No. 42829 (New Rule): Rule R512-76. Expungement of DCFS Allegations

(New Rule)

DAR File No.: 42829
Filed: 04/23/2018 09:50:23 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This new rule is being implemented in response to S.B. 266 passed during the 2017 General Session.

Summary of the rule or change:

This new rule is being implemented in accordance with S.B. 266 (2017) to define the criteria for the expungement of an allegation associated with an individual who is identified as a perpetrator or alleged perpetrator in the Management Information System (MIS) and the Licensing Information System (LIS).

Statutory or constitutional authorization for this rule:

• Section 62A-4a-1008
• Section 62A-4a-102

Anticipated cost or savings to:

the state budget:

This proposed rule is not expected to have any fiscal impacts on state government revenues or expenditures. The original enactment of this statute in the 2017 General Session came with a fiscal note of $840,900 ($748,500 General Fund and $92,400 federal funds) in FY 2018, and $79,500 ($70,800 General Fund and $8,700 federal funds) annually beginning in FY 2019 to expunge alleged perpetrators from supported and unsupported reports of child abuse or neglect, based on criteria determined by the Division of Child and Family Services (DCFS). Costs in FY 2018 include computer programming to modify DCFS�s two information systems and assume approximately 1,100 requests for expungement; costs in subsequent years assume approximately 550 requests for expungement annually, which represents 2.6% of the alleged perpetrators documented in reports each year. This funding was approved by the legislature and is included in the state budget. This rule does not increase any costs not already considered by the legislature in their allocation.

local governments:

There is little to no impact on local governments due to this rule. This rule creates a method that could possibly reduce costs for local governments if they administrate an entity (school district, count, etc.) that performs background checks that include a query of DCFS' child abuse and/or neglect database. Theoretically, this expungement process will result in fewer potential employees with findings on said database, which means reduced processing time for local government staff and fewer barriers to the hiring of an individual. DCFS cannot quantify how many individuals that may be affected by this rule would also be involved in such background screenings, thus no savings are being projected. There are no anticipated increased costs.

small businesses:

There is little to no impact on small businesses due to this rule. This rule creates a method that could possibly reduce costs for small businesses if they perform background checks through the Department of Human Services that include a query of DCFS' child abuse and/or neglect database. Theoretically, this expungement process will result in fewer potential employees with findings on said database, which means reduced processing time for small businesses and fewer barriers to the hiring of an individual. DCFS cannot quantify how many individuals, that may be affected by this rule, would also be involved in such background screenings, thus no savings are being projected. There are no anticipated increased costs.

persons other than small businesses, businesses, or local governmental entities:

There is little to no impact on other persons due to this rule. This rule creates a method that could possibly reduce costs for other persons if findings on the DCFS database, that will now qualify for expungement, had previously been creating costs for individuals, such as costs related to employment barriers, custodial disputes, retaining legal counsel, etc. DCFS cannot quantify the potential savings enjoyed by such individuals, thus no savings are being projected. There are no anticipated increased costs.

Compliance costs for affected persons:

There are no compliance costs for affected persons associated with implementing this rule because this rule is not fiscal in nature.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that this proposed rule will not result in a fiscal impact to businesses because this rule implements an internal procedure for sealing DCFS records that is expected to have no costs for businesses and only minimal, unquantifiable potential savings.

Ann Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Human Services
Child and Family Services
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Carol Miller at the above address, by phone at 801-557-1772, by FAX at 801-538-3993, or by Internet E-mail at [e-mail]
• Diane Moore at the above address, by phone at 801-538-4235, by FAX at 801-538-4553, or by Internet E-mail at [e-mail]
• Jonah Shaw at the above address, by phone at 801-538-4225, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2018

This rule may become effective on:

06/21/2018

Authorized by:

Diane Moore, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2018

FY 2019

FY 2020

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Person

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

This proposed rule is not expected to have any fiscal impacts for non-small businesses because non-small businesses have no responsibility for services offered by the Division of Child and Family Services and are therefore not affected by this rule and will have no fiscal impact.

 

The head of the Department of Human Services, Ann Williamson, has reviewed and approved this fiscal analysis.

 

 

R512. Human Services, Child and Family Services.

R512-76. Expungement of DCFS Allegations.

R512-76-1. Purpose and Authority.

(1) The purpose of this rule is to define the criteria for the expungement of an allegation associated with an individual who is identified as a perpetrator or alleged perpetrator in the Management Information System (MIS) and the Licensing Information System (LIS).

(2) This rule is authorized by Sections 62A-4a-102 and 62A-4a-1008.

 

R512-76-2. Definitions.

(1) "CPS" means Child Protective Services.

(2) "DCFS" means the Division of Child and Family Services.

(3) "Expungement" means to seal an allegation associated with an individual identified as a perpetrator or alleged perpetrator that meets the criteria for expungement.

(4) "LIS" means the Licensing Information System as described in Section 62A-4a-1006.

(5) "MIS" means the Management Information System as described in Section 62A-4a-1003.

 

R512-76-3. Internal Process.

(1) An individual may submit a written request to expunge an allegation in which they are identified as a perpetrator or alleged perpetrator in the MIS or LIS. If the perpetrator or alleged perpetrator is a minor at the time expungement is sought, the perpetrator or alleged perpetrator's parent or guardian may submit the written request to expunge the allegation,

(2) Eligibility is based on the meeting of the criteria for expungement as outlined in the Criteria for Expungement subsection of this rule.

(3) If the individual does not meet the criteria for expungement, the request will be denied. The individual shall wait at least one year before submitting the same request.

(4) Decisions to approve or deny expungements are governed by the criteria for expungement and are not at the discretion of the division.

 

R512-76-4. Criteria for Expungement.

(1) Automatic Expungement after one year:

(a) All allegation types with a finding of Without Merit or Unsubstantiated by the court will be automatically expunged if:

(i) One year has passed since the case closure date with no subsequent ongoing case or removal; and

(ii) One year has passed since the case closure date with no subsequent CPS case, including unaccepted referrals.

(2) Automatic Expungement after five years:

(a) Allegations of dependency and educational neglect will be automatically expunged after five years if:

(i) The original CPS case did not result in an ongoing case or removal; and

(ii) Five years have passed since the case closure date with no subsequent CPS case, including unaccepted referrals.

(iii) Not eligible to make the request until a minimum of five years after the case closure date.

(3) Expungement Upon Request after five years:

(a) After five years have passed since the case closure date, an individual may request an expungement on the following Unsupported General Findings:

(i) Child Endangerment;

(ii) Dealing in Material Harmful to a Child;

(iii) Dental Neglect;

(iv) Dependency;

(v) Domestic Violence Related Child Abuse;

(vi) Educational Neglect;

(vii) Emotional Abuse;

(viii) Emotional Maltreatment;

(ix) Environmental Neglect;

(x) Failure to Protect;

(xi) Failure to Thrive;

(xii) Medical Neglect;

(xiii) Munchhausen Syndrome by Proxy;

(xiv) Non-Supervision;

(xv) Pediatric Condition Falsification;

(xvi) Physical Abuse;

(xvii) Physical Health;

(xviii) Physical Neglect;

(xix) Psychological Neglect;

(xx) Sibling or Child at Risk; and

(xxi) Unknown.

(b) The expungement will be approved only if:

(i) The original CPS case did not result in an ongoing case or removal;

(ii) Five years have passed since the case closure date with no subsequent CPS case, including unaccepted referrals; and

(iii) There was no criminal conviction for the same incident.

(c) Not eligible to make the request until a minimum of five years after the case closure date.

(4) Expungement Upon Request after 10 years:

(a) After ten years have passed since the case closure date, an individual may request an expungement on the following Supported General Findings:

(i) Child Endangerment;

(ii) Dealing in Material Harmful to a Child;

(iii) Dental Neglect;

(iv) Dependency;

(v) Domestic Violence Related Child Abuse;

(vi) Educational Neglect;

(vii) Emotional Abuse;

(viii) Emotional Maltreatment;

(ix) Environmental Neglect;

(x) Failure to Protect;

(xi) Failure to Thrive;

(xii) Fetal Exposure to Alcohol or other Harmful Substances;

(xiii) Medical Neglect;

(xiv) Munchhausen Syndrome by Proxy;

(xv) Non-Supervision;

(xvi) Pediatric Condition Falsification;

(xvii) Physical Abuse;

(xviii) Physical Health;

(xix) Physical Neglect;

(xx) Psychological Neglect;

(xxi) Sibling or Child at Risk; and

(xxii) Unknown.

(b) The expungement will only be approved if:

(i) The original CPS case did not result in an ongoing case or removal;

(ii) Ten years have passed since the case closure date with no subsequent CPS case, including unaccepted referrals; and

(iii) There was no criminal conviction for the same incident.

(c) Not eligible to make the request until a minimum of ten years after the case closure date.

(5) Allegations Never Eligible for Expungement:

(a) The following Supported or Unsupported allegations designated as Chronic and/or Severe and/or there was a criminal conviction for the same incident are never eligible for expungement:

(i) Abandonment;

(ii) Baby Doe;

(iii) Child Endangerment;

(iv) Chronic Abuse;

(v) Chronic Neglect;

(vi) Court Ordered;

(vii) Dealing in Material Harmful to a Child;

(viii) Dependency;

(ix) Domestic Violence Related Child Abuse;

(x) Educational Neglect;

(xi) Emotional Abuse;

(xii) Environmental Neglect;

(xiii) Failure to Protect;

(xiv) Failure to Thrive;

(xv) Fetal Addiction to alcohol or other substance;

(xvi) Fetal Exposure to Alcohol or other Harmful Substances;

(xvii) Juvenile Perpetrator- significant or non-significant risk of Sexual and/or Severe Physical Abuse;

(xviii) Labor Trafficking;

(xix) Lewdness;

(xx) Medical Neglect;

(xxi) Medical neglect resulting in death/disability/serious illness;

(xxii) Non-Supervision;

(xxiii) Pediatric Condition Falsification;

(xxiv) Physical Abuse;

(xxv) Physical Neglect;

(xxvi) Ritual Abuse;

(xxvii) Safe Relinquishment of a Newborn;

(xxviii) Severe Abuse;

(xxix) Severe Neglect;

(xxx) Sexual Abuse;

(xxxi) Sexual Exploitation;

(xxxii) Sexual Trafficking; and

(xxxiii) Sibling or Child at Risk.

(b) Any allegations with the following findings are never eligible for expungement:

(i) False Report;

(ii) Unable to Locate;

(iii) Unable to Complete; and

(iv) Substantiated by the Juvenile Court.

 

KEY: child abuse, expungement of records

Date of Enactment or Last Substantive Amendment: 2018

Authorizing, and Implemented or Interpreted Law: 62A-4a-102; 62A-4a-1008

---