Bill Text: MI SB0334 | 2015-2016 | 98th Legislature | Chaptered
Bill Title: Children; protection; reporting child abuse or child neglect through an online reporting system and waiving a written report under certain circumstances; allow, change venereal disease to sexually transmitted infection, and allow federal or state governmental agency access to certain records. Amends secs. 2, 3 & 7 of 1975 PA 238 (MCL 722.622 et seq.).
Spectrum: Moderate Partisan Bill (Republican 4-1)
Status: (Passed) 2016-03-09 - Assigned Pa 0035'16 With Immediate Effect [SB0334 Detail]
Download: Michigan-2015-SB0334-Chaptered.html
Act No. 35
Public Acts of 2016
Approved by the Governor
March 8, 2016
Filed with the Secretary of State
March 8, 2016
EFFECTIVE DATE: March 8, 2016
STATE OF MICHIGAN
98TH LEGISLATURE
REGULAR SESSION OF 2016
Introduced by Senators Emmons, Jones, Knollenberg, Nofs and Bieda
ENROLLED SENATE BILL No. 334
AN ACT to amend 1975 PA 238, entitled “An act to require the reporting of child abuse and neglect by certain persons; to permit the reporting of child abuse and neglect by all persons; to provide for the protection of children who are abused or neglected; to authorize limited detainment in protective custody; to authorize medical examinations; to prescribe the powers and duties of the state department of social services to prevent child abuse and neglect; to prescribe certain powers and duties of local law enforcement agencies; to safeguard and enhance the welfare of children and preserve family life; to provide for the appointment of legal counsel; to provide for the abrogation of privileged communications; to provide civil and criminal immunity for certain persons; to provide rules of evidence in certain cases; to provide for confidentiality of records; to provide for the expungement of certain records; to prescribe penalties; and to repeal certain acts and parts of acts,” by amending sections 2, 3, and 7 (MCL 722.622, 722.623, and 722.627), section 2 as amended by 2014 PA 30, section 3 as amended by 2014 PA 344, and section 7 as amended by 2014 PA 527.
The People of the State of Michigan enact:
Sec. 2. As used in this act:
(a) “Adult foster care location authorized to care for a child” means an adult foster care family home or adult foster care small group home as defined in section 3 of the adult foster care facility licensing act, 1979 PA 218, MCL 400.703, in which a child is placed in accordance with section 5 of 1973 PA 116, MCL 722.115.
(b) “Attorney” means, if appointed to represent a child under the provisions referenced in section 10, an attorney serving as the child’s legal advocate in the manner defined and described in section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.13a.
(c) “Central registry” means the system maintained at the department that is used to keep a record of all reports filed with the department under this act in which relevant and accurate evidence of child abuse or child neglect is found to exist.
(d) “Central registry case” means a child protective services case that the department classifies under sections 8 and 8d as category I or category II. For a child protective services case that was investigated before July 1, 1999, central registry case means an allegation of child abuse or child neglect that the department substantiated.
(e) “Centralized intake” means the department’s statewide centralized processing center for reports of suspected child abuse and child neglect.
(f) “Child” means a person under 18 years of age.
(g) “Child abuse” means harm or threatened harm to a child’s health or welfare that occurs through nonaccidental physical or mental injury, sexual abuse, sexual exploitation, or maltreatment, by a parent, a legal guardian, or any other person responsible for the child’s health or welfare or by a teacher, a teacher’s aide, or a member of the clergy.
(h) “Child care organization” means that term as defined in section 1 of 1973 PA 116, MCL 722.111.
(i) “Child care provider” means an owner, operator, employee, or volunteer of a child care organization or of an adult foster care location authorized to care for a child.
(j) “Child care regulatory agency” means the department of licensing and regulatory affairs or a successor state department that is responsible for the licensing or registration of child care organizations or the licensing of adult foster care locations authorized to care for a child.
(k) “Child neglect” means harm or threatened harm to a child’s health or welfare by a parent, legal guardian, or any other person responsible for the child’s health or welfare that occurs through either of the following:
(i) Negligent treatment, including the failure to provide adequate food, clothing, shelter, or medical care.
(ii) Placing a child at an unreasonable risk to the child’s health or welfare by failure of the parent, legal guardian, or other person responsible for the child’s health or welfare to intervene to eliminate that risk when that person is able to do so and has, or should have, knowledge of the risk.
(l) “Citizen review panel” means a panel established as required by section 106 of title I of the child abuse prevention and treatment act, 42 USC 5106a.
(m) “Member of the clergy” means a priest, minister, rabbi, Christian science practitioner, or other religious practitioner, or similar functionary of a church, temple, or recognized religious body, denomination, or organization.
(n) “Controlled substance” means that term as defined in section 7104 of the public health code, 1978 PA 368, MCL 333.7104.
(o) “CPSI system” means the child protective service information system, which is an internal data system maintained within and by the department, and which is separate from the central registry and not subject to section 7.
(p) “Department” means the department of health and human services.
(q) “Director” means the director of the department.
(r) “Expunge” means to physically remove or eliminate and destroy a record or report.
(s) “Lawyer-guardian ad litem” means an attorney appointed under section 10 who has the powers and duties referenced by section 10.
(t) “Local office file” means the system used to keep a record of a written report, document, or photograph filed with and maintained by a county or a regionally based office of the department.
(u) “Nonparent adult” means a person who is 18 years of age or older and who, regardless of the person’s domicile, meets all of the following criteria in relation to a child:
(i) Has substantial and regular contact with the child.
(ii) Has a close personal relationship with the child’s parent or with a person responsible for the child’s health or welfare.
(iii) Is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree.
(v) “Online reporting system” means the electronic system established by the department for individuals identified in section 3(1) to report suspected child abuse or child neglect.
(w) “Person responsible for the child’s health or welfare” means a parent, legal guardian, person 18 years of age or older who resides for any length of time in the same home in which the child resides, or, except when used in section 7(2)(e) or 8(8), nonparent adult; or an owner, operator, volunteer, or employee of 1 or more of the following:
(i) A licensed or registered child care organization.
(ii) A licensed or unlicensed adult foster care family home or adult foster care small group home as defined in section 3 of the adult foster care facility licensing act, 1979 PA 218, MCL 400.703.
(iii) A court-operated facility as approved under section 14 of the social welfare act, 1939 PA 280, MCL 400.14.
(x) “Relevant evidence” means evidence having a tendency to make the existence of a fact that is at issue more probable than it would be without the evidence.
(y) “Sexual abuse” means engaging in sexual contact or sexual penetration as those terms are defined in section 520a of the Michigan penal code, 1931 PA 328, MCL 750.520a, with a child.
(z) “Sexual exploitation” includes allowing, permitting, or encouraging a child to engage in prostitution, or allowing, permitting, encouraging, or engaging in the photographing, filming, or depicting of a child engaged in a listed sexual act as defined in section 145c of the Michigan penal code, 1931 PA 328, MCL 750.145c.
(aa) “Specified information” means information in a children’s protective services case record related specifically to the department’s actions in responding to a complaint of child abuse or child neglect. Specified information does not include any of the following:
(i) Except as provided in this subparagraph regarding a perpetrator of child abuse or child neglect, personal identification information for any individual identified in a child protective services record. The exclusion of personal identification information as specified information prescribed by this subparagraph does not include personal identification information identifying an individual alleged to have perpetrated child abuse or child neglect, which allegation has been classified as a central registry case.
(ii) Information in a law enforcement report as provided in section 7(8).
(iii) Any other information that is specifically designated as confidential under other law.
(iv) Any information not related to the department’s actions in responding to a report of child abuse or child neglect.
(bb) “Structured decision-making tool” means the department document labeled “DSS-4752 (P3) (3-95)” or a revision of that document that better measures the risk of future harm to a child.
(cc) “Substantiated” means a child protective services case classified as a central registry case.
(dd) “Unsubstantiated” means a child protective services case the department classifies under sections 8 and 8d as category III, category IV, or category V.
Sec. 3. (1) An individual is required to report under this act as follows:
(a) A physician, dentist, physician’s assistant, registered dental hygienist, medical examiner, nurse, person licensed to provide emergency medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, social worker, licensed master’s social worker, licensed bachelor’s social worker, registered social service technician, social service technician, a person employed in a professional capacity in any office of the friend of the court, school administrator, school counselor or teacher, law enforcement officer, member of the clergy, or regulated child care provider who has reasonable cause to suspect child abuse or child neglect shall make an immediate report to centralized intake by telephone, or, if available, through the online reporting system, of the suspected child abuse or child neglect. Within 72 hours after making an oral report by telephone to centralized intake, the reporting person shall file a written report as required in this act. If the immediate report has been made using the online reporting system and that report includes the information required in a written report under subsection (2), that report is considered a written report for the purposes of this section and no additional written report is required. If the reporting person is a member of the staff of a hospital, agency, or school, the reporting person shall notify the person in charge of the hospital, agency, or school of his or her finding and that the report has been made, and shall make a copy of the written or electronic report available to the person in charge. A notification to the person in charge of a hospital, agency, or school does not relieve the member of the staff of the hospital, agency, or school of the obligation of reporting to the department as required by this section. One report from a hospital, agency, or school is adequate to meet the reporting requirement. A member of the staff of a hospital, agency, or school shall not be dismissed or otherwise penalized for making a report required by this act or for cooperating in an investigation.
(b) A department employee who is 1 of the following and has reasonable cause to suspect child abuse or child neglect shall make a report of suspected child abuse or child neglect to the department in the same manner as required under subdivision (a):
(i) Eligibility specialist.
(ii) Family independence manager.
(iii) Family independence specialist.
(iv) Social services specialist.
(v) Social work specialist.
(vi) Social work specialist manager.
(vii) Welfare services specialist.
(c) Any employee of an organization or entity that, as a result of federal funding statutes, regulations, or contracts, would be prohibited from reporting in the absence of a state mandate or court order. A person required to report under this subdivision shall report in the same manner as required under subdivision (a).
(2) The written report or a report made using the online reporting system shall contain the name of the child and a description of the child abuse or child neglect. If possible, the report shall contain the names and addresses of the child’s parents, the child’s guardian, the persons with whom the child resides, and the child’s age. The report shall contain other information available to the reporting person that might establish the cause of the child abuse or child neglect, and the manner in which the child abuse or child neglect occurred.
(3) The department shall inform the reporting person of the required contents of the written report at the time the oral report is made by the reporting person.
(4) The written report required in this section shall be mailed or otherwise transmitted to centralized intake.
(5) Upon receipt of a written report of suspected child abuse or child neglect, the department may provide copies to the prosecuting attorney and the probate court of the counties in which the child suspected of being abused or neglected resides and is found.
(6) If an allegation, written report, or subsequent investigation of suspected child abuse or child neglect indicates a violation of sections 136b, 145c, 462a to 462h, or 520b to 520g of the Michigan penal code, 1931 PA 328, MCL 750.136b, 750.145c, 750.462a to 750.462h, and 750.520b to 750.520g, or section 7401c of the public health code, 1978 PA 368, MCL 333.7401c, involving methamphetamine has occurred, or if the allegation, written report, or subsequent investigation indicates that the suspected child abuse or child neglect was committed by an individual who is not a person responsible for the child’s health or welfare, including, but not limited to, a member of the clergy, a teacher, or a teacher’s aide, the department shall transmit a copy of the allegation or written report and the results of any investigation to a law enforcement agency in the county in which the incident occurred. If an allegation, written report, or subsequent investigation indicates that the individual who committed the suspected child abuse or child neglect is a child care provider and the department believes that the report has basis in fact, the department shall, within 24 hours of completion, transmit a copy of the written report or the results of the investigation to the child care regulatory agency with authority over the child care provider’s child care organization or adult foster care location authorized to care for a child.
(7) If a local law enforcement agency receives an allegation or written report of suspected child abuse or child neglect or discovers evidence of or receives a report of an individual allowing a child to be exposed to or to have contact with methamphetamine production, and the allegation, written report, or subsequent investigation indicates that the child abuse or child neglect or allowing a child to be exposed to or to have contact with methamphetamine production, was committed by a person responsible for the child’s health or welfare, the local law enforcement agency shall refer the allegation or provide a copy of the written report and the results of any investigation to the county department of the county in which the abused or neglected child is found, as required by subsection (1)(a). If an allegation, written report, or subsequent investigation indicates that the individual who committed the suspected child abuse or child neglect or allowed a child to be exposed to or to have contact with methamphetamine production, is a child care provider and the local law enforcement agency believes that the report has basis in fact, the local law enforcement agency shall transmit a copy of the written report or the results of the investigation to the child care regulatory agency with authority over the child care provider’s child care organization or adult foster care location authorized to care for a child. Nothing in this subsection or subsection (1) relieves the department of its responsibilities to investigate reports of suspected child abuse or child neglect under this act.
(8) For purposes of this act, the pregnancy of a child less than 12 years of age or the presence of a sexually transmitted infection in a child who is over 1 month of age but less than 12 years of age is reasonable cause to suspect child abuse or child neglect has occurred.
(9) In conducting an investigation of child abuse or child neglect, if the department suspects that a child has been exposed to or has had contact with methamphetamine production, the department shall immediately contact the law enforcement agency in the county in which the incident occurred.
Sec. 7. (1) The department shall maintain a statewide, electronic central registry to carry out the intent of this act.
(2) Unless made public as specified information released under section 7d, a written report, document, or photograph filed with the department as provided in this act is a confidential record available only to 1 or more of the following:
(a) A legally mandated public or private child protective agency investigating a report of known or suspected child abuse or child neglect or a legally mandated public or private child protective agency or foster care agency prosecuting a disciplinary action against its own employee involving child protective services or foster records.
(b) A police or other law enforcement agency investigating a report of known or suspected child abuse or child neglect.
(c) A physician who is treating a child whom the physician reasonably suspects may be abused or neglected.
(d) A person legally authorized to place a child in protective custody when the person is confronted with a child whom the person reasonably suspects may be abused or neglected and the confidential record is necessary to determine whether to place the child in protective custody.
(e) A person, agency, or organization, including a multidisciplinary case consultation team, authorized to diagnose, care for, treat, or supervise a child or family who is the subject of a report or record under this act, or who is responsible for the child’s health or welfare.
(f) A person named in the report or record as a perpetrator or alleged perpetrator of the child abuse or child neglect or a victim who is an adult at the time of the request, if the identity of the reporting person is protected as provided in section 5.
(g) A court for the purposes of determining the suitability of a person as a guardian of a minor or that otherwise determines that the information is necessary to decide an issue before the court, or in the event of a child’s death, a court that had jurisdiction over that child under section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2.
(h) A grand jury that determines the information is necessary to conduct the grand jury’s official business.
(i) A person, agency, or organization engaged in a bona fide research or evaluation project. The person, agency, or organization shall not release information identifying a person named in the report or record unless that person’s written consent is obtained. The person, agency, or organization shall not conduct a personal interview with a family without the family’s prior consent and shall not disclose information that would identify the child or the child’s family or other identifying information. The department director may authorize the release of information to a person, agency, or organization described in this subdivision if the release contributes to the purposes of this act and the person, agency, or organization has appropriate controls to maintain the confidentiality of personally identifying information for a person named in a report or record made under this act.
(j) A lawyer-guardian ad litem or other attorney appointed as provided by section 10.
(k) A child placing agency licensed under 1973 PA 116, MCL 722.111 to 722.128, for the purpose of investigating an applicant for adoption, a foster care applicant or licensee or an employee of a foster care applicant or licensee, an adult member of an applicant’s or licensee’s household, or other persons in a foster care or adoptive home who are directly responsible for the care and welfare of children, to determine suitability of a home for adoption or foster care. The child placing agency shall disclose the information to a foster care applicant or licensee under 1973 PA 116, MCL 722.111 to 722.128, or to an applicant for adoption.
(l) Family division of circuit court staff authorized by the court to investigate foster care applicants and licensees, employees of foster care applicants and licensees, adult members of the applicant’s or licensee’s household, and other persons in the home who are directly responsible for the care and welfare of children, for the purpose of determining the suitability of the home for foster care. The court shall disclose this information to the applicant or licensee.
(m) Subject to section 7a, a standing or select committee or appropriations subcommittee of either house of the legislature having jurisdiction over child protective services matters.
(n) The children’s ombudsman appointed under the children’s ombudsman act, 1994 PA 204, MCL 722.921 to 722.932.
(o) A child fatality review team established under section 7b and authorized under that section to investigate and review a child death.
(p) A county medical examiner or deputy county medical examiner appointed under 1953 PA 181, MCL 52.201 to 52.216, for the purpose of carrying out his or her duties under that act.
(q) A citizen review panel established by the department. Access under this subdivision is limited to information the department determines is necessary for the panel to carry out its prescribed duties.
(r) A child care regulatory agency.
(s) A foster care review board for the purpose of meeting the requirements of 1984 PA 422, MCL 722.131 to 722.139a.
(t) A local friend of the court office.
(u) A department employee actively representing himself or herself in a disciplinary action, a labor union representative who is actively representing a department employee in a disciplinary action, or an arbitrator or administrative law judge conducting a hearing involving a department employee’s dereliction, malfeasance, or misfeasance of duty, for use solely in connection with that action or hearing. Information disclosed under this subdivision shall be returned not later than 10 days after the conclusion of the action or hearing. A recipient shall not receive further disclosures under this subdivision while he or she retains disclosed information beyond the deadline specified for return.
(v) A federal or state governmental agency that may, by law, conduct an audit or similar review of the department’s activities under this act.
(3) Subject to subsection (9), a person or entity to whom information described in subsection (2) is disclosed shall make the information available only to a person or entity described in subsection (2). This subsection does not require a court proceeding to be closed that otherwise would be open to the public.
(4) If the department classifies a report of suspected child abuse or child neglect as a central registry case, the department shall maintain a record in the central registry and, within 30 days after the classification, shall notify in writing each person who is named in the record as a perpetrator of the child abuse or child neglect. The notice shall be sent by registered or certified mail, return receipt requested, and delivery restricted to the addressee. The notice shall set forth the person’s right to request expunction of the record and the right to a hearing if the department refuses the request. The notice shall state that the record may be released under section 7d. The notice shall not identify the person reporting the suspected child abuse or child neglect.
(5) A person who is the subject of a report or record made under this act may request the department to amend an inaccurate report or record from the central registry and local office file. A person who is the subject of a report or record made under this act may request the department to expunge from the central registry a report or record by requesting a hearing under subsection (6). A report or record filed in a local office file is not subject to expunction except as the department authorizes, if considered in the best interest of the child.
(6) A person who is the subject of a report or record made under this act may, within 180 days from the date of service of notice of the right to a hearing, request the department hold a hearing to review the request for amendment or expunction. If the hearing request is made within 180 days of the notice, the department shall hold a hearing to determine by a preponderance of the evidence whether the report or record in whole or in part should be amended or expunged from the central registry. The hearing shall be held before a hearing officer appointed by the department and shall be conducted as prescribed by the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The department may, for good cause, hold a hearing under this subsection if the department determines that the person who is the subject of the report or record submitted the request for a hearing within 60 days after the 180-day notice period expired.
(7) If the investigation of a report conducted under this act does not show child abuse or child neglect by a preponderance of evidence, or if a court dismisses a petition based on the merits of the petition filed under section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2, because the petitioner has failed to establish that the child comes within the jurisdiction of the court, the information identifying the subject of the report shall be expunged from the central registry. If a preponderance of evidence of abuse or neglect exists, or if a court takes jurisdiction of the child under section 2(b) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2, the department shall maintain the information in the central registry as follows:
(a) Except as provided in subdivision (b), for a person listed as a perpetrator in category I or II under section 8d, either as a result of an investigation or as a result of the reclassification of a case, the department shall maintain the information in the central registry for 10 years.
(b) For a person listed as a perpetrator in category I or II under section 8d that involved any of the circumstances listed in section 17(1) or 18(1), the department shall maintain the information in the central registry until the department receives reliable information that the perpetrator of the abuse or neglect is dead. For the purpose of this subdivision, “reliable information” includes, but is not limited to, information obtained using the United States social security death index database.
(c) For a person who is the subject of a report or record made under this act before March 31, 2015 the following applies:
(i) Except as provided in subparagraph (ii), for a person listed as perpetrator in category I or II under section 8d either as a result of an investigation or as a result of the reclassification of a case, the department may remove the information for a person described in this subparagraph after 10 years without a request for amendment or expunction.
(ii) For a person listed as a perpetrator in category I or II under section 8d that involved any of the circumstances listed in section 17(1) or 18(1), the department shall maintain the information in the central registry until the department receives reliable information that the perpetrator of the child abuse or child neglect is dead. For the purpose of this subparagraph, “reliable information” includes, but is not limited to, information obtained using the United States social security death index database.
(8) In releasing information under this act, the department shall not include a report compiled by a police agency or other law enforcement agency related to an ongoing investigation of suspected child abuse or child neglect. This subsection does not prohibit the department from releasing reports of convictions of crimes related to child abuse or child neglect.
(9) A member or staff member of a citizen review panel shall not disclose identifying information about a specific child protection case to an individual, partnership, corporation, association, governmental entity, or other legal entity. A member or staff member of a citizen review panel is a member of a board, council, commission, or statutorily created task force of a governmental agency for the purposes of section 7 of 1964 PA 170, MCL 691.1407. Information obtained by a citizen review panel is not subject to the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(10) Documents, reports, or records authored by or obtained from another agency or organization shall not be released or open for inspection under subsection (2) unless required by other state or federal law, in response to an order issued by a judge, magistrate, or other authorized judicial officer, or unless the documents, reports, or records are requested for a child abuse or child neglect case or for a criminal investigation of a child abuse or child neglect case conducted by law enforcement.
This act is ordered to take immediate effect.
Secretary of the Senate
Clerk of the House of Representatives
Approved
Governor
