantiated,
313 unsupported, or without merit.
314 [(7)] (8) The division shall take all necessary precautions, including password
315 protection and other appropriate and available technological techniques, to prevent
316 unauthorized access to or release of information contained in the Management Information
317 System.
318 Section 4. Section 62A-4a-1003.5 is enacted to read:
319 62A-4a-1003.5. Report without merit -- Additional finding.
320 If the division finds that a report is without merit, the division shall make an additional
321 finding regarding whether the report is false.
322 Section 5. Section 62A-4a-1008 is amended to read:
323 62A-4a-1008. Timeframes for deletion of specified information or reports.
324 [(1) Unless the executive director determines that there is good cause for keeping a
325 report of abuse or neglect in the Management Information System, based on standards
326 established by rule, the division shall delete any reference to:]
327 [(a) a report that is without merit, if no subsequent report involving the same alleged
328 perpetrator has occurred within one year; or]
329 [(b) a report that is determined by a court of competent jurisdiction to be
330 unsubstantiated or without merit, if no subsequent report involving the same alleged
331 perpetrator has occurred within five years.]
332 (1) Except as provided in Subsection (3) or (4), the division shall delete from the
333 Management Information System a report that is unsubstantiated or unsupported:
334 (a) after the report has been on the Management Information system for three years,
335 unless the alleged perpetrator is listed on the Management Information System as the

336 perpetrator in a previous substantiated or supported report; or
337 (b) after the report has been on the Management Information System for five years, if
338 the alleged perpetrator is listed on the Management Information System as the perpetrator in a
339 previous substantiated or supported report.
340 (2) Except as provided in Subsection (3), (4), or 62A-4a-1003 (3), the division shall
341 delete from the Management Information System a report that is without merit after the report
342 has been on the Management Information System one year.
343 (3) The time periods described in Subsections (1) and (2) shall start over, beginning on
344 the day that a subsequent report is placed on the Management Information System, if:
345 (a) the alleged perpetrator in the subsequent report is the same as the alleged
346 perpetrator in the report described in Subsection (1) or (2); and
347 (b) the subsequent report is found to be:
348 (i) supported;
349 (ii) unsupported;
350 (iii) substantiated;
351 (iv) unsubstantiated; or
352 (v) without merit, unless the report is:
353 (A) found by the division to be false, under Section 62A-4a-1003.5 ; or
354 (B) found by a court to be false, under Subsection 78A-6-323 (4).
355 (4) (a) Except for a report described in Subsection 62A-4a-1003 (3), a report described
356 in this section may not be deleted, unless otherwise ordered by a court, if the executive director
357 determines, based on standards established by rule, that there is good cause for keeping the
358 report in the Management Information System.
359 (b) A court may order the division to delete a report before the time periods described
360 in this section, if the court finds, by clear and convincing evidence, that it is in the interests of
361 justice to order deletion of the report at an earlier time.
362 (5) When the division deletes a report under this section, the division shall also delete
363 all references to the report, and information contained in the report, from the Management
364 Information System.
365 [(2)] (6) (a) The division shall maintain a separation of reports as follows:
366 (i) those that are supported;

367 (ii) those that are unsupported;
368 (iii) those that are without merit;
369 (iv) those that are unsubstantiated under the law in effect prior to May 6, 2002;
370 (v) those that are substantiated under the law in effect prior to May 6, 2002; and
371 (vi) those that are consented-to supported findings under Subsection