Second Substitute H.B. 170

Representative Matt Throckmorton proposes to substitute the following bill:

1 PRESCRIBING PSYCHIATRIC DRUGS OR
2 MEDICATION
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Matt Throckmorton
6 This act modifies the Human Services Code. The act amends the definition of substantiated
7 child abuse to exclude the failure to administer prescribed medication or course of treatment
8 if the parent or legal guardian has not been notified of the opportunity to obtain a physical
9 examination of the minor by a health care professional. The act authorizes the Division of
10 Child and Family Services to report an individual to the appropriate licensing authority if
11 the division has reason to believe the individual exceeded the individual's scope of practice
12 by recommending medication for a minor. This act contains a coordination clause.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 62A-4a-116, as last amended by Chapters 304 and 321, Laws of Utah 2000
16 Be it enacted by the Legislature of the state of Utah:
17 Section 1. Section 62A-4a-116 is amended to read:
18 62A-4a-116. Management information system -- Requirements.
19 (1) The division shall develop and implement a management information system that
20 meets the requirements of this section and the requirements of federal law and regulation.
21 (2) With regard to all child welfare cases, the management information system shall:
22 (a) provide each caseworker with a complete history of each child in his caseload,
23 including:
24 (i) all past action taken by the division with regard to that child and his siblings, the
25 complete case history and all reports and information in the control or keeping of the division

26 regarding that child and his siblings;
27 (ii) the number of times the child has been in foster care;
28 (iii) the cumulative period of time the child has been in foster care;
29 (iv) all reports of abuse or neglect received by the division with regard to that child's parent
30 or parents, including documentation regarding whether each report was substantiated,
31 unsubstantiated, or without merit;
32 (v) the number of times the child's parent or parents have failed any treatment plan; and
33 (vi) the number of different caseworkers who have been assigned to that child in the past;
34 (b) contain all key elements of each family's current treatment plan, including the dates and
35 number of times the plan has been administratively or judicially reviewed, the number of times the
36 parent or parents have failed that treatment plan, and the exact length of time that treatment plan
37 has been in effect;
38 (c) alert caseworkers regarding deadlines for completion of and compliance with treatment
39 plans; and
40 (d) unless the executive director determines that there is good cause for keeping the report
41 on the system based on standards established by rule, delete any reference to:
42 (i) a report that is without merit if no subsequent report involving the same alleged
43 perpetrator has occurred within one year; or
44 (ii) a report that is unsubstantiated if no subsequent report involving the same alleged
45 perpetrator has occurred within ten years.
46 (3) With regard to all child protective services cases, the management information system
47 shall, in addition to the information required in Subsection (2), monitor compliance with the policy
48 of the division, the laws of this state, and federal law and regulation.
49 (4) With regard to all child welfare and protective services cases, the age and date of birth
50 of the alleged perpetrator, at the time the abuse or neglect is alleged to have occurred, shall be
51 included in the management information system.
52 (5) (a) The division shall develop and maintain a part of the information management
53 system for licensing purposes, which shall be:
54 (i) limited to:
55 (A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
56 an opportunity to challenge has been provided under Section 62A-4a-116.5 ;

57 (B) the name of a person who was not sent a notice of agency action under Section
58 62A-4a-116.5 because his location was not available on the management information system or
59 who was sent a notice of agency action that was returned to the division as undelivered for the sole
60 purpose of alerting the division of the need to afford the person an opportunity to challenge the
61 finding of child abuse or neglect under Section 62A-4a-116.5 before any adverse action, beyond
62 delaying the person's licensing application to provide an opportunity for challenge, may be taken;
63 (C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
64 Subsection 62A-4a-116.5 (5) has been met; and
65 (D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
66 abuse of any person; and
67 (ii) accessible by:
68 (A) the Office of Licensing for licensing purposes only;
69 (B) the division:
70 (I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
71 created by Section 78-3a-912 , at the time the person seeks a paid or voluntary position with the
72 Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
73 and
74 (II) to respond to a request for information from the person who is identified as a
75 perpetrator in the report, after advising the person of the screening prohibition in Subsection
76 (4)(d)(iii);
77 (C) subject to the provisions of Subsection (5)(c), the Bureau of Health Facility Licensure
78 within the Department of Health only for the purpose of licensing a child care program or provider,
79 or for determining whether a person associated with a covered health care facility, as defined by
80 the Department of Health by rule, who provides direct care to a child has a substantiated finding
81 of child abuse or neglect; and
82 (D) the department as provided in Subsection (6) and Section 62A-1-118 .
83 (b) For the purpose of Subsection (5)(a), "substantiated":
84 (i) means a finding that there is a reasonable basis to conclude that:
85 (A) a person 18 years of age or older committed one or more of the following types of
86 child abuse or neglect:
87 (I) physical abuse;

88 (II) sexual abuse;
89 (III) sexual exploitation;
90 (IV) abandonment;
91 (V) medical neglect resulting in death, disability, or serious illness; or
92 (VI) chronic or severe neglect; and
93 (B) a person under the age of 18:
94 (I) caused serious physical injury, as defined in Subsection 76-5-109 (1)(d), to another child
95 which indicates a significant risk to other children; or
96 (II) engaged in sexual behavior with or upon another child which indicates a significant
97 risk to other children; and
98 (ii) does not include:
99 (A) the use of reasonable and necessary physical restraint or force by an educator in
100 accordance with Subsection 53A-11-802 (2) or Section 76-2-401 ; [or]
101 (B) a person's conduct that:
102 (I) is justified under Section 76-2-401 ; or
103 (II) constituted the use of reasonable and necessary physical restraint or force in
104 self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
105 other dangerous object in the possession or under the control of a child or to protect the child or
106 another person from physical injury[.]; or
107 (C) (I) failure to administer prescribed or recommended medication or to follow a course
108 of treatment prescribed or recommended by a health care provider as defined in Section 78-14-3,
109 if the division has not provided the legal guardian or parent notice of the opportunity to obtain, at
110 the parent's or guardian's expense, a physical examination of the minor by a health care
111 professional licensed under title 58, Chapter 67, Utah Medical Practice Act, to determine if the
112 course of treatment chosen by the legal guardian or parent is a medically acceptable alternative and
113 is in the best interest of the minor under the circumstances;
114 (II) Subsection (5)(b)(ii)(C)(I) does not apply in circumstances where a delay in the
115 prescribed or recommended medical treatment may result in imminent death or serious disability
116 of the minor; and
117 (III) for purposes of this Subsection (5)(b)(ii)(C), if the division has reason to believe that
118 an individual is making medical recommendations concerning the administration of medication,

119 and the individual is not licensed as a health care provider, as defined in Section 78-14-3 , the
120 division may report that individual to the appropriate licensing authority.
121 (iii) (A) For purposes of Subsection (5)(b)(i)(B), "significant risk" shall be determined in
122 accordance with risk assessment tools and policies established by the division that focus on age,
123 social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and other
124 related considerations.
125 (B) The division shall train its child protection workers to apply the risk assessment tools
126 and policies established under Subsection (5)(b)(iii)(A).
127 (c) (i) The Department of Health shall:
128 (A) designate two persons within the Department of Health to access the licensing part of
129 the management information system; and
130 (B) adopt measures to:
131 (I) protect the security of the licensing part of the management information system; and
132 (II) strictly limit access to the licensing part of the management information system to
133 those designated under Subsection (5)(c)(i)(A).
134 (ii) Those designated under Subsection (5)(c)(i)(A) shall receive training from the
135 department with respect to:
136 (A) accessing the licensing part of the management information system;
137 (B) maintaining strict security; and
138 (C) the criminal provisions in Section 62A-4a-412 for the improper release of information.
139 (iii) Those designated under Subsection (5)(c)(i)(A):
140 (A) are the only ones in the Department of Health with the authority to access the licensing
141 part of the management information system; and
142 (B) may only access the licensing part of the management information system in
143 accordance with the provisions of Subsection (5)(a)(ii).
144 (iv) The Department of Health may obtain information in the possession of the division
145 that relates to a substantiated finding of abuse or neglect of a person screened under this
146 Subsection (5)(c).
147 (d) (i) Information in the licensing part of the management information system is
148 confidential and may only be used or disclosed as specifically provided in this section, Section
149 62A-2-121 , and Section 62A-4a-116.5 .

150 (ii) No person, unless listed in Subsection (5)(a)(ii), may request another person to obtain
151 or release a report or any other information in the possession of the division obtained as a result
152 of the report that is available under Subsection (5)(a)(ii)(A)(III) to screen for potential perpetrators
153 of child abuse or neglect.
154 (iii) A person who requests information knowing that it is a violation of Subsection
155 (5)(d)(ii) to do so is subject to the criminal penalty in Section 62A-4a-412 .
156 (6) All information contained in the management information system shall be available
157 to the department upon the approval of the executive director, on a need-to-know basis.
158 (7) (a) The division may allow its contract providers to have limited access to the
159 management information system. The division shall limit that access to information about persons
160 who are currently receiving services from the specific contract provider.
161 (b) Each contract provider shall:
162 (i) take all necessary precautions to safeguard the security of the information contained in
163 the management information system;
164 (ii) train its employees regarding requirements for confidentiality and the criminal
165 penalties under Sections 62A-4a-412 and 63-2-801 for improper release of information; and
166 (iii) monitor its employees to ensure that they comply with the confidentiality requirements
167 related to the management information system.
168 (c) The division shall take reasonable precautions to ensure that its contract providers are
169 complying with Subsection (7)(b).
170 (8) The division shall take all necessary precautions, including password protection and
171 other appropriate technological techniques, to prevent unauthorized access to the information
172 contained in the management information system.
173 (9) (a) The division shall send a certified letter to a person who submitted a report of child
174 abuse or neglect that is put onto any part of the management information system if the division
175 determines, at the conclusion of its investigation, that:
176 (i) the report is false;
177 (ii) it is more likely than not that the person knew that the report was false at the time the
178 person submitted the report; and
179 (iii) the person's address is known or reasonably available.
180 (b) The letter shall inform the person of:

181 (i) the determination made under Subsection (9)(a);
182 (ii) the penalty for submitting false information under Section 76-8-506 and other
183 applicable laws;
184 (iii) the obligation of the division to inform law enforcement and the alleged perpetrator:
185 (A) in the present instance if an immediate referral is justified by the facts; or
186 (B) if the person submits a subsequent false report involving the same alleged perpetrator
187 or victim.
188 (c) (i) The division may inform law enforcement and the alleged perpetrator of a report for
189 which a letter is required to be sent under Subsection (9)(a) if an immediate referral is justified by
190 the facts.
191 (ii) The division shall inform law enforcement and the alleged perpetrator of a report for
192 which a letter is required to be sent under Subsection (9)(a) if this is the second letter sent to the
193 person involving the same alleged perpetrator or victim.
194 (iii) The division shall determine, in consultation with law enforcement:
195 (A) the information to be given to an alleged perpetrator about a false claim; and
196 (B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
197 about a false claim.
198 (d) Nothing in this Subsection (9) may be construed as requiring the division to conduct
199 an investigation, beyond what is required in Subsection (9)(a), to determine whether or not a report
200 is false.
201 Section 2. Coordination clause.
202 If this bill and H.B. 387, Narrowing Grounds for Removal of a Child from the Home, both
203 pass, it is the intent of the Legislature that in preparing the Utah Code database for publication, the
204 Office of Legislative Research and General Counsel shall:
205 (1) amend the language of Subsection 62A-4a-409 (3)(b) in H.B. 387 to read:
206 "(b) If an investigation by the division shows that the incident reported was not abuse but
207 was the result of the reasonable exercise of discipline by a parent or guardian as defined in
208 Subsection 62A-4a-101 (1)(b), the investigation will proceed no further and the report shall be
209 classified as without merit."; and
210 (2) Subsection 62A-4a-116 (2) in this bill shall be amended by adding a new Subsection
211 (e) which shall read as follows:

212 "(e) for purposes of Subsection (2)(d)(i), "without merit" shall include a report that is
213 determined to be the reasonable exercise of discipline as defined in Subsection 62A-4a-101(1)(b).".