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S.B. 109
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CHILD ABUSE DATABASE INFORMATION
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: John L. Valentine
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AN ACT RELATING TO CHILD WELFARE; PROVIDING THAT WHEN AN ALLEGED
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PERPETRATOR OF ABUSE OR NEGLECT IS INCLUDED IN THE DCFS MANAGEMENT
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INFORMATION SYSTEM, THE AGE AND DATE OF BIRTH OF THAT ALLEGED
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PERPETRATOR ALSO BE INCLUDED; AND PROVIDING TECHNICAL CORRECTIONS.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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62A-4a-116, as last amended by Chapter 164, Laws of Utah 1999
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62A-4a-116.5, as last amended by Chapter 164, Laws of Utah 1999
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62A-4a-412, as last amended by Chapters 164 and 377, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-116
is amended to read:
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62A-4a-116. Management information system -- Requirements.
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(1) The division shall develop and implement a management information system that
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meets the requirements of this section and the requirements of federal law and regulation.
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(2) With regard to all child welfare cases, the management information system shall:
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(a) provide each caseworker with a complete history of each child in his caseload,
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including:
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(i) all past action taken by the division with regard to that child and his siblings, the
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complete case history and all reports and information in the control or keeping of the division
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regarding that child and his siblings;
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(ii) the number of times the child has been in foster care;
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(iii) the cumulative period of time the child has been in foster care;
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(iv) all reports of abuse or neglect received by the division with regard to that child's parent
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or parents, including documentation regarding whether each report was substantiated,
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unsubstantiated, or without merit;
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(v) the number of times the child's parent or parents have failed any treatment plan; and
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(vi) the number of different caseworkers who have been assigned to that child in the past;
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(b) contain all key elements of each family's current treatment plan, including the dates and
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number of times the plan has been administratively or judicially reviewed, the number of times the
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parent or parents have failed that treatment plan, and the exact length of time that treatment plan
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has been in effect;
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(c) alert caseworkers regarding deadlines for completion of and compliance with treatment
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plans; and
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(d) unless the executive director determines that there is good cause for keeping the report
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on the system based on standards established by rule, delete any reference to:
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(i) a report that is without merit if no subsequent report involving the same alleged
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perpetrator has occurred within one year; or
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(ii) a report that is unsubstantiated if no subsequent report involving the same alleged
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perpetrator has occurred within ten years.
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(3) With regard to all child protective services cases, the management information system
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shall, in addition to the information required in Subsection (2), monitor compliance with the policy
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of the division, the laws of this state, and federal law and regulation.
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(4) With regard to all child welfare and protective services cases, the age and date of birth
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of the alleged perpetrator, at the time the abuse or neglect is alleged to have occurred, shall be
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included in the management information system.
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[(4)] (5) (a) The division shall develop and maintain a part of the information management
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system for licensing purposes, which shall be:
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(i) limited to:
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(A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
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an opportunity to challenge has been provided under Section
62A-4a-116.5
;
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(B) the name of a person who was not sent a notice of agency action under Section
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62A-4a-116.5
because his location was not available on the management information system or
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who was sent a notice of agency action that was returned to the division as undelivered for the sole
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purpose of alerting the division of the need to afford the person an opportunity to challenge the
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finding of child abuse or neglect under Section
62A-4a-116.5
before any adverse action, beyond
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delaying the person's licensing application to provide an opportunity for challenge, may be taken;
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(C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
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Subsection
62A-4a-116.5
(5) has been met; and
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(D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
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abuse of any person; and
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(ii) accessible by:
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(A) the Office of Licensing for licensing purposes only;
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(B) the division:
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(I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
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created by Section
78-3a-912
, at the time the person seeks a paid or voluntary position with the
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Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
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and
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(II) to respond to a request for information from the person who is identified as a
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perpetrator in the report, after advising the person of the screening prohibition in Subsection
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(4)(d)(iii);
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(C) subject to the provisions of Subsection [(4)] (5)(c), the Bureau of Health Facility
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Licensure within the Department of Health only for the purpose of licensing a child care program
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or provider, or for determining whether a person associated with a covered health care facility, as
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defined by the Department of Health by rule, who provides direct care to a child has a substantiated
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finding of child abuse or neglect; and
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(D) the department as provided in Subsection [(5)] (6) and Section
62A-1-118
.
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(b) For the purpose of Subsection [(4)] (5)(a), "substantiated":
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(i) means a finding that there is a reasonable basis to conclude that:
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(A) a person 18 years of age or older committed one or more of the following types of
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child abuse or neglect:
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(I) physical abuse;
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(II) sexual abuse;
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(III) sexual exploitation;
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(IV) abandonment;
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(V) medical neglect resulting in death, disability, or serious illness; or
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(VI) chronic or severe neglect; and
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(B) a person under the age of 18:
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(I) caused serious physical injury, as defined in Section
76-5-109
(1)(d), to another child
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which indicates a significant risk to other children; or
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(II) engaged in sexual behavior with or upon another child which indicates a significant
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risk to other children; and
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(ii) does not include:
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(A) the use of reasonable and necessary physical restraint or force by an educator in
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accordance with Subsection
53A-11-802
(2) or Section
76-2-401
; or
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(B) a person's conduct that:
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(I) is justified under Section
76-2-401
; or
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(II) constituted the use of reasonable and necessary physical restraint or force in
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self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
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other dangerous object in the possession or under the control of a child or to protect the child or
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another person from physical injury.
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(iii) (A) For purposes of Subsection [(4)] (5)(b)(i)(B), "significant risk" shall be
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determined in accordance with risk assessment tools and policies established by the division that
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focus on age, social factors, emotional factors, sexual factors, intellectual factors, family risk
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factors, and other related considerations.
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(B) The division shall train its child protection workers to apply the risk assessment tools
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and policies established under Subsection [(4)] (5)(b)(iii)(A).
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(c) (i) The Department of Health shall:
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(A) designate two persons within the Department of Health to access the licensing part of
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the management information system; and
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(B) adopt measures to:
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(I) protect the security of the licensing part of the management information system; and
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(II) strictly limit access to the licensing part of the management information system to
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those designated under Subsection [(4)] (5)(c)(i)(A).
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(ii) Those designated under Subsection [(4)] (5)(c)(i)(A) shall receive training from the
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department with respect to:
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(A) accessing the licensing part of the management information system;
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(B) maintaining strict security; and
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(C) the criminal provisions in Section
62A-4a-412
for the improper release of information.
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(iii) Those designated under Subsection [(4)] (5)(c)(i)(A):
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(A) are the only ones in the Department of Health with the authority to access the licensing
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part of the management information system; and
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(B) may only access the licensing part of the management information system in
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accordance with the provisions of Subsection [(4)] (5)(a)(ii).
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(iv) The Department of Health may obtain information in the possession of the division
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that relates to a substantiated finding of abuse or neglect of a person screened under this
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Subsection [(4)] (5)(c).
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(d) (i) Information in the licensing part of the management information system is
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confidential and may only be used or disclosed as specifically provided in this section, Section
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62A-2-121
, and Section
62A-4a-116.5
.
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(ii) No person, unless listed in Subsection [(4)] (5)(a)(ii), may request another person to
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obtain or release a report or any other information in the possession of the division obtained as a
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result of the report that is available under Subsection [(4)] (5)(a)(ii)(A)(III) to screen for potential
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perpetrators of child abuse or neglect.
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(iii) A person who requests information knowing that it is a violation of Subsection [(4)]
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(5)(d)(ii) to do so is subject to the criminal penalty in Section
62A-4a-412
.
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[(5)] (6) All information contained in the management information system shall be
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available to the department upon the approval of the executive director, on a need-to-know basis.
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[(6)] (7) The information contained in the management information system shall be
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encrypted.
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[(7)] (8) (a) The division shall send a certified letter to a person who submitted a report
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of child abuse or neglect that is put onto any part of the management information system if the
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division determines, at the conclusion of its investigation, that:
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(i) the report is false;
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(ii) it is more likely than not that the person knew that the report was false at the time the
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person submitted the report; and
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(iii) the person's address is known or reasonably available.
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(b) The letter shall inform the person of:
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(i) the determination made under Subsection [(7)] (8)(a);
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(ii) the penalty for submitting false information under Section 76-8-506 and other
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applicable laws;
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(iii) the obligation of the division to inform law enforcement and the alleged perpetrator:
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(A) in the present instance if an immediate referral is justified by the facts; or
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(B) if the person submits a subsequent false report involving the same alleged perpetrator
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or victim.
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(c) (i) The division may inform law enforcement and the alleged perpetrator of a report for
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which a letter is required to be sent under Subsection [(7)] (8)(a) if an immediate referral is
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justified by the facts.
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(ii) The division shall inform law enforcement and the alleged perpetrator of a report for
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which a letter is required to be sent under Subsection [(7)] (8)(a) if this is the second letter sent to
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the person involving the same alleged perpetrator or victim.
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(iii) The division shall determine, in consultation with law enforcement:
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(A) the information to be given to an alleged perpetrator about a false claim; and
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(B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
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about a false claim.
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(d) Nothing in this Subsection [(7)] (8) may be construed as requiring the division to
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conduct an investigation, beyond what is required in Subsection [(7)] (8)(a), to determine whether
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or not a report is false.
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Section 2.
Section
62A-4a-116.5
is amended to read:
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62A-4a-116.5. Opportunity to challenge a finding of child abuse or neglect.
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(1) (a) The division shall send a notice of agency action to a person if the division finds,
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at the conclusion of an investigation, that, in the opinion of the division, there is a reasonable basis
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to conclude that the person committed abuse or neglect listed in Subsection
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62A-4a-116
[(4)](5)(b)(i). In the event that the person is under the age of 18, the division shall:
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(i) make reasonable efforts to identify the person's parent or legal guardian; and
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(ii) send a notice to each parent or legal guardian identified under Subsection (1)(a)(i) that
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lives at a different address unless there is good cause, as defined by rule, for not sending a notice
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to a parent or legal guardian.
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(b) For purposes of this section only, which governs the right of a person to challenge the
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division's initial finding or opinion of abuse or neglect as it pertains to the licensing part of the
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management information system, the division shall refer to a finding under Subsection (1)(a) as
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a "finding" or an "initial finding" of abuse or neglect when notifying or explaining a notification
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to a person.
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(c) Nothing in this section may be construed as affecting:
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(i) the manner in which the division conducts an investigation; or
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(ii) the use or effect, in any other setting, of:
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(A) an initial division finding or substantiation of child abuse or neglect at the completion
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of an investigation for any purpose other than for notification under Subsection (1)(b); or
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(B) the term "substantiated" as used in any other provision of the code.
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(2) The notice shall state:
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(a) that the division conducted an investigation;
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(b) that the division found, at the conclusion of the investigation, that there was, in the
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opinion of the division, a reasonable basis to conclude that abuse or neglect occurred;
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(c) the facts that support the finding;
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(d) that the person may be disqualified from adopting a child or working for or being
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licensed by:
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(i) the department;
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(ii) a human services licensee;
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(iii) a child care provider or program; and
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(iv) a covered health care facility;
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(e) that the person has the right to request:
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(i) a copy of the report; and
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(ii) an opportunity to challenge the finding and its inclusion on the licensing part of the
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management information system described in Subsection
62A-4a-116
[(4)](5), except as provided
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in Subsection (5)(b); and
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(f) that failure to request an opportunity to challenge the finding within 30 days of the
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notice being received will result in an unappealable finding of substantiation of child abuse or
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neglect, unless the person can show good cause for why compliance within the 30-day requirement
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was virtually impossible or unreasonably burdensome.
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(3) (a) A person may make a request to challenge a finding within 30 days of:
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(i) a notice being received under Subsection (2);
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(ii) a finding by a court of competent jurisdiction based on the same underlying facts that:
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(A) child abuse or neglect, as described in Subsection
62A-4a-116
[(4)](5)(b), did not
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occur; or
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(B) the person was not responsible for the child abuse or neglect that did occur; or
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(iii) the dismissal of criminal charges or a verdict of not guilty based on the same
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underlying facts.
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(b) The 30-day requirement of Subsection (3)(a) shall be extended for good cause shown
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that compliance was virtually impossible or unreasonably burdensome.
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(c) The division may approve or deny a request made under Subsection (3)(a).
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(d) If the division denies the request or fails to act within 30 days after receiving a request
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submitted under Subsection (3)(a), the Office of Administrative Hearings shall hold an
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adjudicative proceeding pursuant to Title 63, Chapter 46b, Administrative Procedures Act.
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(4) (a) In an adjudicative proceeding held pursuant to Subsection (3)(d), the division shall
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prove by a preponderance of the evidence that there is a reasonable basis to conclude that:
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(i) child abuse or neglect, as described in Subsection
62A-4a-116
[(4)](5)(b), occurred; and
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(ii) the person was substantially responsible for the abuse or neglect that occurred.
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(b) The administrative hearing officer may make a determination of substantiation based
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solely on the out-of-court statement of the child that the officer finds to be reliable under the
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standards set forth in:
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(i) Section
76-5-411
;
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(ii) Utah Rules of Criminal Procedure, Rule 15.5;
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(iii) Section 78-3a-116(5);
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(iv) the Utah Rules of Evidence; or
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(v) Utah case law.
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(5) (a) A person may not make a request to challenge a finding under Subsection (3)(a),
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if, at anytime, a court of competent jurisdiction has made a determination based on the same
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underlying facts that:
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(i) child abuse or neglect, as described in Subsection
62A-4a-116
[(4)](5)(b), occurred;
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(ii) the person was substantially responsible for the abuse or neglect that occurred; and
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(iii) the person:
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(A) was a party to the proceeding; or
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(B) (I) had notice of the proceeding; and
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(II) was provided a meaningful opportunity to challenge the facts underlying the court's
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determination.
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(b) An adjudicative proceeding held pursuant to Subsection (4) may be stayed during the
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time a judicial action is pending.
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(6) Nothing in this section may affect the inclusion or exclusion of a report or finding of
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child abuse or neglect from or access by the division, its caseworkers, and child protective services
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workers to that part of the management information system used for purposes of child welfare
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cases and child protective services as described in Subsections
62A-4a-116
(2) and (3).
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(7) By December 31, 1998, the division shall provide notice to each person with a finding
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of abuse or neglect since January 1, 1994.
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(8) A person who, after receiving notice, fails to challenge a finding of child abuse or
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neglect may request the opportunity to challenge the finding under this section:
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(a) if since the time that the person received notice, state law has been amended to permit
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a broader use of or access to information on the licensing part of the management information
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system; and
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(b) before the finding may be used against the person in connection with the broader use
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or access.
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Section 3.
Section
62A-4a-412
is amended to read:
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62A-4a-412. Reports and information confidential.
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(1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well
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as any other information in the possession of the division obtained as the result of a report is
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confidential and may only be made available to:
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(a) a police or law enforcement agency investigating a report of known or suspected child
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abuse or neglect;
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(b) a physician who reasonably believes that a child may be the subject of abuse or neglect;
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(c) an agency, including a school district, that has responsibility or authority to care for,
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treat, or supervise a child who is the subject of a report;
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(d) any subject of the report, the natural parents of the minor, and the guardian ad litem;
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(e) a court, upon a finding that access to the records may be necessary for the
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determination of an issue before it, provided that in a divorce, custody, or related proceeding
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between private parties, the record alone is:
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(i) limited to objective or undisputed facts that were verified at the time of the
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investigation; and
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(ii) devoid of conclusions drawn by the division or any of its workers on the ultimate issue
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of whether or not a person's acts or omissions constituted any level of abuse or neglect of another
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person;
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(f) an office of the public prosecutor or its deputies in performing an official duty;
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(g) a person authorized by a Children's Justice Center, for the purposes described in
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Section
67-5b-102
;
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(h) a person engaged in bona fide research, when approved by the director of the division,
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if the information does not include names and addresses;
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(i) the State Office of Education for the purpose of evaluating whether an individual
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should be permitted to obtain or retain a license as an educator or serve as an employee or
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volunteer in a school, limited to information with substantiated findings involving an alleged
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sexual offense, an alleged felony or class A misdemeanor drug offense, or any alleged offense
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against the person under Title 76, Chapter 5, Offenses Against the Person, and with the
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understanding that the office must provide the subject of a report received under Subsection (1)(j)
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with an opportunity to respond to the report before making a decision concerning licensure or
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employment; and
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(j) any person identified in the report as a perpetrator or possible perpetrator of child abuse
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or neglect, after being advised of the screening prohibition in Subsection (2).
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(2) (a) No person, unless listed in Subsection (1), may request another person to obtain or
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release a report or any other information in the possession of the division obtained as a result of
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the report that is available under Subsection (1)(j) to screen for potential perpetrators of child
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abuse or neglect.
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(b) A person who requests information knowing that it is a violation of Subsection (2)(a)
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to do so is subject to the criminal penalty in Subsection (4).
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(3) Except as provided in Subsection
62A-4a-116
[(7)](8)(c), the division and law
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enforcement officials shall ensure the anonymity of the person or persons making the initial report
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and any others involved in its subsequent investigation.
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(4) Any person who wilfully permits, or aides and abets the release of data or information
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obtained as a result of this part, in the possession of the division or contained on any part of the
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management information system, in violation of this part or Section
62A-4a-116
, is guilty of a
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class C misdemeanor.
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(5) The physician-patient privilege is not a ground for excluding evidence regarding a
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child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
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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.