Bill Text: AZ SB1380 | 2017 | Fifty-third Legislature 1st Regular | Chaptered
Bill Title: DCS; background checks; central registry
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2017-03-24 - Chapter 72 [SB1380 Detail]
Download: Arizona-2017-SB1380-Chaptered.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fifty-third Legislature First Regular Session 2017
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CHAPTER 72
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SENATE BILL 1380 |
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AN ACT
amending sections 8‑134, 8‑506, 8‑804 and 8‑811, Arizona Revised Statutes; relating to the department of child safety.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 8-134, Arizona Revised Statutes, is amended to read:
8-134. Confidential intermediary
A. Any of the following persons may use the services of a confidential intermediary who is listed with the court:
1. The adoptive parents of an adoptee who is at least eighteen years of age or, if the adoptive parents are deceased, the adoptee's guardian.
2. An adoptee if the adoptee is at least eighteen years of age.
3. If an adoptee is deceased, the adoptee's spouse if the spouse is the legal parent or guardian of any child of the adoptee.
4. If an adoptee is deceased, any progeny of the adoptee who is at least eighteen years of age.
5. Either of the birth parents of an adoptee.
6. If the birth parent of an adoptee is deceased, the parent of the birth parent.
6. The biological grandparent of the adoptee or other members of the adoptee's extended biological family.
7. A biological sibling of the adoptee if the sibling is at least eighteen years of age.
B. An adoption agency licensed by this state, the division or an individual who meets the requirements adopted pursuant to subsections F I and G J of this section may serve as a confidential intermediary.
C. Notwithstanding sections 8‑120 and 8‑121, a confidential intermediary may inspect documents compiled pursuant to this article. Documents include the court records, division records, agency records and maternity home records. The confidential intermediary shall keep confidential all information obtained during the course of the investigation. The intermediary shall use confidential information only to arrange a contact or share information between the person who initiates the search and the person who is the subject of the search. A confidential intermediary shall review the court record before making any contact with an adoptee to determine if an affidavit has been filed pursuant to subsection E of this section. Except as provided pursuant to subsection A, paragraphs 1, 2, 4 and 7 and subsection G of this section, a confidential intermediary shall not contact persons under twenty‑one years of age.
D. The confidential intermediary shall obtain written consent from the person who initiated the search and the person who is the subject of the search before arranging for the sharing of identifying information or a contact between them. If the confidential intermediary discovers the subject of the search is deceased or that the identity of the birth father was unknown to or not revealed by the birth mother, the confidential intermediary shall share this information with the person initiating the search. If the confidential intermediary, after a diligent effort, is unable to locate the subject of the search to obtain written consent to share information, the confidential intermediary shall share this information with the person initiating the search and prepare and place with the compiled documents a written report describing search efforts. If the person who initiated the search petitions the court to release identifying information, the court shall review the report prepared by the confidential intermediary and shall decide if the information may be released and in what manner the information may be released if the court determines there is good cause.
E. An adoptive parent who has not informed an adoptee that the adoptee was adopted may file an affidavit so stating with the court where the adoption took place. The affidavit may be withdrawn at any time by the adoptive parent. If an affidavit is a part of the court record, the confidential intermediary shall not make contact with the adoptee unless the adoptive parent withdraws the affidavit and grants permission in writing or the adoptee has filed an affidavit stating that the adoptee knows about the adoption and wishes to make contact with the birth parent.
F. A birth parent who has not informed the parent's biological offspring of the existence of the adoptee may file an affidavit so stating with the court where the adoption took place. The affidavit may be withdrawn at any time by the birth parent. If an affidavit is a part of the court record, the confidential intermediary shall not make contact with the biological sibling unless the birth parent withdraws the affidavit and grants permission in writing or the biological sibling has filed an affidavit stating that the biological sibling knows about the adoptee and wishes to make contact with the adoptee.
G. On receipt of a written statement from a physician or a registered nurse practitioner that explains in detail how a health condition may seriously affect the health of the adoptee or a direct descendant of the adoptee, the court shall order the confidential intermediary program to appoint a confidential intermediary. The confidential intermediary shall make a diligent effort to notify an adoptee who has attained eighteen years of age, an adoptive parent or guardian of an adoptee who has not attained eighteen years of age or a direct descendant of a deceased adoptee that the nonidentifying information is available and shall be provided on written request.
H. On receipt of a written statement from a physician or a registered nurse practitioner that explains in detail why a serious health condition of the adoptee or a direct descendant of the adoptee should be communicated to the birth parent or biological sibling to enable the birth parent or biological sibling to make an informed medical decision, the court shall order the confidential intermediary program to appoint a confidential intermediary. The confidential intermediary shall make a diligent effort to notify those individuals that the nonidentifying information is available and shall be provided on written request.
I. The Arizona supreme court shall administer the confidential intermediary program. The court shall adopt rules and procedures necessary to implement the program, including qualifications, required fees, minimum standards for certification, training and standards of conduct of confidential intermediaries, and shall establish the fees that may be charged by a confidential intermediary.
J. A person shall not act as a confidential intermediary unless the person possesses a confidential intermediary certificate issued by the supreme court. In order to be certified as a confidential intermediary a person shall meet and maintain the minimum standards prescribed by this section and the rules adopted by the supreme court.
K. In carrying out the provisions of this section the supreme court shall require applicants for a confidential intermediary certificate to furnish fingerprints and the supreme court shall obtain criminal history record information pursuant to section 41‑1750. The applicant for certification shall pay a fee to the department of public safety to reimburse the department of public safety for the cost of obtaining the applicant's criminal history record information required by this section. The fee shall not exceed the actual cost of obtaining the applicant's criminal history record information.
L. The actual and reasonable cost to the agency, division or court of providing information pursuant to the confidential intermediary program shall be paid by the person requesting the services of a confidential intermediary. If the juvenile court of a county is supplying the information, the actual and reasonable costs shall be paid to the clerk of the court of that county who shall transmit the monies to the county treasurer of that county for deposit in the juvenile probation services fund to be utilized by the juvenile court of that county for reimbursing the court for costs associated with providing information pursuant to the confidential intermediary program. If the division is supplying the information, the actual and reasonable costs shall be paid to the division. If an agency is supplying the information, the actual and reasonable costs shall be paid to the agency.
Sec. 2. Section 8-506, Arizona Revised Statutes, is amended to read:
8-506. Denial, suspension or revocation of license; foster home; hearing; exception
A. The division may deny the application or suspend or revoke the license of any foster home for wilful violation of any provision of this article or failure to maintain the standards of the care prescribed by the division. Written notice of the grounds of the suspension or the proposed denial or revocation shall be given to the applicant or holder of the license. A copy of the written notice of the suspension or the proposed denial or revocation shall be forwarded to the agency that recommended the foster home for licensing. Within twenty‑five days after the mailing date of the written notice of proposed denial, revocation or suspension, the applicant or holder may request a hearing in accordance with the rules of the division. If the hearing is requested it shall be held within ten days of after the request, at which time the applicant or holder shall have the right to present testimony and confront witnesses.
B. A denial, suspension or revocation of a foster home license due to a failure to obtain or maintain a level I fingerprint clearance card as required by section 8‑509 is not an appealable agency action.
Sec. 3. Section 8-804, Arizona Revised Statutes, is amended to read:
8-804. Central registry; notification
A. The department shall maintain a central registry of reports of child abuse and neglect that are substantiated and the outcome of the investigation of these reports made under this article. A finding made by a court pursuant to section 8‑844, subsection C that a child is dependent based on an allegation of abuse or neglect shall be recorded as a substantiated finding of abuse or neglect. The department shall incorporate duplicate reports on the same incident in the original report and shall not classify duplicate reports as new reports.
B. The department shall conduct central registry background checks and shall use the information contained in the central registry only for the following purposes:
1. As a factor to determine qualifications for foster home licensing, adoptive parent certification, individuals who apply for child welfare agency licensing, child care home certification, registration of unregulated child care homes with the child care resource and referral system, and home and community based services certification for services to children or vulnerable adults.
2. As a factor to determine qualifications for persons who are employed or who are applying for employment with this state in positions that provide direct service to children or vulnerable adults.
3. As a factor to determine qualifications for individuals who are employed or who are applying for employment with a child welfare agency in positions that provide direct service to children or vulnerable adults.
3. 4. As a factor to determine qualifications for positions that provide direct service to children or vulnerable adults for:
(a) Any person who applies for a contract with this state and that person's employees.
(b) All employees of a contractor.
(c) A subcontractor of a contractor and the subcontractor's employees.
(d) Prospective employees of the contractor or subcontractor at the request of the prospective employer.
4. 5. Beginning August 1, 2013, to provide information to licensees that do not contract with this state regarding persons who are employed or seeking employment to provide direct services to children pursuant to title 36, chapter 7.1.
5. 6. To identify and review reports concerning individual children and families, in order to facilitate the assessment of safety and risk.
6. 7. To determine the nature and scope of child abuse and neglect in this state and to provide statewide statistical and demographic information concerning trends in child abuse and neglect.
7. 8. To allow comparisons of this state's statistical data with national data.
8. 9. To comply with section 8‑804.01, subsection B.
C. Beginning August 1, 2013, licensees that do not contract with the state and that employ persons who provide direct services to children pursuant to title 36, chapter 7.1 must submit to the department of child safety in a manner prescribed by the department of child safety information necessary to conduct central registry background checks. The department of health services shall verify whether licensees, pursuant to title 36, chapter 7.1, have complied with the requirements of this subsection and any rules adopted by the department of health services to implement this subsection.
D. If the department of economic security received a report before September 1, 1999 and determined that the report was substantiated, the department of child safety shall maintain the report in the central registry until eighteen years from the child victim's date of birth.
E. If the department of economic security or the department of child safety received a report on or after September 1, 1999 and determined that the report was substantiated, the department of child safety shall maintain the report in the central registry for a maximum of twenty‑five years after the date of the report. If the department of child safety maintains reports in the central registry for less than twenty‑five years, the department shall adopt rules to designate the length of time it must maintain those reports in the central registry.
F. The department shall annually purge reports and investigative outcomes received pursuant to the time frames prescribed in subsections D and E of this section.
G. Any person who was the subject of a department investigation may request confirmation that the department has purged information about the person pursuant to subsection F of this section. On receipt of this request, the department shall provide the person with written confirmation that the department has no record containing identifying information about that person.
H. The department shall notify a person, contractor or licensee identified in subsection B, paragraph 3 4, subdivisions (a), (b) and (c) and subsection B, paragraph 4 5 of this section who is disqualified because of a central registry check conducted pursuant to subsection B of this section that the person may apply to the board of fingerprinting for a central registry exception pursuant to section 41‑619.57.
I. Before being employed in a position that provides direct services to children or vulnerable adults pursuant to subsection B, paragraphs 3 4 and 4 5 or subsection C of this section, employees shall certify, under penalty of perjury, on forms that are provided by the department whether an allegation of abuse or neglect was made against them and was substantiated. The forms are confidential. If this certification does not indicate a current investigation or a substantiated report of abuse or neglect, the employee may provide direct services pending the findings of the central registry check.
J. A person who is granted a central registry exception pursuant to section 41‑619.57 is not entitled to a contract, employment, licensure, certification or other benefit because the person has been granted a central registry exception.
K. An agency of this state that conducts central registry background checks as a factor to determine qualifications for positions that provide direct services to children or vulnerable adults shall publish a list of disqualifying acts of substantiated abuse or neglect.
L. An agency of this state that conducts central registry background checks may provide information contained in the central registry on all reports of child abuse and neglect that are substantiated and the outcomes of the investigations of the reports to carry out the provisions of this section. Identifying information regarding any person other than the perpetrator may not be released. Information received pursuant to this section may not be further disseminated unless authorized by law or court order.
Sec. 4. Section 8-811, Arizona Revised Statutes, is amended to read:
8-811. Hearing process; definitions
A. The department shall notify a person who is alleged to have abused or neglected a child that the department intends to substantiate the allegation in the central registry pursuant to section 8‑804 and of that person's right:
1. To receive a copy of the report containing the allegation.
2. To a hearing before the entry into the central registry.
B. The department shall send provide the notice prescribed in subsection A of this section by first class mail or by personal service no more than fourteen days after completion of the investigation.
C. A request for a hearing on the proposed finding must be received by the department within twenty days after the mailing or personal service of the notice by the department.
D. The department shall not disclose any information related to the investigation of the allegation except as provided in sections 8‑456, 8‑807, 8‑807.01 and 13‑3620.
E. If a request for a hearing is made pursuant to subsection C of this section, the department shall conduct a review before the hearing. The department shall provide an opportunity for the accused person to provide written or verbal information to support the position that the department should not substantiate the allegation. If the department determines that there is no probable cause that the accused person engaged in the alleged conduct, the department shall amend the information or finding in the report and shall notify the person and a hearing shall not be held.
F. Notwithstanding section 41‑1092.03, the notification prescribed in subsection A of this section shall also state that if the department does not amend the information or finding in the report as prescribed in subsection E of this section within sixty days after it receives the request for a hearing the person has a right to a hearing unless:
1. The person is a party in a pending civil, criminal or administrative proceeding in which the allegations of abuse or neglect are at issue.
2. The person is a party in a pending juvenile proceeding in which the allegations of abuse or neglect are at issue.
3. A court or administrative law judge has made findings as to the alleged abuse or neglect.
4. A court has found that a child is dependent or has terminated a parent's rights based on an allegation of abuse or neglect.
G. If the court or administrative law judge in a pending proceeding described in subsection F, paragraph 1 or 2 of this section does not make a finding of abuse or neglect and the matter is no longer pending in that forum, the person has a right to a hearing pursuant to subsection F of this section.
H. If the court or administrative law judge in a proceeding described in subsection F of this section has made a finding of abuse or neglect, the finding shall be entered into the central registry as a substantiated report.
I. If the department does not amend the information or finding in the report as prescribed in subsection E of this section, the department shall notify the office of administrative hearings of the request for a hearing no later than five days after completion of the review. The department shall forward all records, reports and other relevant information with the request for hearing within ten days. The department shall redact the identity of the reporting source before transmitting the information to the office of administrative hearings.
J. The office of administrative hearings shall hold a hearing pursuant to title 41, chapter 6, article 10, with the following exceptions:
1. A child who is the victim of or a witness to abuse or neglect is not required to testify at the hearing.
2. A child's hearsay statement is admissible if the time, content and circumstances of that statement are sufficiently indicative of its reliability.
3. The identity of the reporting source of the abuse or neglect shall not be disclosed without the permission of the reporting source.
4. The reporting source is not required to testify.
5. A written statement from the reporting source may be admitted if the time, content and circumstances of that statement are sufficiently indicative of its reliability.
6. If the person requesting the hearing fails to appear, the hearing shall be vacated and a substantiated finding of abuse or neglect shall be entered. On good cause shown, the hearing may be rescheduled if the request is made within fifteen calendar days after the date of the notice vacating the hearing for failure to appear.
K. On completion of the presentation of evidence, the administrative law judge shall determine if probable cause exists to sustain the department's finding that the parent, guardian or custodian abused or neglected the child. If the administrative law judge determines that probable cause exists to sustain the department's finding of abuse or neglect, the sustained finding shall be entered into the central registry as a substantiated report. If the administrative law judge determines that probable cause does not exist to sustain the department's finding, the administrative law judge shall order the department to amend the information or finding in the report.
L. When the department is requested to verify pursuant to section 8‑807, if the central registry contains a substantiated report about a specific person, the department shall determine if the report was taken after January 1, 1998. If the report was taken after January 1, 1998, the department shall notify the requestor of the substantiated finding. If the report was taken before January 1, 1998, the department shall notify the person of the person's right to request an administrative hearing. The department shall not send this notification if the person was a party in a civil, criminal or administrative proceeding in which the allegations of abuse or neglect were at issue. The provisions of this section shall apply to the person's appeal.
M. The department shall provide the parent, guardian or custodian who is the subject of the investigation and the person who reported the suspected child abuse or neglect if that person is the child's parent, guardian or custodian with a copy of the outcome of the investigation at one of the following times:
1. If the report is unsubstantiated.
2. If probable cause exists that abuse or neglect has occurred but a specific person is not identified as having abused or neglected the child.
3. After the time to request a hearing has lapsed pursuant to subsection C of this section without the department receiving a request for a hearing.
4. After a final administrative decision has been made pursuant to section 41‑1092.08.
N. For the purposes of this section:
1. "Amend the finding" means to change the finding from substantiated to unsubstantiated.
2. "Amend the information" means to change information identifying the accused of having abused or neglected a child.
APPROVED BY THE GOVERNOR MARCH 24, 2017.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MARCH 24, 2017.
