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Second Substitute S.B. 17
Senator D. Chris Buttars proposes the following substitute bill:
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DCFS MANAGEMENT INFORMATION SYSTEM
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AMENDMENTS
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: D. Chris Buttars
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This act amends the Human Services Code and the Judicial Code. The act adds definitions
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of various terms used in the Management Information System and Licensing Information
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System provisions. The act reorganizes and clarifies statutes governing the Division of Child
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and Family Services' Management Information System. The act provides that when the
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division makes a supported finding of certain types of severe child abuse or neglect that
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finding is referred to juvenile court or a notice is personally served upon the alleged
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perpetrator. The act provides that in certain circumstances the alleged perpetrator has the
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right to either consent to entry of the alleged perpetrator's name on the Licensing
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Information System or to petition for a hearing before a juvenile court judge. The act
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provides that the juvenile court will make a finding of substantiated, unsubstantiated, or
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without merit and provide a copy of its determination to the division. The act provides that
17
the division remove information from the Licensing Information System after a juvenile
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court makes a finding. The act clarifies the right of judicial review of final agency action.
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The act provides an opportunity for certain persons to petition the juvenile court to remove
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their names from the Licensing Information System. The act provides that certain juvenile
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court records and related appellate court records are accessible for licensing purposes. The
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act clarifies that information contained in the Management Information System and
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Licensing Information System is a protected record. The act expands the jurisdiction of the
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juvenile court. The act makes technical changes.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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26-21-9.5, as last amended by Chapter 276, Laws of Utah 1999
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26-39-105.5, as last amended by Chapter 86, Laws of Utah 2000
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62A-1-118, as enacted by Chapter 358, Laws of Utah 1998
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62A-2-121, as last amended by Chapter 164, Laws of Utah 1999
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62A-4a-101, as last amended by Chapter 134, Laws of Utah 2001
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62A-4a-116, as last amended by Chapters 153 and 184, Laws of Utah 2001
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62A-4a-116.5, as last amended by Chapter 153, Laws of Utah 2001
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62A-4a-202.7, as enacted by Chapter 228, Laws of Utah 2000
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62A-4a-412, as last amended by Chapter 9, Laws of Utah 2001
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63-2-304, as last amended by Chapters 232 and 335, Laws of Utah 2000
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78-3a-103, as last amended by Chapters 134 and 255, Laws of Utah 2001
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78-3a-104, as last amended by Chapters 213 and 255, Laws of Utah 2001
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ENACTS:
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62A-4a-116.1, Utah Code Annotated 1953
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62A-4a-116.2, Utah Code Annotated 1953
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62A-4a-116.3, Utah Code Annotated 1953
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62A-4a-116.4, Utah Code Annotated 1953
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62A-4a-116.6, Utah Code Annotated 1953
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78-3a-320, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
26-21-9.5
is amended to read:
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26-21-9.5. Criminal background check and Licensing Information System check.
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(1) In addition to the licensing requirements of Sections
26-21-8
and
26-21-9
, a covered
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health care facility, as defined in Subsection (10), at the time of initial application for a license and
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license renewal shall:
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(a) submit the name and other identifying information of each person associated with the
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facility who:
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(i) provides direct care to a patient; and
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(ii) has been the subject of a criminal background check within the preceding three-year
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period by a public or private entity recognized by the department; and
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(b) submit the name and other identifying information, which may include fingerprints,
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of each person associated with the facility who:
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(i) provides direct care to a patient; and
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(ii) has not been the subject of a criminal background check in accordance with Subsection
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(1)(a)(ii).
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(2) (a) The department shall forward the information received under Subsection (1)(b) to
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the Criminal Investigations and Technical Services Division of the Department of Public Safety
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for processing to determine whether an individual has been convicted of any crime.
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(b) If an individual has not had residency in Utah for the last five years, the individual shall
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submit fingerprints for an FBI national criminal history record check. The fingerprints shall be
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submitted to the FBI through the Criminal Investigations and Technical Services Division. The
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individual or licensee is responsible for the cost of the fingerprinting and national criminal history
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check.
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(3) The department may determine whether:
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(a) an individual whose name and other identifying information has been submitted
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pursuant to Subsection (1) and who provides direct care to children [has a substantiated finding
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of child abuse or neglect by accessing in accordance with Subsection (4) the licensing part of the
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management information system created in Section
62A-4a-116
] is listed in the Licensing
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Information System described in Section
62A-4a-116
or has a substantiated finding by a court of
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severe child abuse or neglect under Section
78-3a-320
, if identification as a possible perpetrator
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of child abuse or neglect is relevant to the employment activities of that individual; or
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(b) an individual whose name and other identifying information has been submitted
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pursuant to Subsection (1) and who provides direct care to disabled or elder adults has a
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substantiated finding of abuse, neglect, or exploitation of a disabled or elder adult by accessing in
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accordance with Subsection (4) the database created in Section
62A-3-311.1
if identification as
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a possible perpetrator of disabled or elder adult abuse, neglect, or exploitation is relevant to the
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employment activities of that person.
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(4) (a) The department shall:
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(i) designate two persons within the department to access the [licensing part of the
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management information system] Licensing Information System described in Section
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62A-4a-116.2
and court records under Subsection
78-3a-320
(4) and two persons to access the
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database described in Subsection (3)(b); and
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(ii) adopt measures to:
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(A) protect the security of the [management information system] Licensing Information
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System, the court records, and the database; and
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(B) strictly limit access to the [management information system] Licensing Information
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System, the court records, and the database to those designated under Subsection (4)(a)(i).
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(b) Those designated under Subsection (4)(a)(i) shall receive training from the Department
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of Human Services with respect to:
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(i) accessing the [management information system] Licensing Information System, the
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court records, and the database;
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(ii) maintaining strict security; and
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(iii) the criminal provisions in Section
62A-4a-412
for the improper release of information.
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(c) Those designated under Subsection (4)(a)(i):
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(i) are the only ones in the department with the authority to access the [management
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information system] Licensing Information System, the court records, and database; and
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(ii) may only access the [management information system] Licensing Information System,
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the court records, and the database for the purpose of licensing and in accordance with the
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provisions of Subsection (3).
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(5) Within ten days of initially hiring an individual, a covered health care facility shall
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submit the individual's information to the department in accordance with Subsection (1).
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(6) The department shall adopt rules under Title 63, Chapter 46a, S
UTAH
s Administrative
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Rulemaking Act, consistent with this chapter, defining the circumstances under which a person
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who has been convicted of a criminal offense [or has a substantiated report of child abuse or
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neglect or disabled or elder adult abuse, neglect, or exploitation may provide direct care], or a
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person described in Subsection (3), may provide direct care to a patient in a covered health care
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facility, taking into account the nature of the criminal conviction or substantiated finding and its
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relation to patient care.
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(7) The department may, in accordance with Section
26-1-6
, assess reasonable fees for a
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criminal background check processed pursuant to this section.
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(8) The department may inform the covered health care facility of [the criminal conviction
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or substantiated finding of child abuse or neglect of an individual associated with the facility]
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information discovered under Subsection (3) with respect to an individual associated with the
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facility.
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(9) A covered health care facility is not civilly liable for submitting information to the
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department as required by Subsection (1).
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(10) For purposes of this section, "covered health care facility" only includes:
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(a) home health care agencies;
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(b) hospices;
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(c) nursing care facilities;
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(d) assisted-living facilities;
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(e) small health care facilities; and
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(f) end stage renal disease facilities.
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Section 2.
Section
26-39-105.5
is amended to read:
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26-39-105.5. Residential child care certificate.
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(1) (a) A residential child care provider of five to eight children shall obtain a Residential
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Child Care Certificate from the department unless Section
26-39-106
applies.
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(b) The qualifications for a Residential Child Care Certificate are limited to:
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(i) the submission of:
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(A) an application in the form prescribed by the department;
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(B) a certification and criminal background fee established in accordance with Section
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26-1-6
; and
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(C) identifying information described in Subsection
26-39-107
(1) for each adult person
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who resides in the provider's home:
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(I) for processing by the Department of Public Safety to determine whether any such
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person has been convicted of a crime; [and]
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(II) to screen for a substantiated finding of child abuse or neglect [pursuant to Section
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62A-4a-116
] by a juvenile court; and
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(III) to discover whether the person is listed in the Licensing Information System described
146
in Section
62A-4a-116.2
.
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(ii) an initial and annual inspection of the provider's home within 90 days of sending an
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intent to inspect notice to:
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(A) check the immunization record of each child who receives child care in the provider's
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home;
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(B) identify serious sanitation, fire, and health hazards to children; and
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(C) make appropriate recommendations; and
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(iii) for new providers, completion of:
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(A) five hours of department-approved training; and
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(B) a department-approved CPR and first aid course.
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(c) If a serious sanitation, fire, or health hazard has been found during an inspection
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conducted pursuant to Subsection (1)(b)(ii), the department may, at the option of the residential
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care provider:
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(i) require corrective action for the serious hazards found and make an unannounced
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follow up inspection to determine compliance; or
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(ii) inform the parents of each child in the care of the provider of the results of the
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department's inspection and the failure of the provider to take corrective action.
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(d) In addition to an inspection conducted pursuant to Subsection (1)(b)(ii), the department
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may inspect the home of a residential care provider of five to eight children in response to a
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complaint of:
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(i) child abuse or neglect;
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(ii) serious health hazards in or around the provider's home; or
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(iii) providing residential child care without the appropriate certificate or license.
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(2) Notwithstanding this section:
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(a) a license under Section
26-39-105
is required of a residential child care provider who
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cares for nine or more children;
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(b) a certified residential child care provider may not provide care to more than two
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children under the age of two; and
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(c) an inspection may be required of a residential child care provider in connection with
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a federal child care program.
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(3) With respect to residential child care, the department may only make and enforce rules
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necessary to implement this section.
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Section 3.
Section
62A-1-118
is amended to read:
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62A-1-118. Access to abuse and neglect information to screen employees and
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volunteers.
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(1) With respect to department employees and volunteers, the department may only access
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information in the Division of Child and Family Service's [management information system]
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Management Information System created by Section
62A-4a-116
and the Division of Aging and
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Adult Services database created by Section
62A-3-311.1
for the purpose of determining at the time
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of hire and each year thereafter whether a department employee or volunteer has an adjudication
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of abuse or neglect or since January 1, 1994, a substantiated finding of abuse or neglect after notice
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and an opportunity for a hearing consistent with Title 63, Chapter 46b, Administrative Procedures
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Act, but only if identification as a possible perpetrator of abuse or neglect is directly relevant to
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the employment or volunteer activities of that person.
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(2) A department employee or volunteer to whom Subsection (1) applies shall submit to
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the department his name and other identifying information upon request.
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(3) The department shall process the information to determine whether the employee or
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volunteer has a substantiated finding of child abuse or neglect.
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(4) The department shall adopt rules defining permissible and impermissible work-related
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activities for a department employee or volunteer with one or more substantiated findings of abuse
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or neglect.
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Section 4.
Section
62A-2-121
is amended to read:
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62A-2-121. Access to abuse and neglect information for licensing purposes.
199
(1) With respect to human services licensees, the department may access only the
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[licensing part] Licensing Information System of the Division of Child and Family [Service's
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management information system] Services created by [Section
62A-4a-116
] Section
62A-4a-116.2
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and juvenile court records under Subsection
78-3a-320
(4), for the purpose of:
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(a) determining whether a person associated with a licensee, who provides care described
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in Subsection (2), is listed in the Licensing Information System or has a substantiated finding by
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a juvenile court of a severe type of child abuse or neglect under Subsections
78-3a-320
(1) and (2);
205a
S
AND
s
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(b) informing a licensee, who provides care described in Subsection (2), that a person
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associated with the licensee is listed in the Licensing Information System or has a substantiated
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finding by a juvenile court of a severe type of child abuse or neglect under Subsections
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78-3a-320
(1) and (2).
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(2) (a) A licensee or individual applying for or renewing a license to provide child-placing
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services, youth programs, substitute care, foster care, or institutionalized care to children shall
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submit to the department the name and other identifying information of a person associated with
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the licensee.
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(b) The office shall process the information [to determine whether the licensee or a person
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associated with a licensee has a substantiated finding of child abuse or neglect] for the purposes
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described in Subsection (1).
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(3) The [office] department shall adopt rules under Title 63, Chapter 46a, Utah
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Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under
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which a person associated with a licensee who is listed in the Licensing Information System or has
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a substantiated finding by a court of a severe type of child abuse or neglect under Subsections
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78-3a-320
(1) and (2) may provide [child-placing services, foster care, youth programs, substitute
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care, or institutionalized care for children in a facility licenced by the department] services to
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children.
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Section 5.
Section
62A-4a-101
is amended to read:
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62A-4a-101. Definitions.
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As used in this chapter:
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(1) "Abuse" means:
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(a) actual or threatened nonaccidental physical or mental harm;
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(b) negligent treatment;
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(c) sexual exploitation; or
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(d) any sexual abuse.
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(2) "Adoption services" means placing children for adoption, subsidizing adoptions under
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Section
62A-4a-105
, supervising adoption placements until the adoption is finalized by the court,
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conducting adoption studies, preparing adoption reports upon request of the court, and providing
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postadoptive placement services, upon request of a family, for the purpose of stabilizing a possible
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disruptive placement.
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(3) "Board" means the Board of Child and Family Services established in accordance with
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Sections
62A-1-105
,
62A-1-107
, and
62A-4a-102
.
239
(4) "Child" has the same meaning as "minor," as defined in this section.
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[(4)] (5) "Consumer" means a person who receives services offered by the division in
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accordance with this chapter.
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(6) "Chronic physical abuse" means repeated or patterned physical abuse.
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(7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent,
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guardian, or custodian to provide necessary care for a minor's safety, morals, or well-being.
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(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.
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[(5)] (9) "Custody," with regard to the division, means the custody of a child in the
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division as of the date of disposition.
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[(6)] (10) "Day-care services" means care of a child for a portion of the day which is less
249
than 24 hours, in his own home by a responsible person, or outside of his home in a day-care
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center, family group home, or family child care home.
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[(7)] (11) "Dependent child" or "dependency" means a child, or the condition of a child,
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who is homeless or without proper care through no fault of [his] the child's parent, guardian, or
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custodian.
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[(8)] (12) "Director" means the director of the Division of Child and Family Services.
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[(9)] (13) "Division" means the Division of Child and Family Services.
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[(10)] (14) (a) "Domestic violence services" means temporary shelter, treatment, and
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related services to persons who are victims of abuse and their dependent children and treatment
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services for domestic violence perpetrators.
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(b) As used in this Subsection [(10)] (14) "abuse" means the same as that term is defined
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in Section
30-6-1
, and "domestic violence perpetrator" means a person who is alleged to have
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committed, has been convicted of, or has pled guilty to an act of domestic violence as defined in
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Subsection
77-36-1
(2).
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[(11)] (15) "Homemaking service" means the care of individuals in their domiciles, and
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help given to individual caretaker relatives to achieve improved household and family management
265
through the services of a trained homemaker.
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S [
(16) "Household" means residing within the home of the minor whether or not related to
267
the minor.
] s
268
[(12)] S [
(17)
]
(16)
s "Minor" means a person under 18 years of age. "Minor" may also
include a
269
person under 21 years of age for whom the division has been specifically ordered by the juvenile
270
court to provide services.
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[(13)] S [
(18)
]
(17)
s "Natural parent" means a [child's] minor's biological or adoptive parent, and
272
includes a [child's] minor's noncustodial parent.
273
[(14)] S [
(19)
]
(18)
s (a) "Neglect" means:
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274
(i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
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Relinquishment of a Newborn Child;
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(ii) subjecting a child to mistreatment or abuse;
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(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian, or
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custodian;
279
(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
280
subsistence, education, or medical care, including surgery or psychiatric services when required,
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or any other care necessary for his health, safety, morals, or well-being; or
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(v) a child at risk of being neglected or abused because another child in the same home is
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neglected or abused.
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(b) The aspect of neglect relating to education, described in Subsection [(14)] S [
(19)
]
(18)
s
284a
(a)(iv),
285
means that, after receiving notice that a child has been frequently absent from school without good
286
cause, or that the child has failed to cooperate with school authorities in a reasonable manner, a
287
parent or guardian fails to make a good faith effort to ensure that the child receives an appropriate
288
education.
289
(c) A parent or guardian legitimately practicing religious beliefs and who, for that reason,
290
does not provide specified medical treatment for a child, is not guilty of neglect.
291
[(15)] S [
(20)
]
(19)
s "Protective custody," with regard to the division, means the shelter of a child
292
by the division from the time [he] the child is removed from [his] the child's home until the shelter
293
hearing, or [his] the child's return home, whichever occurs earlier.
294
[(16)] S [
(21)
]
(20)
s "Protective services" means expedited services that are provided:
295
(a) in response to evidence of neglect, abuse, or [exploitation] dependency of a minor;
296
(b) in an effort to substantiate evidence of neglect, abuse, or [exploitation] dependency;
297
(c) to a cohabitant who is neglecting or abusing a child, in order to help [him] the
298
cohabitant develop recognition of [his] the cohabitant's duty of care and of the causes of neglect
299
or abuse, and to strengthen [his] the cohabitant's ability to provide safe and acceptable care; and
300
(d) in cases where the child's welfare is endangered:
301
(i) to bring the situation to the attention of the appropriate juvenile court and law
302
enforcement agency;
303
(ii) to cause a protective order to be issued for the protection of the [child] minor, when
304
appropriate; and
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(iii) to protect the child from the circumstances that endanger [his] the child's welfare
306
including, when appropriate, removal from [his] the child's home, placement in substitute care, and
307
petitioning the court for termination of parental rights.
308
[(17)] S [
(22)
]
(21)
s "Services to unwed parents" means social, educational, and medical services
309
arranged for or provided to unwed parents to help them plan for themselves and the unborn child.
310
S [
(23)
]
(22)
s "Severe neglect" means neglect that causes or threatens to cause serious harm to a
311
minor.
312
[(18)] S [
(24)
]
(23)
s "Shelter care" means the temporary care of minors in nonsecure facilities.
313
[(19)] S [
(25)
]
(24)
s "State" means a state of the United States, the District of Columbia, the
314
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern
315
Mariana Islands, or a territory or possession administered by the United States.
316
S[
(26)
]
(25)
s "Severe emotional abuse" means emotional abuse that causes or threatens to cause
317
serious harm to a minor.
318
S[
(27)
]
(26)
s "Severe physical abuse" means physical abuse that causes or threatens to cause serious
319
harm to a minor.
320
[(20)] S [
(28)
]
(27)
s "State plan" means the written description of the programs for children, youth,
321
and family services administered by the division in accordance with federal law.
322
[(21)] S [
(29)
]
(28)
s "Status offender" means a minor who has been declared a runaway or
323
ungovernable.
324
S[
(30)
]
(29)
s "Substantiated" or "substantiation" means a judicial finding based on a preponderance
325
of the evidence that abuse or neglect occurred. Each allegation made or identified in a given case
326
shall be considered separately in determining whether there should be a finding of substantiated.
327
[(22)] S [
(31)
]
(30)
s "Substitute care" means:
328
(a) the placement of a minor in a family home, group care facility, or other placement
329
outside the minor's own home, either at the request of a parent or other responsible relative, or
330
upon court order, when it is determined that continuation of care in the child's own home would
331
be contrary to the child's welfare;
332
(b) services provided for a child awaiting placement; and
333
(c) the licensing and supervision of a substitute care facility.
334
S[
(32)
]
(31)
s "Supported" means a finding by the division based on the evidence available at the
335
completion of an investigation that there is a reasonable basis to conclude that abuse, neglect, or
336
dependency occurred. Each allegation made or identified during the course of the investigation
337
shall be considered separately in determining whether there should be a finding of supported.
338
[(23)] S [
(33)
]
(32)
s "Temporary custody," with regard to the division, means the custody of a child
339
in the division from the date of the shelter hearing until disposition.
340
[(24)] S [
(34)
]
(33)
s "Transportation services" means travel assistance given to an individual with
341
escort service, if necessary, to and from community facilities and resources as part of a service
342
plan.
343
S[
(35)
]
(34)
s "Unsubstantiated" means a judicial finding that there is insufficient evidence to
344
conclude that abuse or neglect occurred.
345
S [
(36)
]
(35)
s "Unsupported" means a finding at the completion of an investigation that there is
346
insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a finding
347
of unsupported means also that the division worker did not conclude that the allegation was
348
without merit.
349
S[
(37)
]
(36)
s "Without merit" means a finding at the completion of an investigation by the division,
350
or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or that the
351
alleged perpetrator was not responsible for the abuse, neglect, or dependency.
352
[(25)] S [
(38)
]
(37)
s "Youth services" means services provided to families in crisis when a minor
353
is ungovernable or runaway or where there is parent-child conflict, in an effort to resolve family
354
conflict, maintain or reunite minors with their families, and to divert minors from the juvenile
355
justice system. Those services may include crisis intervention, short-term shelter, time-out
356
placement, and family counseling.
357
Section 6.
Section
62A-4a-116
is amended to read:
358
62A-4a-116. Management Information System -- Requirements.
359
(1) The division shall develop and implement a Management Information System that
360
meets the requirements of this section and the requirements of federal law and regulation. The
361
information and records contained in the Management Information System are protected records
362
under Title 63, Chapter 2, Government Records Access and Management Act, and except for the
363
limited, specific, and narrow provisions relating to licensing, contained in Section
62A-4a-116.2
,
364
and those provisions relating to contract providers, described in Subsection (6), they are available
365
only to those with statutory authorization to review under that law. They are also available to those
366
who have a specific statutory authorization to access the record for the purpose of assisting the
367
state with state and federal requirements to maintain information solely for the purpose of
368
protecting minors and providing services to families in need.
369
(2) With regard to all child welfare cases, the Management Information System shall[: (a)]
370
provide each caseworker with a complete history of each child in [his] that worker's caseload,
371
including the following information:
372
[(i)] (a) a record of all past action taken by the division with regard to that child and [his]
373
the child's siblings[,];
374
(b) the complete case history and all reports and information in the control or keeping of
375
the division regarding that child and [his] the child's siblings;
376
[(ii)] (c) the number of times the child has been in [foster care] the custody of the division;
377
[(iii)] (d) the cumulative period of time the child has been in [foster care] the custody of
378
the division;
379
[(iv)] (e) a record of all reports of abuse or neglect received by the division with regard to
380
that child's parent, [or] parents, or guardian including documentation [regarding whether each
381
report was] of the latest status or the final outcome or determination regarding each report,
382
including whether each report was found to be supported, unsupported, substantiated by a juvenile
383
court, unsubstantiated by a juvenile court, or without merit;
384
[(v)] (f) the number of times the child's parent or parents have failed any treatment plan;
385
and
386
[(vi)] (g) the number of different caseworkers who have been assigned to that child in the
387
past[;].
388
(3) The division's Management Information System shall also:
389
[(b)] (a) contain all key elements of each family's current treatment plan, including the
390
dates and number of times the plan has been administratively or judicially reviewed, the number
391
of times the parent or parents have failed that treatment plan, and the exact length of time that
392
treatment plan has been in effect; and
393
[(c)] (b) alert caseworkers regarding deadlines for completion of and compliance with
394
policy, including treatment plans[;].
395
[(d) unless the executive director determines that there is good cause for keeping the report
396
on the system based on standards established by rule, delete any reference to:]
397
[(i) a report that is without merit if no subsequent report involving the same alleged
398
perpetrator has occurred within one year; or]
399
[(ii) a report that is unsubstantiated if no subsequent report involving the same alleged
400
perpetrator has occurred within five years; and]
401
[(e) maintain a separation of reports that are without merit in the system to identify the
402
cases apart from substantiated cases and, where necessary, provide restricted access to the without
403
merit cases.]
404
[(3)] (4) With regard to all child protective services cases, the Management Information
405
System shall[, in addition to the information required in Subsection (2),] also:
406
(a) monitor the compliance of each case with [the policy of the] division[, the laws of this]
407
rule and policy, state law, and federal law and regulation[.]; and
408
[(4)] (b) [With regard to all child welfare and protective services cases,] include the age
409
and date of birth of the alleged perpetrator[,] at the time the abuse or neglect is alleged to have
410
occurred[, shall be included in the management information system], in order to ensure accuracy
411
regarding the identification of the alleged perpetrator.
412
[(5) (a) The division shall develop and maintain a part of the information management
413
system for licensing purposes, which shall be:]
414
[(i) limited to:]
415
[(A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
416
an opportunity to challenge has been provided under Section
62A-4a-116.5
;]
417
[(B) the name of a person who was not sent a notice of agency action under Section
418
62A-4a-116.5
because his location was not available on the management information system or
419
who was sent a notice of agency action that was returned to the division as undelivered for the sole
420
purpose of alerting the division of the need to afford the person an opportunity to challenge the
421
finding of child abuse or neglect under Section
62A-4a-116.5
before any adverse action, beyond
422
delaying the person's licensing application to provide an opportunity for challenge, may be taken;]
423
[(C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
424
Subsection
62A-4a-116.5
(5) has been met; and]
425
[(D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
426
abuse of any person; and]
427
[(ii) accessible by:]
428
[(A) the Office of Licensing for licensing purposes only;]
429
[(B) the division:]
430
[(I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
431
created by Section
78-3a-912
, at the time the person seeks a paid or voluntary position with the
432
Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
433
and]
434
[(II) to respond to a request for information from the person who is identified as a
435
perpetrator in the report, after advising the person of the screening prohibition in Subsection
436
(4)(d)(iii);]
437
[(C) subject to the provisions of Subsection (5)(c), the Bureau of Health Facility Licensure
438
within the Department of Health only for the purpose of licensing a child care program or provider,
439
or for determining whether a person associated with a covered health care facility, as defined by
440
the Department of Health by rule, who provides direct care to a child has a substantiated finding
441
of child abuse or neglect; and]
442
[(D) the department as provided in Subsection (6) and Section
62A-1-118
.]
443
[(b) For the purpose of Subsection (5)(a), "substantiated":]
444
[(i) means a finding that there is a reasonable basis to conclude that:]
445
[(A) a person 18 years of age or older committed one or more of the following types of
446
child abuse or neglect:]
447
[(I) physical abuse;]
448
[(II) sexual abuse;]
449
[(III) sexual exploitation;]
450
[(IV) abandonment;]
451
[(V) medical neglect resulting in death, disability, or serious illness; or]
452
[(VI) chronic or severe neglect; and]
453
[(B) a person under the age of 18:]
454
[(I) caused serious physical injury, as defined in Subsection
76-5-109
(1)(d), to another
455
child which indicates a significant risk to other children; or]
456
[(II) engaged in sexual behavior with or upon another child which indicates a significant
457
risk to other children; and]
458
[(ii) does not include:]
459
[(A) the use of reasonable and necessary physical restraint or force by an educator in
460
accordance with Subsection
53A-11-802
(2) or Section
76-2-401
;]
461
[(B) a person's conduct that:]
462
[(I) is justified under Section
76-2-401
; or]
463
[(II) constituted the use of reasonable and necessary physical restraint or force in
464
self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
465
other dangerous object in the possession or under the control of a child or to protect the child or
466
another person from physical injury; or]
467
[(C) (I) failure to administer prescribed or recommended medication or to follow a course
468
of treatment prescribed or recommended by a health care provider as defined in Section 78-14-3,
469
if the division has not provided the legal guardian or parent notice of the opportunity to obtain, at
470
the parent's or guardian's expense, a physical examination of the minor by a health care
471
professional licensed under Title 58, Chapter 67, Utah Medical Practice Act, Chapter 68, Utah
472
Osteopathic Medical Practices Act, Chapter 70a, Physician Assistant Act, or licensed as an
473
advance practice registered nurse under Chapter 31b, Nurse Practices Act, to determine if the
474
course of treatment chosen by the legal guardian or parent is a medically acceptable alternative and
475
is in the best interest of the minor under the circumstances;]
476
[(II) Subsection (5)(b)(ii)(C)(I) does not apply in circumstances where a delay in the
477
prescribed or recommended medical treatment may result in death, permanent loss of a body
478
function, or significant physical or mental impairment of the minor; and]
479
[(III) for purposes of this Subsection (5)(b)(ii)(C), if the division has reason to believe that
480
an individual is making medical recommendations concerning the administration of medication,
481
and the individual is not licensed as a health care provider, as defined in Section
78-14-3
, the
482
division may report that individual to the appropriate licensing authority.]
483
[(iii) (A) For purposes of Subsection (5)(b)(i)(B), "significant risk" shall be determined
484
in accordance with risk assessment tools and policies established by the division that focus on age,
485
social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and other
486
related considerations.]
487
[(B) The division shall train its child protection workers to apply the risk assessment tools
488
and policies established under Subsection (5)(b)(iii)(A).]
489
[(c) (i) The Department of Health shall:]
490
[(A) designate two persons within the Department of Health to access the licensing part
491
of the management information system; and]
492
[(B) adopt measures to:]
493
[(I) protect the security of the licensing part of the management information system; and]
494
[(II) strictly limit access to the licensing part of the management information system to
495
those designated under Subsection (5)(c)(i)(A).]
496
[(ii) Those designated under Subsection (5)(c)(i)(A) shall receive training from the
497
department with respect to:]
498
[(A) accessing the licensing part of the management information system;]
499
[(B) maintaining strict security; and]
500
[(C) the criminal provisions in Section
62A-4a-412
for the improper release of
501
information.]
502
[(iii) Those designated under Subsection (5)(c)(i)(A):]
503
[(A) are the only ones in the Department of Health with the authority to access the
504
licensing part of the management information system; and]
505
[(B) may only access the licensing part of the management information system in
506
accordance with the provisions of Subsection (5)(a)(ii).]
507
[(iv) The Department of Health may obtain information in the possession of the division
508
that relates to a substantiated finding of abuse or neglect of a person screened under this
509
Subsection (5)(c).]
510
[(d) (i) Information in the licensing part of the management information system is
511
confidential and may only be used or disclosed as specifically provided in this section, Section
512
62A-2-121
, and Section
62A-4a-116.5
.]
513
[(ii) No person, unless listed in Subsection (5)(a)(ii), may request another person to obtain
514
or release a report or any other information in the possession of the division obtained as a result
515
of the report that is available under Subsection (5)(a)(ii)(A)(III) to screen for potential perpetrators
516
of child abuse or neglect.]
517
[(iii) A person who requests information knowing that it is a violation of Subsection
518
(5)(d)(ii) to do so is subject to the criminal penalty in Section
62A-4a-412
.]
519
[(6) All] (5) Except as provided in Subsection (6) regarding contract providers and
520
Section
62A-4a-116.2
regarding limited access to the Licensing Information System, all
521
information contained in the division's Management Information System [shall be] is available to
522
the department, upon the approval of the executive director, on a need-to-know basis.
523
[(7)] (6) (a) The division may allow its contract providers to have limited access to the
524
Management Information System. [ The division shall limit that] A division contract provider has
525
access only to information about persons who are currently receiving services from [the] that
526
specific contract provider.
527
(b) Each contract provider who requests access to information contained in the
528
Management Information System shall:
529
(i) take all necessary precautions to safeguard the security of the information contained in
530
the Management Information System;
531
(ii) train its employees regarding requirements for [confidentiality] protecting the
532
information contained in the Management Information System as required by this chapter and
533
under Title 63, Chapter 2, Government Records Access and Management Act, and the criminal
534
penalties under Sections
62A-4a-412
and
63-2-801
for improper release of information; and
535
(iii) monitor its employees to ensure that they [comply with the confidentiality
536
requirements related to the Management Information System] protect the information contained
537
in the Management Information System as required by law.
538
(c) The division shall take reasonable precautions to ensure that its contract providers [are
539
complying] comply with the requirements of this Subsection [(7)(b)] (6).
540
[(8)] (7) The division shall take all necessary precautions, including password protection
541
and other appropriate and available technological techniques, to prevent unauthorized access to
542
[the] or release of information contained in the Management Information System.
543
[(9) (a) The division shall send a certified letter to a person who submitted a report of child
544
abuse or neglect that is put onto any part of the management information system if the division
545
determines, at the conclusion of its investigation, that:]
546
[(i) the report is false;]
547
[(ii) it is more likely than not that the person knew that the report was false at the time the
548
person submitted the report; and]
549
[(iii) the person's address is known or reasonably available.]
550
[(b) The letter shall inform the person of:]
551
[(i) the determination made under Subsection (9)(a);]
552
[(ii) the penalty for submitting false information under Section 76-8-506 and other
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553
applicable laws;]
554
[(iii) the obligation of the division to inform law enforcement and the alleged perpetrator:]
555
[(A) in the present instance if an immediate referral is justified by the facts; or]
556
[(B) if the person submits a subsequent false report involving the same alleged perpetrator
557
or victim.]
558
[(c) (i) The division may inform law enforcement and the alleged perpetrator of a report
559
for which a letter is required to be sent under Subsection (9)(a) if an immediate referral is justified
560
by the facts.]
561
[(ii) The division shall inform law enforcement and the alleged perpetrator of a report for
562
which a letter is required to be sent under Subsection (9)(a) if this is the second letter sent to the
563
person involving the same alleged perpetrator or victim.]
564
[(iii) The division shall determine, in consultation with law enforcement:]
565
[(A) the information to be given to an alleged perpetrator about a false claim; and]
566
[(B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
567
about a false claim.]
568
[(d) Nothing in this Subsection (9) may be construed as requiring the division to conduct
569
an investigation, beyond what is required in Subsection (9)(a), to determine whether or not a report
570
is false.]
571
Section 7.
Section
62A-4a-116.1
is enacted to read:
572
62A-4a-116.1. Referral to court -- Notice of severe types of abuse or neglect.
573
(1) If the division makes a supported finding of one or more of the severe types of child
574
abuse or neglect described in Subsection (2) S
,
s the division shall:
575
(a) enter into the Licensing Information System created in Section
62A-4a-116.2
the name
576
and other identifying information of the perpetrator with the supported finding, without identifying
577
the person as a perpetrator or alleged perpetrator, and a notation to the effect that an investigation
578
regarding the person is pending; and
579
S [
(b) (i) if the alleged perpetrator is a minor or is not a member of the alleged victim's
580
household, cause the notice described in Subsection S [(7)]
(5)
s to be served on the alleged
580a
perpetrator; or
581
(ii) if the alleged perpetrator is not one described in Subsection (1)(b)(i), file a petition
582
with the juvenile court S [a petition] s under Section
78-3a-305
regarding the supported finding of
582a
abuse
583
or neglect.]
(b)(i) IF THE DIVISION CONSIDERS IT ADVISABLE, FILE A PETITION WITH THE JUVENILE
583a
COURT UNDER SECTION 78-3a-305 REGARDING THE SUPPORTED FINDING OF ABUSE OR
583b
NEGLECT; OR
583c
(ii) IF THE DIVISION DOES NOT FILE A PETITION UNDER SUBSECTION (1)(b)(i), CAUSE THE
583d
NOTICE DESCRIBED IN SUBSECTION (5) TO BE SERVED ON THE ALLEGED PERPETRATOR.
s
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584
(2) Except as otherwise provided in Subsection (3), the severe types of child abuse or
585
neglect referred to in Subsection (1) are as follows:
586
(a) if committed by a person 18 years of age or older:
587
(i) severe or chronic physical abuse;
588
(ii) sexual abuse;
589
(iii) sexual exploitation;
590
(iv) abandonment;
591
(v) medical neglect resulting in death, disability, or serious illness;
592
(vi) chronic or severe neglect; or
593
(vii) chronic or severe emotional abuse; or
594
(b) if committed by a person under the age of 18:
595
(i) serious physical injury, as defined in Subsection
76-5-109
(1)(d), to another child which
596
indicates a significant risk to other children; or
597
(ii) sexual behavior with or upon another child which indicates a significant risk to other
598
children.
599
(3) Severe child abuse or neglect in Subsection (2) does not include:
600
(a) the use of reasonable and necessary physical restraint or force by an educator in
601
accordance with Subsection
53A-11-802
(2) or Section
76-2-401
; or
602
(b) a person's conduct that:
603
(i) is justified under Section
76-2-401
; or
604
(ii) constitutes the use of reasonable and necessary physical restraint or force in
605
self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
606
other dangerous object in the possession or under the control of a child or to protect the child or
607
another person from physical injury.
608
(4) (a) For purposes of Subsection (2)(b), "significant risk" shall be determined in
609
accordance with risk assessment tools and policies established by the division that focus on age,
610
social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and other
611
related considerations.
612
(b) The division shall train its child protection workers to apply the risk assessment tools
613
and policies established under Subsection (4)(a).
614
(5) The notice referred to in Subsection (1)(b) h [
(i)
]
(ii)
h shall state that:
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House Floor Amendments 3-6-2002 kj/pwh
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Senate 2nd Reading Amendments 2-7-2002 sm/pwh
615
(a) the division has conducted an investigation regarding alleged child abuse or neglect;
616
(b) the division has S [
make
]
MADE
s a supported finding of one of the severe types of child
616a
abuse or
617
neglect described in Subsection (2);
618
(c) facts gathered by the division support the supported finding;
619
(d) as a result of the supported finding, the alleged perpetrator's name and other identifying
620
information have been listed in the Licensing Information System in accordance with Subsection
621
(1)(a);
622
(e) the alleged perpetrator may be disqualified from adopting a child or being licensed by:
623
(i) the department;
624
(ii) a human services licensee;
625
(iii) a child care provider or program; and
626
(iv) a covered health care facility;
627
(f) the alleged perpetrator has the rights described in Subsection (6); and
628
(g) failure to take either action described in Subsection (6)(a) within h [
three years
]
ONE
628a
YEAR
h after
629
service of the notice will result in the action described in Subsection (6)(b).
630
(6) (a) Upon receipt of the notice described in Subsection (5), the alleged perpetrator shall
631
have the right to:
632
(i) petition the juvenile court to hold an evidentiary hearing to determine whether the
633
alleged perpetrator's name and other information related to the alleged incident of abuse or neglect
634
should be removed from the Licensing Information System; or
635
(ii) sign a written consent to the supported finding and entry of the alleged perpetrator's
636
name and other information regarding the supported finding of abuse or neglect into the Licensing
637
Information System.
638
(b) If the alleged perpetrator fails to take either action described in Subsection (6)(a) within
639
S [
three years
]
ONE YEAR
s after service of the notice described in Subsection (5), the alleged
639a
perpetrator's name
640
and the notation described in Subsection (1)(a) shall remain in the Licensing Information System.
641
This information shall also remain in the Licensing Information System while the division awaits
642
a response from the alleged perpetrator pursuant to Subsection (6)(a) and during the pendency of
643
any proceeding, including an appeal of a finding of unsubstantiated or without merit, under Section
644
78-3a-320
.
645
(c) The alleged perpetrator shall have no right to petition the juvenile court under
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646
Subsection (6)(b) if the court has previously held a hearing on the same alleged incident of abuse
647
or neglect pursuant to the filing of a petition under Section
78-3a-305
by some other party.
647a
S
(d) CONSENT UNDER SUBSECTION (6)(a)(ii) BY A MINOR SHALL BE GIVEN BY THE MINOR'S
647b
PARENT OR GUARDIAN.
s
648
(7) Upon the filing of a petition under Subsection (1)(b) S [
(ii)
]
(i)
s , the juvenile court shall make
649
a finding of substantiated, unsubstantiated, or without merit as provided in Subsections
650
78-3a-320
(1) and (2).
651
(8) Service of the notice under S [
Subsection
]
SUBSECTIONS
s (1)(b) S [
(i)
]
(ii)
AND (5)
s :
652
(a) shall be personal service in accordance with Rule 4 of the Utah Rules of Civil
653
Procedure; and
654
(b) does not preclude civil or criminal action against the alleged perpetrator.
655
Section 8.
Section
62A-4a-116.2
is enacted to read:
656
62A-4a-116.2. Licensing Information System.
657
(1) The division shall maintain a sub-part of the Management Information System
658
established pursuant to Section
62A-4a-116
, to be known as the Licensing Information System,
659
to be used solely for licensing purposes. The Licensing Information System shall include only the
660
following information:
661
(a) the information described in Subsections
62A-4a-116.1
(1)(a) and (6)(b);
662
(b) consented-to supported findings by alleged perpetrators under Subsection
663
62A-4a-116.1
(6)(a)(ii); and
664
(c) the information in the licensing part of the division's Management Information System
665
as of May 6, 2002.
666
(2) The division shall promptly remove from the Licensing Information System all
667
information with respect to a finding upon receipt of notice that a juvenile court has made a finding
668
under Section
78-3a-320
. However, if a juvenile court finding of unsubstantiated or without merit
669
is appealed S
,
s the information shall remain in the Licensing Information System until the appeal is
670
concluded.
671
(3) Information contained in the Licensing Information System is classified as a protected
672
record under Title 63, Chapter 2, Government Records Access and Management Act.
673
Notwithstanding the disclosure provisions of Title 63, Chapter 2, Government Records Access and
674
Management Act, the information contained in the Licensing Information System may only be
675
used or disclosed as specifically provided in this chapter and Section
62A-2-121
and is accessible
676
only to:
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677
(a) the Office of Licensing within the department, for licensing purposes only;
678
(b) the division, for the following purposes:
679
(i) to screen a person at the request of the Office of the Guardian Ad Litem Director, at the
680
time that person seeks a paid or voluntary position with the Office of the Guardian Ad Litem
681
Director and each year thereafter that the person remains with that office; and
682
(ii) to respond to a request for information from a person whose name is listed in the
683
Licensing Information System;
684
(c) two persons designated by and within the Department of Health, only for the following
685
purposes:
686
(i) licensing a child care program or provider; or
687
(ii) determining whether a person associated with a covered health care facility, as defined
688
by the Department of Health by rule, who provides direct care to a child, has a supported finding
689
of severe child abuse or neglect; and
690
(d) the department, as specifically provided in this chapter.
691
(4) The two persons designated by the Department of Health under Subsection (3)(c) shall
692
adopt measures to:
693
(a) protect the security of the Licensing Information System; and
694
(b) strictly limit access to the Licensing Information System to those persons designated
695
by statute.
696
(5) All persons designated by statute as having access to information contained in the
697
Licensing Information System shall receive training from the department with respect to:
698
(a) accessing the Licensing Information System;
699
(b) maintaining strict security; and
700
(c) the criminal provisions of S [
Section
]
SECTIONS
s
62A-4a-412
and S [
Section
] s
700a
63-2-801
pertaining to the
701
improper release of information.
702
(6) No person, except those authorized by this chapter, may request another person to
703
obtain or release any other information in the Licensing Information System to screen for potential
704
perpetrators of child abuse or neglect. A person who requests information knowing that it is a
705
violation of this S [
subsection
]
SUBSECTION (6)
s to do so is subject to the criminal penalty
705a
described in S [
Section
]
SECTIONS
s
706
62A-4a-412
and S [
Section
] s
63-2-801
.
707
Section 9.
Section
62A-4a-116.3
is enacted to read:
708
62A-4a-116.3. False reports -- Penalties.
709
(1) The division shall send a certified letter to any person who submits a report of child
710
abuse or neglect that is placed into or included in any part of the Management Information System,
711
if the division determines, at the conclusion of its investigation, that:
712
(a) the report is false;
713
(b) it is more likely than not that the person knew the report was false at the time that
714
person submitted the report; and
715
(c) the reporting person's address is known or reasonably available.
716
(2) The letter shall inform the reporting person of:
717
(a) the division's determination made under Subsection (1);
718
(b) the penalty for submitting false information under Section
76-8-506
and other
719
applicable laws; and
720
(c) the obligation of the division to inform law enforcement and the person alleged to have
721
committed abuse or neglect:
722
(i) in the present instance if law enforcement considers an immediate referral of the
723
reporting person to law enforcement to be justified by the facts; or
724
(ii) if the reporting person submits a subsequent false report involving the same alleged
725
perpetrator or victim.
726
(3) The division may inform law enforcement and the alleged perpetrator of a report for
727
which a letter is required to be sent under Subsection (1), if an immediate referral is justified by
728
the facts.
729
(4) The division shall inform law enforcement and the alleged perpetrator of a report for
730
which a letter is required to be sent under Subsection (1) if a second letter is sent to the reporting
731
person involving the same alleged perpetrator or victim.
732
(5) The division shall determine, in consultation with law enforcement:
733
(a) what information should be given to an alleged perpetrator relating to a false report;
734
and
735
(b) whether good cause exists, as defined by the division by rule, for not informing an
736
alleged perpetrator about a false report.
737
(6) Nothing in this section may be construed as requiring the division to conduct an
738
investigation beyond what is described in Subsection (1), to determine whether or not a report is
739
false.
740
Section 10.
Section
62A-4a-116.4
is enacted to read:
741
62A-4a-116.4. Timeframes for deletion of specified information or reports.
742
(1) Unless the executive director determines that there is good cause for keeping a report
743
of abuse or neglect in the Management Information System, based on standards established by rule,
744
the division shall delete any reference to:
745
(a) a report that is without merit, if no subsequent report involving the same alleged
746
perpetrator has occurred within one year; or
747
(b) a report that has been determined by a court of competent jurisdiction to be
748
unsubstantiated or without merit, if no subsequent report involving the same alleged perpetrator
749
has occurred within five years.
750
(2) (a) The division shall maintain a separation of reports as follows:
751
(i) those that are supported;
752
(ii) those that are unsupported;
753
(iii) those that are without merit;
754
(iv) those that are unsubstantiated under the law in effect prior to May 6, 2002;
755
(v) those that are substantiated under the law in effect prior to May 6, 2002; and
756
(vi) those that are consented-to supported findings under Subsection
757
62A-4a-116.1
(6)(a)(ii).
758
(b) Only persons with statutory authority have access to information contained in any of
759
the reports identified in Subsection (2)(a).
760
Section 11.
Section
62A-4a-116.5
is amended to read:
761
62A-4a-116.5. Notice and opportunity to challenge supported finding in
762
Management Information System.
763
(1) (a) [The] Except as provided in Subsection (2), the division shall send a notice of
764
agency action to a person [if] with respect to whom the division [finds, at the conclusion of an
765
investigation, that, in the opinion of the division, there is a reasonable basis to conclude that the
766
person committed abuse or neglect listed in Subsection
62A-4a-116
(5)(b)(i). In the event that the
767
person] makes a supported finding. In addition, if the alleged perpetrator is under the age of 18,
768
the division shall:
769
(i) make reasonable efforts to identify the [person's] alleged perpetrator's parent or [legal]
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770
guardian; and
771
(ii) send a notice to each parent or [legal] guardian identified under Subsection (1)(a)(i)
772
that lives at a different address, unless there is good cause, as defined by rule, for not sending a
773
notice to a parent or [legal] guardian.
774
[(b) For purposes of this section only, which governs the right of a person to challenge the
775
division's initial finding or opinion of abuse or neglect as it pertains to the licensing part of the
776
management information system, the division shall refer to a finding under Subsection (1)(a) as
777
a "finding" or an "initial finding" of abuse or neglect when notifying or explaining a notification
778
to a person.]
779
[(c)] (b) Nothing in this section may be construed as affecting:
780
(i) the manner in which the division conducts an investigation; or
781
(ii) the use or effect, in any other setting, of[: (A) an initial division finding or
782
substantiation of child abuse or neglect] a supported finding by the division at the completion of
783
an investigation for any purpose other than for notification under Subsection (1)(b)[; or].
784
[(B) the term "substantiated" as used in any other provision of the code.]
785
(2) Subsection (1) does not apply to a person who has been served with notice under
786
Subsection
62A-4a-116.1
(1)(b) S [
(i)
]
(ii)
s .
787
[(2)] (3) The notice described in Subsection (1) shall state:
788
(a) that the division has conducted an investigation regarding alleged child abuse, neglect,
789
or dependency;
790
(b) that the division [found, at the conclusion of the investigation, that there was, in the
791
opinion of the division, a reasonable basis to conclude that] has made a supported finding of abuse
792
[or], neglect [occurred], or dependency;
793
(c) [the] that facts [that] gathered by the division support the supported finding;
794
[(d) that the person may be disqualified from adopting a child or working for or being
795
licensed by:]
796
[(i) the department;]
797
[(ii) a human services licensee;]
798
[(iii) a child care provider or program; and]
799
[(iv) a covered health care facility;]
800
[(e)] (d) that the person has the right to request:
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801
(i) a copy of the report; and
802
(ii) an opportunity to challenge the [finding and its inclusion on the licensing part of the
803
management information system described in Subsection
62A-4a-116
(5), except as provided in
804
Subsection (5)(b); and] supported finding by the division; and
805
[(f)] (e) that failure to request an opportunity to challenge the supported finding within 30
806
days of receiving the notice [being received] will result in an unappealable supported finding [of
807
substantiation] of child abuse [or], neglect, or dependency unless the person can show good cause
808
for why compliance within the 30-day requirement was virtually impossible or unreasonably
809
burdensome.
810
[(3)] (4) (a) A person may make a request to challenge a supported finding within 30 days
811
of[: (i)] a notice being received under [Subsection (2);] this section.
812
[(ii) a finding by a court of competent jurisdiction based on the same underlying facts
813
that:]
814
[(A) child abuse or neglect, as described in Subsection
62A-4a-116
(5)(b), did not occur;
815
or]
816
[(B) the person was not responsible for the child abuse or neglect that did occur; or]
817
[(iii) the dismissal of criminal charges or a verdict of not guilty based on the same
818
underlying facts.]
819
[(b) The 30-day requirement of Subsection (3)(a) shall be extended for good cause shown
820
that compliance was virtually impossible or unreasonably burdensome.]
821
[(c) The division may approve or deny a request made under Subsection (3)(a).]
822
[(d)] (b) [If the division denies the request or fails to act within 30 days after receiving a
823
request submitted under] Upon receipt of a request under Subsection S [
(3)
]
(4)
s (a), the Office of
824
Administrative Hearings shall hold an adjudicative proceeding pursuant to Title 63, Chapter 46b,
825
Administrative Procedures Act.
826
[(4)] (5) (a) In an adjudicative proceeding held pursuant to [Subsection (3)(d)] this section,
827
the division shall [prove] have the burden of proving, by a preponderance of the evidence, that
828
there is a reasonable basis to conclude that[:(i)] child abuse [or], neglect, [as described in
829
Subsection
62A-4a-116
(5)(b), occurred; and (ii) the person] or dependency occurred and that the
830
alleged perpetrator was substantially responsible for the abuse or neglect that occurred.
831
[(b) The administrative hearing officer may make a determination of substantiation based
832
solely on the out-of-court statement of the child that the officer finds to be reliable under the
833
standards set forth in:]
834
[(i) Section
76-5-411
;]
835
[(ii) Utah Rules of Criminal Procedure, Rule 15.5;]
836
[(iii) Section
78-3a-116
(5);]
837
[(iv) the Utah Rules of Evidence; or]
838
[(v) Utah case law.]
839
(b) Any party shall have the right of judicial review of final agency action, in accordance
840
with Title 63, Chapter 46b, Administrative Procedures Act.
841
[(5) (a) Except as provided in Subsection (5)(b), a person may not make a request to
842
challenge a finding under Subsection (3)(a), if, at any time, a court of competent jurisdiction has
843
made a determination based on the same underlying facts that:]
844
[(i) child abuse or neglect, as described in Subsection
62A-4a-116
(5)(b), occurred;]
845
[(ii) the person was substantially responsible for the abuse or neglect that occurred; and]
846
[(iii) the person:]
847
[(A) was a party to the proceeding; or]
848
[(B) (I) had notice of the proceeding; and]
849
[(II) was provided a meaningful opportunity to challenge the facts underlying the court's
850
determination.]
851
[(b) The division shall remove a person's name from the database unless the division
852
provides new notice under Subsection (1)(a) and an opportunity to be heard under Subsection
853
(3)(a) when the court of competent jurisdiction:]
854
[(i) enters a finding of not guilty;]
855
[(ii) dismisses the information or indictment after compliance with the requirements of a
856
diversion agreement under Section
77-2-6
; or]
857
[(iii) dismisses the case or withdraws a plea under Section
77-2a-3
after the completion
858
of a plea in abeyance agreement following a plea of no contest.]
859
[(c) An adjudicative proceeding held pursuant to Subsection (4) may be stayed during the
860
time a judicial action is pending.]
861
[(6) Nothing in this section may affect the inclusion or exclusion of a report or finding of
862
child abuse or neglect from or access by the division, its caseworkers, and child protective services
Text Box
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863
workers to that part of the Management Information System used for purposes of child welfare
864
cases and child protective services as described in Subsections
62A-4a-116
(2) and (3).]
865
[(7) By December 31, 1998, the division shall provide notice to each person with a finding
866
of abuse or neglect since January 1, 1994.]
867
[(8) A person who, after receiving notice, fails to challenge a finding of child abuse or
868
neglect may request the opportunity to challenge the finding under this section:]
869
[(a) if since the time that the person received notice, state law has been amended to permit
870
a broader use of or access to information on the licensing part of the Management Information
871
System; and]
872
[(b) before the finding may be used against the person in connection with the broader use
873
or access.]
874
(6) Except as otherwise provided in this chapter, an alleged perpetrator who, after
875
receiving notice, fails to challenge a supported finding in accordance with this section, may not
876
further challenge the finding and shall have no right to agency review or to an adjudicative hearing
877
or judicial review of the finding.
877a
S
(7)(a) AN ALLEGED PERPETRATOR MAY NOT MAKE A REQUEST UNDER SUBSECTION (4) TO
877b
CHALLENGE A SUPPORTED FINDING IF A COURT OF COMPETENT JURISDICTION HAS MADE A
877c
DETERMINATION, IN A PROCEEDING IN WHICH THE ALLEGED PERPETRATOR WAS A PARTY, THAT
877d
THE ALLEGED PERPETRATOR IS SUBSTANTIALLY RESPONSIBLE FOR THE ABUSE, NEGLECT, OR
877e
DEPENDENCY WHICH WAS ALSO THE SUBJECT OF THE SUPPORTED FINDING.
877f
(b) AN ADJUDICATIVE PROCEEDING UNDER SUBSECTION (5) MAY BE STAYED DURING THE
877g
TIME A JUDICIAL ACTION ON THE SAME MATTER IS PENDING.
s
878
Section 12.
Section
62A-4a-116.6
is enacted to read:
879
62A-4a-116.6. Notice and opportunity for court hearing for persons listed in
880
Licensing Information System.
881
(1) The division shall send a notice described in Subsection (2) to each person whose name
882
is on the Licensing Information System as of May 6, 2002 but who has not been the subject of any
883
of the following court determinations with respect to the alleged incident of abuse or neglect:
884
(a) conviction;
885
(b) adjudication under Title 78, Chapter 3a, Juvenile Courts;
886
(c) plea of guilty;
887
(d) plea of guilty and mentally ill; or
888
(e) no contest.
889
(2) The notice described in Subsection (1) shall advise the person:
890
(a) that the person has the right to request a hearing in the juvenile court; and
Text Box
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891
(b) of the procedures to be followed in petitioning for a hearing.
892
(3) The juvenile court shall act on the petition as provided in Subsection
78-3a-320
(3).
893
(4) After the division receives notice that the juvenile court has made a finding under
894
Section
78-3a-320
, the division shall promptly remove from the Licensing Information System all
895
information with respect to the alleged incident of abuse or neglect which was the subject of the
896
court determination. However, if a finding of unsubstantiated or without merit is appealed, the
897
information shall remain in the Licensing Information System until the appeals process is
898
concluded.
899
Section 13.
Section
62A-4a-202.7
is amended to read:
900
62A-4a-202.7. Pilot program for differentiated responses to child abuse and neglect
901
reports.
902
(1) (a) Before July 1, 2000, the executive director shall select no less than one and no more
903
than three regions within the division to establish a pilot program that complies with the provisions
904
of this section.
905
(b) After July 1, 2001, the executive director may add one region, in addition to those
906
selected under Subsection (1)(a), to the pilot program every four months.
907
(2) This section shall be repealed in accordance with Section
63-55-262
.
908
(3) (a) This section applies only to:
909
(i) those regions that have been selected under Subsection (1) to participate in this pilot
910
program; and
911
(ii) the response of the division to reports of child abuse or neglect in the participating
912
regions.
913
(b) Except as provided in Subsection (3)(a), nothing in this section may be construed as:
914
(i) superceding or otherwise altering the provisions of this chapter or Title 78, Chapter 3a,
915
Part 3, Abuse, Neglect, and Dependency Proceedings; or
916
(ii) as restricting the ability of the division to provide services, remove the child, or
917
otherwise proceed in accordance with this chapter and Title 78, Chapter 3a, Part 3, Abuse, Neglect,
918
and Dependency Hearings.
919
(4) Within each region selected, the division shall establish a process that classifies reports
920
of child abuse and neglect into one of the following three categories:
921
(a) accepted for an investigation;
922
(b) accepted for a family assessment; and
923
(c) not accepted.
924
(5) The division may only initiate contact with a family member in connection with a
925
report if the report has been officially accepted by the division for investigation or family
926
assessment in accordance with this section.
927
(6) (a) Except as provided in Subsection (7), a report shall be accepted for an investigation
928
if:
929
(i) required by Section
62A-4a-409
; or
930
(ii) three prior reports involving the same family have been accepted by the division for
931
either an investigation or a family assessment.
932
(b) Except as provided in Subsection (6)(c), the division shall conduct an investigation of
933
a report accepted pursuant to Subsection (6)(a) in accordance with Section
62A-4a-409
.
934
(c) The division may refer a case for a family assessment if at any time during the
935
investigation, the division determines that:
936
(i) the case is limited to a form of abuse or neglect listed in Subsection (7); or
937
(ii) (A) the harm to the child is minor; and
938
(B) the family indicates a willingness to participate in a family assessment.
939
(d) The division shall conduct an investigation anytime that it receives a report accepted
940
for investigation under this Subsection (6), even if:
941
(i) the report also includes allegations that would qualify for a family assessment under
942
Subsection (7); or
943
(ii) a second report is received before the investigation has occurred that would qualify for
944
a family assessment under Subsection (7).
945
(7) A report shall be accepted for a family assessment if there is a reasonable basis to
946
suspect that:
947
(a) the child is ungovernable; or
948
(b) one or more of the following has occurred:
949
(i) neglect involving a verbal child who is six years of age or older that is not serious or
950
chronic;
951
(ii) lack of proper supervision of a child;
952
(iii) domestic violence outside of a child's presence;
953
(iv) the receipt of three unaccepted reports involving the same family;
954
(v) a parent and child conflict indicating a significant breakdown in the parent-child
955
relationship and the need for direct intervention to prevent a foreseeable risk of violence or abuse;
956
or
957
(vi) educational neglect.
958
(8) The purpose of a family assessment is to:
959
(a) ensure that the child is safe;
960
(b) seek the cooperation of the family in learning about and participating in state and
961
community services; and
962
(c) determine with the family whether the family could benefit from division or community
963
services in view of the specific strengths, challenges, available resources, and needs of the family.
964
(9) (a) The division shall visit the child's home within three working days to begin a family
965
assessment for a report accepted pursuant to Subsection (7).
966
(b) In accordance with Subsection (8), the division shall seek the cooperation of the family
967
in participating in a family assessment.
968
(c) If the family declines to participate in a family assessment at the initial point of contact,
969
the division shall, by virtue of the fact that a report was accepted pursuant to Subsection (7):
970
(i) complete the family assessment components provided in Subsection (10); and
971
(ii) initiate an investigation if there is evidence of abuse or neglect for which an
972
investigation is required under Subsection (6).
973
(10) A family assessment shall consist of the following components:
974
(a) an analysis of the circumstances resulting in the report;
975
(b) a risk assessment designed to ensure the child's safety;
976
(c) a thorough review of the division's records of prior involvement with the family; and
977
(d) speaking face-to-face with the child, which may be conducted outside of the presence
978
of others if the division believes that it is necessary and appropriate under the circumstances.
979
(11) (a) A family assessment may include additional information from the family as may
980
be needed and that the family is willing to provide to better understand the family's strengths,
981
challenges, available resources, and needs.
982
(b) In requesting information under Subsection (11)(a), the division shall explain to the
983
family how it intends to use the information it collects.
984
(c) In performing a family assessment, the division shall inform the family orally or in
985
writing before the division contacts persons who are not immediate family members.
986
(12) (a) The division shall initiate an investigation if it determines during the course of a
987
family assessment that an investigation is required under Subsection (6).
988
(b) A family assessment may be discontinued if after completing the family assessment
989
components the division determines that:
990
(i) the circumstances do not warrant further involvement; or
991
(ii) the family requests the discontinuation of the assessment.
992
(13) The division may perform a family assessment for a family that requests one, even
993
if a report has not been accepted for a family assessment.
994
(14) A family assessment shall be completed within 30 days of the initial contact with the
995
family.
996
(15) (a) With respect to information acquired from a family assessment, the division may
997
only record the family assessment components described in Subsection (10) onto the Management
998
Information System described in [Subsection] Section
62A-4a-116
[(2)].
999
(b) Nothing in Subsection (15)(a) may be construed as limiting the information that may
1000
be recorded onto the management information system as a result of:
1001
(i) a report of child abuse or neglect;
1002
(ii) an investigation;
1003
(iii) division services provided to the family; or
1004
(iv) any other division involvement with the family apart from the family assessment.
1005
(16) All references to a report accepted for a family assessment shall be deleted from the
1006
management information system after five years unless:
1007
(a) the executive director determines that there is good cause for keeping the report on the
1008
management information system based on standards established by rule; or
1009
(b) a subsequent report involving the same alleged initiator has occurred within that
1010
five-year period.
1011
(17) In connection with this pilot program, the division shall:
1012
(a) standardize the key elements of the program;
1013
(b) adequately train division employees to:
1014
(i) process and classify incoming reports;
1015
(ii) perform family assessments; and
1016
(iii) conduct investigations;
1017
(c) work within the FACT initiative to identify community partnerships to facilitate
1018
delivery of services based on family assessments;
1019
(d) establish quality assurance panels to review no less than twice each month the
1020
appropriateness of classifying reports as unaccepted;
1021
(e) consider the feasibility and, if appropriate, implementation of a system that:
1022
(i) directs incoming reports of child abuse and neglect to a central location; and
1023
(ii) sends reports from the central location to the appropriate regional offices for a
1024
determination of whether, applying the provisions of this section, a particular report should be
1025
accepted for investigation, accepted for a family assessment, or not accepted;
1026
(f) contract before July 1, 2001, with an independent entity pursuant to Title 63, Chapter
1027
56, Utah Procurement Code, to evaluate the outcomes of the pilot program with respect to:
1028
(i) the safety of children;
1029
(ii) the needs and perspectives of families;
1030
(iii) the recurrence of child abuse and neglect;
1031
(iv) the perspectives of child welfare and community partners;
1032
(v) the perspectives of division employees; and
1033
(vi) other areas identified by the division;
1034
(g) send a copy of any written report by the independent evaluator to the Child Welfare
1035
Legislative Oversight Panel within 30 days of receipt; and
1036
(h) send a written report to the Child Welfare Legislative Oversight Panel 30 days before
1037
a region is added to the pilot program pursuant to Subsection (1)(b), identifying:
1038
(i) the overall status of the pilot program; and
1039
(ii) the reasons supporting the executive director's decision to expand the pilot program
1040
to the region selected.
1041
Section 14.
Section
62A-4a-412
is amended to read:
1042
62A-4a-412. Reports and information confidential.
1043
(1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well
1044
as any other information in the possession of the division obtained as the result of a report [is
1045
confidential and] are private, protected, or controlled records under Title 63, Chapter 2,
1046
Government Records Access and Management Act, and may only be made available to:
1047
(a) a police or law enforcement agency investigating a report of known or suspected child
1048
abuse or neglect;
1049
(b) a physician who reasonably believes that a child may be the subject of abuse or neglect;
1050
(c) an agency that has responsibility or authority to care for, treat, or supervise a child who
1051
is the subject of a report;
1052
(d) a contract provider that has a written contract with the division to render services to
1053
a child who is the subject of a report;
1054
(e) any subject of the report, the natural parents of the minor, and the guardian ad litem;
1055
(f) a court, upon a finding that access to the records may be necessary for the determination
1056
of an issue before it, provided that in a divorce, custody, or related proceeding between private
1057
parties, the record alone is:
1058
(i) limited to objective or undisputed facts that were verified at the time of the
1059
investigation; and
1060
(ii) devoid of conclusions drawn by the division or any of its workers on the ultimate issue
1061
of whether or not a person's acts or omissions constituted any level of abuse or neglect of another
1062
person;
1063
(g) an office of the public prosecutor or its deputies in performing an official duty;
1064
(h) a person authorized by a Children's Justice Center, for the purposes described in
1065
Section
67-5b-102
;
1066
(i) a person engaged in bona fide research, when approved by the director of the division,
1067
if the information does not include names and addresses;
1068
(j) the State Office of Education, acting on behalf of itself or on behalf of a school district,
1069
for the purpose of evaluating whether an individual should be permitted to obtain or retain a
1070
license as an educator or serve as an employee or volunteer in a school, limited to information with
1071
substantiated findings involving an alleged sexual offense, an alleged felony or class A
1072
misdemeanor drug offense, or any alleged offense against the person under Title 76, Chapter 5,
1073
Offenses Against the Person, and with the understanding that the office must provide the subject
1074
of a report received under Subsection (1)(k) with an opportunity to respond to the report before
1075
making a decision concerning licensure or employment; and
1076
(k) any person identified in the report as a perpetrator or possible perpetrator of child abuse
1077
or neglect, after being advised of the screening prohibition in Subsection (2).
1078
(2) (a) No person, unless listed in Subsection (1), may request another person to obtain or
1079
release a report or any other information in the possession of the division obtained as a result of
1080
the report that is available under Subsection (1)(k) to screen for potential perpetrators of child
1081
abuse or neglect.
1082
(b) A person who requests information knowing that it is a violation of Subsection (2)(a)
1083
to do so is subject to the criminal penalty in Subsection (4).
1084
(3) Except as provided in [Subsection
62A-4a-116
(9)(c)] Section
62A-4a-116.3
, the
1085
division and law enforcement officials shall ensure the anonymity of the person or persons making
1086
the initial report and any others involved in its subsequent investigation.
1087
(4) Any person who wilfully permits, or aides and abets the release of data or information
1088
obtained as a result of this part, in the possession of the division or contained on any part of the
1089
Management Information System, in violation of this part or [Section] Sections
62A-4a-116
1090
through
62A-4a-116.3
, is guilty of a class C misdemeanor.
1091
(5) The physician-patient privilege is not a ground for excluding evidence regarding a
1092
child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
1093
good faith pursuant to this part.
1094
Section 15.
Section
63-2-304
is amended to read:
1095
63-2-304. Protected records.
1096
The following records are protected if properly classified by a governmental entity:
1097
(1) trade secrets as defined in Section
13-24-2
if the person submitting the trade secret has
1098
provided the governmental entity with the information specified in Section
63-2-308
;
1099
(2) commercial information or nonindividual financial information obtained from a person
1100
if:
1101
(a) disclosure of the information could reasonably be expected to result in unfair
1102
competitive injury to the person submitting the information or would impair the ability of the
1103
governmental entity to obtain necessary information in the future;
1104
(b) the person submitting the information has a greater interest in prohibiting access than
1105
the public in obtaining access; and
1106
(c) the person submitting the information has provided the governmental entity with the
1107
information specified in Section
63-2-308
;
1108
(3) commercial or financial information acquired or prepared by a governmental entity to
1109
the extent that disclosure would lead to financial speculations in currencies, securities, or
1110
commodities that will interfere with a planned transaction by the governmental entity or cause
1111
substantial financial injury to the governmental entity or state economy;
1112
(4) records the disclosure of which could cause commercial injury to, or confer a
1113
competitive advantage upon a potential or actual competitor of, a commercial project entity as
1114
defined in Subsection
11-13-3
(3);
1115
(5) test questions and answers to be used in future license, certification, registration,
1116
employment, or academic examinations;
1117
(6) records the disclosure of which would impair governmental procurement proceedings
1118
or give an unfair advantage to any person proposing to enter into a contract or agreement with a
1119
governmental entity, except that this subsection does not restrict the right of a person to see bids
1120
submitted to or by a governmental entity after bidding has closed;
1121
(7) records that would identify real property or the appraisal or estimated value of real or
1122
personal property, including intellectual property, under consideration for public acquisition before
1123
any rights to the property are acquired unless:
1124
(a) public interest in obtaining access to the information outweighs the governmental
1125
entity's need to acquire the property on the best terms possible;
1126
(b) the information has already been disclosed to persons not employed by or under a duty
1127
of confidentiality to the entity;
1128
(c) in the case of records that would identify property, potential sellers of the described
1129
property have already learned of the governmental entity's plans to acquire the property; or
1130
(d) in the case of records that would identify the appraisal or estimated value of property,
1131
the potential sellers have already learned of the governmental entity's estimated value of the
1132
property;
1133
(8) records prepared in contemplation of sale, exchange, lease, rental, or other
1134
compensated transaction of real or personal property including intellectual property, which, if
1135
disclosed prior to completion of the transaction, would reveal the appraisal or estimated value of
1136
the subject property, unless:
1137
(a) the public interest in access outweighs the interests in restricting access, including the
1138
governmental entity's interest in maximizing the financial benefit of the transaction; or
1139
(b) when prepared by or on behalf of a governmental entity, appraisals or estimates of the
1140
value of the subject property have already been disclosed to persons not employed by or under a
1141
duty of confidentiality to the entity;
1142
(9) records created or maintained for civil, criminal, or administrative enforcement
1143
purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
1144
release of the records:
1145
(a) reasonably could be expected to interfere with investigations undertaken for
1146
enforcement, discipline, licensing, certification, or registration purposes;
1147
(b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
1148
proceedings;
1149
(c) would create a danger of depriving a person of a right to a fair trial or impartial hearing;
1150
(d) reasonably could be expected to disclose the identity of a source who is not generally
1151
known outside of government and, in the case of a record compiled in the course of an
1152
investigation, disclose information furnished by a source not generally known outside of
1153
government if disclosure would compromise the source; or
1154
(e) reasonably could be expected to disclose investigative or audit techniques, procedures,
1155
policies, or orders not generally known outside of government if disclosure would interfere with
1156
enforcement or audit efforts;
1157
(10) records the disclosure of which would jeopardize the life or safety of an individual;
1158
(11) records the disclosure of which would jeopardize the security of governmental
1159
property, governmental programs, or governmental recordkeeping systems from damage, theft, or
1160
other appropriation or use contrary to law or public policy;
1161
(12) records that, if disclosed, would jeopardize the security or safety of a correctional
1162
facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
1163
with the control and supervision of an offender's incarceration, treatment, probation, or parole;
1164
(13) records that, if disclosed, would reveal recommendations made to the Board of
1165
Pardons and Parole by an employee of or contractor for the Department of Corrections, the Board
1166
of Pardons and Parole, or the Department of Human Services that are based on the employee's or
1167
contractor's supervision, diagnosis, or treatment of any person within the board's jurisdiction;
1168
(14) records and audit workpapers that identify audit, collection, and operational
1169
procedures and methods used by the State Tax Commission, if disclosure would interfere with
1170
audits or collections;
1171
(15) records of a governmental audit agency relating to an ongoing or planned audit until
1172
the final audit is released;
1173
(16) records prepared by or on behalf of a governmental entity solely in anticipation of
1174
litigation that are not available under the rules of discovery;
1175
(17) records disclosing an attorney's work product, including the mental impressions or
1176
legal theories of an attorney or other representative of a governmental entity concerning litigation;
1177
(18) records of communications between a governmental entity and an attorney
1178
representing, retained, or employed by the governmental entity if the communications would be
1179
privileged as provided in Section
78-24-8
;
1180
(19) personal files of a legislator, including personal correspondence to or from a member
1181
of the Legislature, but not correspondence that gives notice of legislative action or policy;
1182
(20) (a) records in the custody or control of the Office of Legislative Research and General
1183
Counsel, that, if disclosed, would reveal a particular legislator's contemplated legislation or
1184
contemplated course of action before the legislator has elected to support the legislation or course
1185
of action, or made the legislation or course of action public; and
1186
(b) for purposes of this subsection, a "Request For Legislation" submitted to the Office of
1187
Legislative Research and General Counsel is a public document unless a legislator submits the
1188
"Request For Legislation" with a request that it be maintained as a protected record until such time
1189
as the legislator elects to make the legislation or course of action public;
1190
(21) research requests from legislators to the Office of Legislative Research and General
1191
Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared in response
1192
to these requests;
1193
(22) drafts, unless otherwise classified as public;
1194
(23) records concerning a governmental entity's strategy about collective bargaining or
1195
pending litigation;
1196
(24) records of investigations of loss occurrences and analyses of loss occurrences that
1197
may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the Uninsured
1198
Employers' Fund, or similar divisions in other governmental entities;
1199
(25) records, other than personnel evaluations, that contain a personal recommendation
1200
concerning an individual if disclosure would constitute a clearly unwarranted invasion of personal
1201
privacy, or disclosure is not in the public interest;
1202
(26) records that reveal the location of historic, prehistoric, paleontological, or biological
1203
resources that if known would jeopardize the security of those resources or of valuable historic,
1204
scientific, educational, or cultural information;
1205
(27) records of independent state agencies if the disclosure of the records would conflict
1206
with the fiduciary obligations of the agency;
1207
(28) records of a public institution of higher education regarding tenure evaluations,
1208
appointments, applications for admissions, retention decisions, and promotions, which could be
1209
properly discussed in a meeting closed in accordance with Title 52, Chapter 4, Open and Public
1210
Meetings, provided that records of the final decisions about tenure, appointments, retention,
1211
promotions, or those students admitted, may not be classified as protected under this section;
1212
(29) records of the governor's office, including budget recommendations, legislative
1213
proposals, and policy statements, that if disclosed would reveal the governor's contemplated
1214
policies or contemplated courses of action before the governor has implemented or rejected those
1215
policies or courses of action or made them public;
1216
(30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
1217
revenue estimates, and fiscal notes of proposed legislation before issuance of the final
1218
recommendations in these areas;
1219
(31) records provided by the United States or by a government entity outside the state that
1220
are given to the governmental entity with a requirement that they be managed as protected records
1221
if the providing entity certifies that the record would not be subject to public disclosure if retained
1222
by it;
1223
(32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
1224
except as provided in Section
52-4-7
;
1225
(33) records that would reveal the contents of settlement negotiations but not including
1226
final settlements or empirical data to the extent that they are not otherwise exempt from disclosure;
1227
(34) memoranda prepared by staff and used in the decision-making process by an
1228
administrative law judge, a member of the Board of Pardons and Parole, or a member of any other
1229
body charged by law with performing a quasi-judicial function;
1230
(35) records that would reveal negotiations regarding assistance or incentives offered by
1231
or requested from a governmental entity for the purpose of encouraging a person to expand or
1232
locate a business in Utah, but only if disclosure would result in actual economic harm to the person
1233
or place the governmental entity at a competitive disadvantage, but this section may not be used
1234
to restrict access to a record evidencing a final contract;
1235
(36) materials to which access must be limited for purposes of securing or maintaining the
1236
governmental entity's proprietary protection of intellectual property rights including patents,
1237
copyrights, and trade secrets;
1238
(37) the name of a donor or a prospective donor to a governmental entity, including a
1239
public institution of higher education, and other information concerning the donation that could
1240
reasonably be expected to reveal the identity of the donor, provided that:
1241
(a) the donor requests anonymity in writing;
1242
(b) any terms, conditions, restrictions, or privileges relating to the donation may not be
1243
classified protected by the governmental entity under this Subsection (37); and
1244
(c) except for public institutions of higher education, the governmental unit to which the
1245
donation is made is primarily engaged in educational, charitable, or artistic endeavors, and has no
1246
regulatory or legislative authority over the donor, a member of his immediate family, or any entity
1247
owned or controlled by the donor or his immediate family;
1248
(38) accident reports, except as provided in Sections
41-6-40
,
41-12a-202
, and
73-18-13
;
1249
(39) a notification of workers' compensation insurance coverage described in Section
1250
34A-2-205
; [and]
1251
(40) the following records of a public institution of education, which have been developed,
1252
discovered, or received by or on behalf of faculty, staff, employees, or students of the institution:
1253
unpublished lecture notes, unpublished research notes and data, unpublished manuscripts, creative
1254
works in process, scholarly correspondence, and confidential information contained in research
1255
proposals. Nothing in this Subsection (40) shall be construed to affect the ownership of a
1256
record[.]; and
1257
(41) information contained in the Management Information System and Licensing
1258
Information System described in Title 62A, Chapter 4a, Child and Family Services.
1259
Section 16.
Section
78-3a-103
is amended to read:
1260
78-3a-103. Definitions.
1261
(1) As used in this chapter:
1262
(a) "Abused child" includes a minor less than 18 years of age who:
1263
(i) has suffered or been threatened with nonaccidental physical or mental harm, negligent
1264
treatment, or sexual exploitation; or
1265
(ii) has been the victim of any sexual abuse.
1266
(b) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
1267
alleged in the petition have been proved.
1268
(c) "Adult" means a person 18 years of age or over, except that persons 18 years or over
1269
under the continuing jurisdiction of the juvenile court pursuant to Section
78-3a-121
shall be
1270
referred to as minors.
1271
(d) "Board" means the Board of Juvenile Court Judges.
1272
(e) "Child placement agency" means:
1273
(i) a private agency licensed to receive minors for placement or adoption under this code;
1274
or
1275
(ii) a private agency receiving minors for placement or adoption in another state, which
1276
agency is licensed or approved where such license or approval is required by law.
1277
(f) "Commit" means to transfer legal custody.
1278
(g) "Court" means the juvenile court.
1279
(h) "Dependent child" includes a minor who is homeless or without proper care through
1280
no fault of his parent, guardian, or custodian.
1281
(i) "Deprivation of custody" means transfer of legal custody by the court from a parent or
1282
the parents or a previous legal custodian to another person, agency, or institution.
1283
(j) "Detention" means home detention and secure detention as defined in Section
1284
62A-7-101
for the temporary care of minors who require secure custody in physically restricting
1285
facilities:
1286
(i) pending court disposition or transfer to another jurisdiction; or
1287
(ii) while under the continuing jurisdiction of the court.
1288
(k) "Division" means the Division of Child and Family Services.
1289
[(k)] (l) "Formal referral" means a written report from a peace officer or other person
1290
informing the court that a minor is or appears to be within the court's jurisdiction and that a
1291
petition may be filed.
1292
[(l)] (m) "Group rehabilitation therapy" means psychological and social counseling of one
1293
or more persons in the group, depending upon the recommendation of the therapist.
1294
[(m)] (n) "Guardianship of the person" includes the authority to consent to marriage, to
1295
enlistment in the armed forces, to major medical, surgical, or psychiatric treatment, and to legal
1296
custody, if legal custody is not vested in another person, agency, or institution.
Text Box
- 43 -
Senate 2nd Reading Amendments 2-7-2002 sm/pwh
1297
[(n)] (o) "Habitual truant" is a school-age minor who has received more than two truancy
1298
citations within one school year from the school in which the minor is or should be enrolled and
1299
eight absences without a legitimate or valid excuse or who, in defiance of efforts on the part of
1300
school authorities as required under Section
53A-11-103
, refuses to regularly attend school or any
1301
scheduled period of the school day.
1302
[(o)] (p) "Legal custody" means a relationship embodying the following rights and duties:
1303
(i) the right to physical custody of the minor;
1304
(ii) the right and duty to protect, train, and discipline the minor;
1305
(iii) the duty to provide the minor with food, clothing, shelter, education, and ordinary
1306
medical care;
1307
(iv) the right to determine where and with whom the minor shall live; and
1308
(v) the right, in an emergency, to authorize surgery or other extraordinary care.
1309
[(p)] (q) "Minor" means a person under the age of 18 years. It includes the term "child"
1310
as used in other parts of this chapter.
1311
[(q)] (r) "Natural parent" means a minor's biological or adoptive parent, and includes the
1312
minor's noncustodial parent.
1313
[(r)] (s) (i) "Neglected child" means a minor:
1314
(A) whose parent, guardian, or custodian has abandoned the minor, except as provided in
1315
Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child;
1316
(B) whose parent, guardian, or custodian has subjected the minor to mistreatment or abuse;
1317
(C) who lacks proper parental care by reason of the fault or habits of the parent, guardian,
1318
or custodian;
1319
(D) whose parent, guardian, or custodian fails or refuses to provide proper or necessary
1320
subsistence, education, or medical care, including surgery or psychiatric services when required,
1321
or any other care necessary for health, safety, morals, or well-being; or
1322
(E) who is at risk of being a neglected or abused child as defined in this chapter because
1323
another minor in the same home is a neglected or abused child as defined in this chapter.
1324
(ii) The aspect of neglect related to education, described in Subsection (1) S [
(r)
]
(s)
s (i)(D),
1324a
means
1325
that, after receiving notice that a minor has been frequently absent from school without good cause,
1326
or that the minor has failed to cooperate with school authorities in a reasonable manner, a parent
1327
or guardian fails to make a good faith effort to ensure that the minor receives an appropriate
1328
education.
1329
(iii) A parent or guardian legitimately practicing religious beliefs and who, for that reason,
1330
does not provide specified medical treatment for a minor, is not guilty of neglect.
1331
[(s)] (t) "Nonjudicial adjustment" means closure of the case by the assigned probation
1332
officer without judicial determination upon the consent in writing of the minor, the parent, legal
1333
guardian or custodian, and the assigned probation officer.
1334
[(t)] (u) "Probation" means a legal status created by court order following an adjudication
1335
on the ground of a violation of law or under Section
78-3a-104
, whereby the minor is permitted
1336
to remain in his home under prescribed conditions and under supervision by the probation
1337
department or other agency designated by the court, subject to return to the court for violation of
1338
any of the conditions prescribed.
1339
[(u)] (v) "Protective supervision" means a legal status created by court order following an
1340
adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
1341
remain in his home, and supervision and assistance to correct the abuse, neglect, or dependency
1342
is provided by the probation department or other agency designated by the court.
1343
[(v)] (w) "Residual parental rights and duties" means those rights and duties remaining
1344
with the parent after legal custody or guardianship, or both, have been vested in another person or
1345
agency, including the responsibility for support, the right to consent to adoption, the right to
1346
determine the child's religious affiliation, and the right to reasonable parent-time unless restricted
1347
by the court. If no guardian has been appointed, "residual parental rights and duties" also include
1348
the right to consent to marriage, to enlistment, and to major medical, surgical, or psychiatric
1349
treatment.
1350
[(w)] (x) "Secure facility" means any facility operated by or under contract with the
1351
Division of Youth Corrections, that provides 24-hour supervision and confinement for youth
1352
offenders committed to the division for custody and rehabilitation.
1353
[(x)] (y) "Shelter" means the temporary care of minors in physically unrestricted facilities
1354
pending court disposition or transfer to another jurisdiction.
1355
[(y)] (z) "State supervision" means a disposition which provides a more intensive level of
1356
intervention than standard probation but is less intensive or restrictive than a community placement
1357
with the Division of Youth Corrections.
1358
(aa) "Substantiated" has the same meaning as defined in Section
62A-4a-101
.
1359
(bb) "Supported" has the same meaning as defined in Section
62A-4a-101
.
1360
[(z)] (cc) "Termination of parental rights" means the permanent elimination of all parental
1361
rights and duties, including residual parental rights and duties, by court order.
1362
[(aa)] (dd) "Therapist" means a person employed by a state division or agency for the
1363
purpose of conducting psychological treatment and counseling of a minor in its custody, or any
1364
other person licensed or approved by the state for the purpose of conducting psychological
1365
treatment and counseling.
1366
(ee) "Unsubstantiated" has the same meaning as defined in Section
62A-4a-101
.
1367
(ff) "Without merit" has the same meaning as defined in Section
62A-4a-101
.
1368
(2) As used in Part 3, Abuse, Neglect, and Dependency Proceedings, with regard to the
1369
Division of Child and Family Services:
1370
(a) "Custody" means the custody of a minor in the Division of Child and Family Services
1371
as of the date of disposition.
1372
(b) "Protective custody" means the shelter of a minor by the Division of Child and Family
1373
Services from the time the minor is removed from home until the shelter hearing, or the minor's
1374
return home, whichever occurs earlier.
1375
(c) "Temporary custody" means the custody of a minor in the Division of Child and Family
1376
Services from the date of the shelter hearing until disposition.
1377
Section 17.
Section
78-3a-104