H.B. 42 Enrolled

MEDICAL RECOMMENDATIONS FOR
CHILDREN
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Michael T. Morley
Senate Sponsor: D. Chris Buttars
Bradley M. Daw
Margaret Dayton
Glenn A. Donnelson
John Dougall
James A. Ferrin
Craig A. Frank
James R. GowansWayne A. Harper
Gregory H. Hughes
Bradley T. Johnson
Todd E. Kiser
Rebecca D. Lockhart
Michael E. NoelCurtis Oda
Paul Ray
Aaron Tilton
David Ure
Mark W. Walker
Peggy Wallace
LONG TITLE
General Description:
This bill prohibits school personnel from making certain medical recommendations for
a minor, including the use of psychotropic drugs, and prohibits consideration of a
petition for removal of a minor, and removal of a minor from parental custody based on
a parent's refusal to consent to the administration of psychotropic drugs.
Highlighted Provisions:
This bill:
. prohibits school personnel from making certain medical recommendations for a
minor, including the use of psychotropic drugs;
. prohibits the removal of a minor from parental custody based on a parent's refusal to
consent to the administration of psychotropic drugs; and
. prohibits the consideration of a petition for removal of a minor from parental
custody based on a parent's refusal to consent to the administration of psychotropic
drugs.
Monies Appropriated in this Bill:
None

Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78-3a-301, as last amended by Chapter 356, Laws of Utah 2004
78-3a-305, as last amended by Chapters 68 and 326, Laws of Utah 2003
ENACTS:
53A-11-603, Utah Code Annotated 1953

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 53A-11-603 is enacted to read:
53A-11-603. Definitions -- Prohibited recommendations -- Psychotropic drugs --
Exceptions -- Penalties.
(1) As used in this section:
(a) "Federal education law" means:
(i) 20 U.S.C. Sec. 1401 et seq.;
(ii) 20 U.S.C. Sec. 7101 et seq.;
(iii) 29 U.S.C. Sec. 794; and
(iv) 42 U.S.C. Sec. 12101 et seq.
(b) "School" means a public school.
(2) Except as provided in Subsection (4), (5), or (6), school personnel may not:
(a) recommend to a parent or guardian that a child take or continue to take a psychotropic
drug;
(b) require that a child take or continue to take a psychotropic drug as a condition for
attending school;
(c) recommend that a parent or guardian seek or use any of the following:
(i) the administration of any psychotropic medication to a child;
(ii) a psychiatric or psychological treatment for a child; or

(iii) a psychiatric evaluation of a child;
(d) conduct a psychiatric or behavioral health evaluation or mental health screening, test,
evaluation, or assessment of a child;
(e) recommend a licensed physician, psychologist, or any other health specialist to a
parent or guardian for a child; or
(f) make a child abuse or neglect report to authorities, including the Division of Child
and Family Services, solely or primarily on the basis that a parent or guardian refuses to consent
to:
(i) the administration of a psychotropic drug to a child;
(ii) a psychiatric, psychological, or behavioral treatment for a child; or
(iii) a psychiatric or behavioral health evaluation of a child.
(3) Nothing in this section may be construed to restrict school personnel from:
(a) communicating information between school personnel regarding a child;
(b) informing a child's parent or guardian of a perceived behavioral problem of the child,
provided that:
(i) an assertion or recommendation is not made in violation of Subsection (2); and
(ii) an attempt is not made to denigrate, criticize, or punish a parent, guardian, or child
for a decision made by the parent or guardian for the child to take, not take, or discontinue to take
a psychotropic drug; or
(c) exercising their authority relating to the placement within the school or readmission
of a child who may be or has been suspended or expelled for a violation of Section 53A-11-904 .
(4) Notwithstanding Subsections (2)(c) and (d), a mental health professional acting in
accordance with Title 58, Chapter 60, Mental Health Professional Practice Act, or licensed
through the State Board of Education, working within the school system may:
(a) recommend, but not require, a psychiatric or behavioral health evaluation of a child;
(b) recommend, but not require, psychiatric, psychological, or behavioral treatment for a
child; and
(c) conduct a psychiatric or behavioral health evaluation or mental health screening, test,

evaluation, or assessment of a child if a child's parent or guardian signs a consent form that
provides notice of the specific psychiatric or behavioral mental health evaluation or mental health
screening, test, evaluation, or assessment and includes a copy of any mental health test that will
be administered.
(5) Notwithstanding Subsection (2)(f), school personnel may make a report that would
otherwise be prohibited under Subsection (2)(f) if failure to take the action described under
Subsection (2)(f) would present a serious, imminent risk to the child's safety or the safety of
others.
(6) A local school board shall adopt a policy that indicates that a violation of this section
is cause for disciplinary action under Section 53A-8-104 .
Section 2. Section 78-3a-301 is amended to read:
78-3a-301. Court-ordered protective custody of a minor following petition filing --
Grounds.
(1) After a petition has been filed under Subsection 78-3a-305 (1), if the minor who is the
subject of the petition is not in the protective custody of the division, a court may order that the
minor be removed from the minor's home or otherwise taken into protective custody if the court
finds, by a preponderance of the evidence, that any one or more of the following circumstances
exist:
(a) there is an imminent danger to the physical health or safety of the minor and the
minor's physical health or safety may not be protected without removing the minor from the
custody of the minor's parent or guardian;
(b) a parent or guardian engages in or threatens the minor with unreasonable conduct that
causes the minor to suffer emotional damage and there are no reasonable means available by
which the minor's emotional health may be protected without removing the minor from the
custody of the minor's parent or guardian;
(c) the minor or another minor residing in the same household has been physically or
sexually abused, or is considered to be at substantial risk of being physically or sexually abused,
by a parent or guardian, a member of the parent's or guardian's household, or other person known

to the parent or guardian;
(d) the parent or guardian is unwilling to have physical custody of the minor;
(e) the minor has been abandoned or left without any provision for the minor's support;
(f) a parent or guardian who has been incarcerated or institutionalized has not arranged or
cannot arrange for safe and appropriate care for the minor;
(g) a relative or other adult custodian with whom the minor has been left by the parent or
guardian is unwilling or unable to provide care or support for the minor, the whereabouts of the
parent or guardian are unknown, and reasonable efforts to locate the parent or guardian have been
unsuccessful;
(h) the minor is in immediate need of medical care;
(i) (i) a parent's or guardian's actions, omissions, or habitual action create an environment
that poses a threat to the minor's health or safety; or
(ii) a parent's or guardian's action in leaving a minor unattended would reasonably pose a
threat to the minor's health or safety;
(j) the minor or another minor residing in the same household has been neglected;
(k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
(l) the parent or guardian, or an adult residing in the same household as the parent or
guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
Act, and any clandestine laboratory operation, as defined in Section 58-37d-3 , was located in the
residence or on the property where the minor resided; or
(m) the minor's welfare is otherwise endangered.
(2) (a) For purposes of Subsection (1)(a), if a minor has previously been adjudicated as
abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency has
occurred involving the same substantiated abuser or under similar circumstance as the previous
abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the
custody of the minor's parent.
(b) For purposes of Subsection (1)(c):
(i) another minor residing in the same household may not be removed from the home

unless that minor is considered to be at substantial risk of being physically or sexually abused as
described in Subsection (1)(c) or Subsection (2)(b)(ii); and
(ii) if a parent or guardian has received actual notice that physical or sexual abuse by a
person known to the parent has occurred, and there is evidence that the parent or guardian failed
to protect the minor, after having received the notice, by allowing the minor to be in the physical
presence of the alleged abuser, that fact constitutes prima facie evidence that the minor is at
substantial risk of being physically or sexually abused.
(3) In the absence of one of the factors described in Subsection (1), a court may not
remove a minor from the parent's or guardian's custody on the basis of:
(a) educational neglect;
(b) mental illness or poverty of the parent or guardian; or
(c) disability of the parent or guardian, as defined in Subsection 57-21-3 (9).
(4) (a) Except as provided in Subsection (4)(b), a court or the Division of Child and
Family Services may not remove a minor from the custody of the minor's parent or guardian on
the sole or primary basis that the parent or guardian refuses to consent to:
(i) the administration of a psychotropic drug to a child;
(ii) a psychiatric, psychological, or behavioral treatment for a child; or
(iii) a psychiatric or behavioral health evaluation of a child.
(b) Notwithstanding Subsection (4)(a), a court or the Division of Child and Family
Services may remove a minor under conditions that would otherwise be prohibited under
Subsection (4)(a) if failure to take an action described under Subsection (4)(a) would present a
serious, imminent risk to the child's safety or the safety of others.
[(4)] (5) A minor removed from the custody of the minor's parent or guardian under this
section may not be placed or kept in a secure detention facility pending further court proceedings
unless the minor is detainable based on guidelines promulgated by the Division of Juvenile
Justice Services.
[(5)] (6) This section does not preclude removal of a minor from the minor's home
without a warrant or court order under Section 62A-4a-202.1 .

Section 3. Section 78-3a-305 is amended to read:
78-3a-305. Petition filed -- Protective orders.
(1) Any interested person may file a petition to commence proceedings in the juvenile
court alleging that a minor is abused, neglected, or dependent. The person shall first make a
referral with the division.
(2) (a) If the child who is the subject of a petition was removed from his home by the
Division of Child and Family Services that petition shall be filed on or before the date of the
initial shelter hearing described in Section 78-3a-306 .
(b) If a petition is requested by the division, the attorney general shall file the petition
within 72 hours of the completion of the investigation and request, excluding weekends and
holidays, if:
(i) the child who is the subject of the requested petition has not been removed from his
home by the division; and
(ii) without an expedited hearing and services ordered under the protective supervision of
the court, the child will likely be taken into protective custody.
(3) The petition shall be verified, and contain all of the following:
(a) the name, age, and address, if any, of the minor upon whose behalf the petition is
brought;
(b) the names and addresses, if known to the petitioner, of both parents and any guardian
of the minor;
(c) a concise statement of facts, separately stated, to support the conclusion that the
minor upon whose behalf the petition is being brought is abused, neglected, or dependent; and
(d) a statement regarding whether the minor is in protective custody, and if so, the date
and precise time the minor was taken into protective custody.
(4) (a) Except as provided in Subsection (4)(b), a court or the Division of Child and
Family Services may not remove a minor from the custody of the minor's parent or guardian on
the sole or primary basis that the parent or guardian refuses to consent to:
(i) the administration of a psychotropic drug to a child;

(ii) a psychiatric, psychological, or behavioral treatment for a child; or
(iii) a psychiatric or behavioral health evaluation of a child.
(b) Notwithstanding Subsection (4)(a), a court or the Division of Child and Family
Services may remove a minor under conditions that would otherwise be prohibited under
Subsection (4)(a) if failure to take an action described under Subsection (4)(a) would present a
serious, imminent risk to the child's safety or the safety of others.