S.B. 109

1

CHILD ABUSE DATABASE INFORMATION
2 2000 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: John L. Valentine
5 AN ACT RELATING TO CHILD WELFARE; PROVIDING THAT WHEN AN ALLEGED
6 PERPETRATOR OF ABUSE OR NEGLECT IS INCLUDED IN THE DCFS MANAGEMENT
7 INFORMATION SYSTEM, THE AGE AND DATE OF BIRTH OF THAT ALLEGED
8 PERPETRATOR ALSO BE INCLUDED; AND PROVIDING TECHNICAL CORRECTIONS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 62A-4a-116, as last amended by Chapter 164, Laws of Utah 1999
12 62A-4a-116.5, as last amended by Chapter 164, Laws of Utah 1999
13 62A-4a-412, as last amended by Chapters 164 and 377, Laws of Utah 1999
14 Be it enacted by the Legislature of the state of Utah:
15 Section 1. Section 62A-4a-116 is amended to read:
16 62A-4a-116. Management information system -- Requirements.
17 (1) The division shall develop and implement a management information system that
18 meets the requirements of this section and the requirements of federal law and regulation.
19 (2) With regard to all child welfare cases, the management information system shall:
20 (a) provide each caseworker with a complete history of each child in his caseload,
21 including:
22 (i) all past action taken by the division with regard to that child and his siblings, the
23 complete case history and all reports and information in the control or keeping of the division
24 regarding that child and his siblings;
25 (ii) the number of times the child has been in foster care;
26 (iii) the cumulative period of time the child has been in foster care;
27 (iv) all reports of abuse or neglect received by the division with regard to that child's parent

28 or parents, including documentation regarding whether each report was substantiated,
29 unsubstantiated, or without merit;
30 (v) the number of times the child's parent or parents have failed any treatment plan; and
31 (vi) the number of different caseworkers who have been assigned to that child in the past;
32 (b) contain all key elements of each family's current treatment plan, including the dates and
33 number of times the plan has been administratively or judicially reviewed, the number of times the
34 parent or parents have failed that treatment plan, and the exact length of time that treatment plan
35 has been in effect;
36 (c) alert caseworkers regarding deadlines for completion of and compliance with treatment
37 plans; and
38 (d) unless the executive director determines that there is good cause for keeping the report
39 on the system based on standards established by rule, delete any reference to:
40 (i) a report that is without merit if no subsequent report involving the same alleged
41 perpetrator has occurred within one year; or
42 (ii) a report that is unsubstantiated if no subsequent report involving the same alleged
43 perpetrator has occurred within ten years.
44 (3) With regard to all child protective services cases, the management information system
45 shall, in addition to the information required in Subsection (2), monitor compliance with the policy
46 of the division, the laws of this state, and federal law and regulation.
47 (4) With regard to all child welfare and protective services cases, the age and date of birth
48 of the alleged perpetrator, at the time the abuse or neglect is alleged to have occurred, shall be
49 included in the management information system.
50 [(4)] (5) (a) The division shall develop and maintain a part of the information management
51 system for licensing purposes, which shall be:
52 (i) limited to:
53 (A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
54 an opportunity to challenge has been provided under Section 62A-4a-116.5 ;
55 (B) the name of a person who was not sent a notice of agency action under Section
56 62A-4a-116.5 because his location was not available on the management information system or
57 who was sent a notice of agency action that was returned to the division as undelivered for the sole
58 purpose of alerting the division of the need to afford the person an opportunity to challenge the

59 finding of child abuse or neglect under Section 62A-4a-116.5 before any adverse action, beyond
60 delaying the person's licensing application to provide an opportunity for challenge, may be taken;
61 (C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
62 Subsection 62A-4a-116.5 (5) has been met; and
63 (D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
64 abuse of any person; and
65 (ii) accessible by:
66 (A) the Office of Licensing for licensing purposes only;
67 (B) the division:
68 (I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
69 created by Section 78-3a-912 , at the time the person seeks a paid or voluntary position with the
70 Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
71 and
72 (II) to respond to a request for information from the person who is identified as a
73 perpetrator in the report, after advising the person of the screening prohibition in Subsection
74 (4)(d)(iii);
75 (C) subject to the provisions of Subsection [(4)] (5)(c), the Bureau of Health Facility
76 Licensure within the Department of Health only for the purpose of licensing a child care program
77 or provider, or for determining whether a person associated with a covered health care facility, as
78 defined by the Department of Health by rule, who provides direct care to a child has a substantiated
79 finding of child abuse or neglect; and
80 (D) the department as provided in Subsection [(5)] (6) and Section 62A-1-118 .
81 (b) For the purpose of Subsection [(4)] (5)(a), "substantiated":
82 (i) means a finding that there is a reasonable basis to conclude that:
83 (A) a person 18 years of age or older committed one or more of the following types of
84 child abuse or neglect:
85 (I) physical abuse;
86 (II) sexual abuse;
87 (III) sexual exploitation;
88 (IV) abandonment;
89 (V) medical neglect resulting in death, disability, or serious illness; or

90 (VI) chronic or severe neglect; and
91 (B) a person under the age of 18:
92 (I) caused serious physical injury, as defined in Section 76-5-109 (1)(d), to another child
93 which indicates a significant risk to other children; or
94 (II) engaged in sexual behavior with or upon another child which indicates a significant
95 risk to other children; and
96 (ii) does not include:
97 (A) the use of reasonable and necessary physical restraint or force by an educator in
98 accordance with Subsection 53A-11-802 (2) or Section 76-2-401 ; or
99 (B) a person's conduct that:
100 (I) is justified under Section 76-2-401 ; or
101 (II) constituted the use of reasonable and necessary physical restraint or force in
102 self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
103 other dangerous object in the possession or under the control of a child or to protect the child or
104 another person from physical injury.
105 (iii) (A) For purposes of Subsection [(4)] (5)(b)(i)(B), "significant risk" shall be
106 determined in accordance with risk assessment tools and policies established by the division that
107 focus on age, social factors, emotional factors, sexual factors, intellectual factors, family risk
108 factors, and other related considerations.
109 (B) The division shall train its child protection workers to apply the risk assessment tools
110 and policies established under Subsection [(4)] (5)(b)(iii)(A).
111 (c) (i) The Department of Health shall:
112 (A) designate two persons within the Department of Health to access the licensing part of
113 the management information system; and
114 (B) adopt measures to:
115 (I) protect the security of the licensing part of the management information system; and
116 (II) strictly limit access to the licensing part of the management information system to
117 those designated under Subsection [(4)] (5)(c)(i)(A).
118 (ii) Those designated under Subsection [(4)] (5)(c)(i)(A) shall receive training from the
119 department with respect to:
120 (A) accessing the licensing part of the management information system;

121 (B) maintaining strict security; and
122 (C) the criminal provisions in Section 62A-4a-412 for the improper release of information.
123 (iii) Those designated under Subsection [(4)] (5)(c)(i)(A):
124 (A) are the only ones in the Department of Health with the authority to access the licensing
125 part of the management information system; and
126 (B) may only access the licensing part of the management information system in
127 accordance with the provisions of Subsection [(4)] (5)(a)(ii).
128 (iv) The Department of Health may obtain information in the possession of the division
129 that relates to a substantiated finding of abuse or neglect of a person screened under this
130 Subsection [(4)] (5)(c).
131 (d) (i) Information in the licensing part of the management information system is
132 confidential and may only be used or disclosed as specifically provided in this section, Section
133 62A-2-121 , and Section 62A-4a-116.5 .
134 (ii) No person, unless listed in Subsection [(4)] (5)(a)(ii), may request another person to
135 obtain or release a report or any other information in the possession of the division obtained as a
136 result of the report that is available under Subsection [(4)] (5)(a)(ii)(A)(III) to screen for potential
137 perpetrators of child abuse or neglect.
138 (iii) A person who requests information knowing that it is a violation of Subsection [(4)]
139 (5)(d)(ii) to do so is subject to the criminal penalty in Section 62A-4a-412 .
140 [(5)] (6) All information contained in the management information system shall be
141 available to the department upon the approval of the executive director, on a need-to-know basis.
142 [(6)] (7) The information contained in the management information system shall be
143 encrypted.
144 [(7)] (8) (a) The division shall send a certified letter to a person who submitted a report
145 of child abuse or neglect that is put onto any part of the management information system if the
146 division determines, at the conclusion of its investigation, that:
147 (i) the report is false;
148 (ii) it is more likely than not that the person knew that the report was false at the time the
149 person submitted the report; and
150 (iii) the person's address is known or reasonably available.
151 (b) The letter shall inform the person of:

152 (i) the determination made under Subsection [(7)] (8)(a);
153 (ii) the penalty for submitting false information under Section 76-8-506 and other
154 applicable laws;
155 (iii) the obligation of the division to inform law enforcement and the alleged perpetrator:
156 (A) in the present instance if an immediate referral is justified by the facts; or
157 (B) if the person submits a subsequent false report involving the same alleged perpetrator
158 or victim.
159 (c) (i) The division may inform law enforcement and the alleged perpetrator of a report for
160 which a letter is required to be sent under Subsection [(7)] (8)(a) if an immediate referral is
161 justified by the facts.
162 (ii) The division shall inform law enforcement and the alleged perpetrator of a report for
163 which a letter is required to be sent under Subsection [(7)] (8)(a) if this is the second letter sent to
164 the person involving the same alleged perpetrator or victim.
165 (iii) The division shall determine, in consultation with law enforcement:
166 (A) the information to be given to an alleged perpetrator about a false claim; and
167 (B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
168 about a false claim.
169 (d) Nothing in this Subsection [(7)] (8) may be construed as requiring the division to
170 conduct an investigation, beyond what is required in Subsection [(7)] (8)(a), to determine whether
171 or not a report is false.
172 Section 2. Section 62A-4a-116.5 is amended to read:
173 62A-4a-116.5. Opportunity to challenge a finding of child abuse or neglect.
174 (1) (a) The division shall send a notice of agency action to a person if the division finds,
175 at the conclusion of an investigation, that, in the opinion of the division, there is a reasonable basis
176 to conclude that the person committed abuse or neglect listed in Subsection
177 62A-4a-116 [(4)](5)(b)(i). In the event that the person is under the age of 18, the division shall:
178 (i) make reasonable efforts to identify the person's parent or legal guardian; and
179 (ii) send a notice to each parent or legal guardian identified under Subsection (1)(a)(i) that
180 lives at a different address unless there is good cause, as defined by rule, for not sending a notice
181 to a parent or legal guardian.
182 (b) For purposes of this section only, which governs the right of a person to challenge the

183 division's initial finding or opinion of abuse or neglect as it pertains to the licensing part of the
184 management information system, the division shall refer to a finding under Subsection (1)(a) as
185 a "finding" or an "initial finding" of abuse or neglect when notifying or explaining a notification
186 to a person.
187 (c) Nothing in this section may be construed as affecting:
188 (i) the manner in which the division conducts an investigation; or
189 (ii) the use or effect, in any other setting, of:
190 (A) an initial division finding or substantiation of child abuse or neglect at the completion
191 of an investigation for any purpose other than for notification under Subsection (1)(b); or
192 (B) the term "substantiated" as used in any other provision of the code.
193 (2) The notice shall state:
194 (a) that the division conducted an investigation;
195 (b) that the division found, at the conclusion of the investigation, that there was, in the
196 opinion of the division, a reasonable basis to conclude that abuse or neglect occurred;
197 (c) the facts that support the finding;
198 (d) that the person may be disqualified from adopting a child or working for or being
199 licensed by:
200 (i) the department;
201 (ii) a human services licensee;
202 (iii) a child care provider or program; and
203 (iv) a covered health care facility;
204 (e) that the person has the right to request:
205 (i) a copy of the report; and
206 (ii) an opportunity to challenge the finding and its inclusion on the licensing part of the
207 management information system described in Subsection 62A-4a-116 [(4)](5), except as provided
208 in Subsection (5)(b); and
209 (f) that failure to request an opportunity to challenge the finding within 30 days of the
210 notice being received will result in an unappealable finding of substantiation of child abuse or
211 neglect, unless the person can show good cause for why compliance within the 30-day requirement
212 was virtually impossible or unreasonably burdensome.
213 (3) (a) A person may make a request to challenge a finding within 30 days of:

214 (i) a notice being received under Subsection (2);
215 (ii) a finding by a court of competent jurisdiction based on the same underlying facts that:
216 (A) child abuse or neglect, as described in Subsection 62A-4a-116 [(4)](5)(b), did not
217 occur; or
218 (B) the person was not responsible for the child abuse or neglect that did occur; or
219 (iii) the dismissal of criminal charges or a verdict of not guilty based on the same
220 underlying facts.
221 (b) The 30-day requirement of Subsection (3)(a) shall be extended for good cause shown
222 that compliance was virtually impossible or unreasonably burdensome.
223 (c) The division may approve or deny a request made under Subsection (3)(a).
224 (d) If the division denies the request or fails to act within 30 days after receiving a request
225 submitted under Subsection (3)(a), the Office of Administrative Hearings shall hold an
226 adjudicative proceeding pursuant to Title 63, Chapter 46b, Administrative Procedures Act.
227 (4) (a) In an adjudicative proceeding held pursuant to Subsection (3)(d), the division shall
228 prove by a preponderance of the evidence that there is a reasonable basis to conclude that:
229 (i) child abuse or neglect, as described in Subsection 62A-4a-116 [(4)](5)(b), occurred; and
230 (ii) the person was substantially responsible for the abuse or neglect that occurred.
231 (b) The administrative hearing officer may make a determination of substantiation based
232 solely on the out-of-court statement of the child that the officer finds to be reliable under the
233 standards set forth in:
234 (i) Section 76-5-411 ;
235 (ii) Utah Rules of Criminal Procedure, Rule 15.5;
236 (iii) Section 78-3a-116(5);
237 (iv) the Utah Rules of Evidence; or
238 (v) Utah case law.
239 (5) (a) A person may not make a request to challenge a finding under Subsection (3)(a),
240 if, at anytime, a court of competent jurisdiction has made a determination based on the same
241 underlying facts that:
242 (i) child abuse or neglect, as described in Subsection 62A-4a-116 [(4)](5)(b), occurred;
243 (ii) the person was substantially responsible for the abuse or neglect that occurred; and
244 (iii) the person:

245 (A) was a party to the proceeding; or
246 (B) (I) had notice of the proceeding; and
247 (II) was provided a meaningful opportunity to challenge the facts underlying the court's
248 determination.
249 (b) An adjudicative proceeding held pursuant to Subsection (4) may be stayed during the
250 time a judicial action is pending.
251 (6) Nothing in this section may affect the inclusion or exclusion of a report or finding of
252 child abuse or neglect from or access by the division, its caseworkers, and child protective services
253 workers to that part of the management information system used for purposes of child welfare
254 cases and child protective services as described in Subsections 62A-4a-116 (2) and (3).
255 (7) By December 31, 1998, the division shall provide notice to each person with a finding
256 of abuse or neglect since January 1, 1994.
257 (8) A person who, after receiving notice, fails to challenge a finding of child abuse or
258 neglect may request the opportunity to challenge the finding under this section:
259 (a) if since the time that the person received notice, state law has been amended to permit
260 a broader use of or access to information on the licensing part of the management information
261 system; and
262 (b) before the finding may be used against the person in connection with the broader use
263 or access.
264 Section 3. Section 62A-4a-412 is amended to read:
265 62A-4a-412. Reports and information confidential.
266 (1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well
267 as any other information in the possession of the division obtained as the result of a report is
268 confidential and may only be made available to:
269 (a) a police or law enforcement agency investigating a report of known or suspected child
270 abuse or neglect;
271 (b) a physician who reasonably believes that a child may be the subject of abuse or neglect;
272 (c) an agency, including a school district, that has responsibility or authority to care for,
273 treat, or supervise a child who is the subject of a report;
274 (d) any subject of the report, the natural parents of the minor, and the guardian ad litem;
275 (e) a court, upon a finding that access to the records may be necessary for the

276 determination of an issue before it, provided that in a divorce, custody, or related proceeding
277 between private parties, the record alone is:
278 (i) limited to objective or undisputed facts that were verified at the time of the
279 investigation; and
280 (ii) devoid of conclusions drawn by the division or any of its workers on the ultimate issue
281 of whether or not a person's acts or omissions constituted any level of abuse or neglect of another
282 person;
283 (f) an office of the public prosecutor or its deputies in performing an official duty;
284 (g) a person authorized by a Children's Justice Center, for the purposes described in
285 Section 67-5b-102 ;
286 (h) a person engaged in bona fide research, when approved by the director of the division,
287 if the information does not include names and addresses;
288 (i) the State Office of Education for the purpose of evaluating whether an individual
289 should be permitted to obtain or retain a license as an educator or serve as an employee or
290 volunteer in a school, limited to information with substantiated findings involving an alleged
291 sexual offense, an alleged felony or class A misdemeanor drug offense, or any alleged offense
292 against the person under Title 76, Chapter 5, Offenses Against the Person, and with the
293 understanding that the office must provide the subject of a report received under Subsection (1)(j)
294 with an opportunity to respond to the report before making a decision concerning licensure or
295 employment; and
296 (j) any person identified in the report as a perpetrator or possible perpetrator of child abuse
297 or neglect, after being advised of the screening prohibition in Subsection (2).
298 (2) (a) No person, unless listed in Subsection (1), may request another person to obtain or
299 release a report or any other information in the possession of the division obtained as a result of
300 the report that is available under Subsection (1)(j) to screen for potential perpetrators of child
301 abuse or neglect.
302 (b) A person who requests information knowing that it is a violation of Subsection (2)(a)
303 to do so is subject to the criminal penalty in Subsection (4).
304 (3) Except as provided in Subsection 62A-4a-116 [(7)](8)(c), the division and law
305 enforcement officials shall ensure the anonymity of the person or persons making the initial report
306 and any others involved in its subsequent investigation.

307 (4) Any person who wilfully permits, or aides and abets the release of data or information
308 obtained as a result of this part, in the possession of the division or contained on any part of the
309 management information system, in violation of this part or Section 62A-4a-116 , is guilty of a
310 class C misdemeanor.
311 (5) The physician-patient privilege is not a ground for excluding evidence regarding a
312 child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
313 good faith pursuant to this part.




Legislative Review Note
as of 1-6-00 11:35 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel