Florida Senate - 2009                                     SB 126
       
       
       
       By Senator Dockery
       
       
       
       
       15-00303-09                                            2009126__
    1                        A bill to be entitled                      
    2         An act relating to the confidential records of
    3         children and vulnerable adults; creating s. 39.00145,
    4         F.S.; requiring that the case file of a child under
    5         the supervision or in the custody of the Department of
    6         Children and Family Services be maintained in a
    7         complete and accurate manner; specifying who has
    8         access to the case file and records in the file;
    9         authorizing the court to directly release the child's
   10         records to certain entities; providing that entities
   11         that have access to confidential information
   12         concerning a child may share it with other entities
   13         that provide services benefiting children; amending s.
   14         39.202, F.S.; limiting the public-records exemption
   15         provided for reports relating to child abandonment,
   16         abuse, or neglect to personally identifying
   17         information in the reports; revising the list of
   18         persons or entities that have access to such
   19         information; authorizing the secretary of the
   20         department to release certain records in the public
   21         domain; amending s. 415.107, F.S.; limiting the
   22         public-records exemption provided for reports relating
   23         to adult abuse, neglect, or exploitation to personally
   24         identifying information in the reports; revising the
   25         list of persons or entities that have access to such
   26         information; authorizing the secretary of the
   27         department to release certain records in the public
   28         domain; amending ss. 39.01 and 39.201, F.S.;
   29         conforming cross-references; providing an effective
   30         date.
   31         
   32  Be It Enacted by the Legislature of the State of Florida:
   33         
   34         Section 1. Section 39.00145, Florida Statutes, is created
   35  to read:
   36         39.00145Records concerning children.—The case file of
   37  every child under the supervision of or in the custody of the
   38  department, the department's authorized agents, or providers
   39  contracting with the department, including community-based care
   40  lead agencies and their subcontracted providers, must be
   41  maintained in a complete and accurate manner. Such file must
   42  contain the child's case plan required under part VIII of this
   43  chapter and the full name and street address of all shelters,
   44  foster parents, group homes, treatment facilities, or locations
   45  where the child is placed.
   46         (1)Notwithstanding any other provision of this chapter,
   47  all records in a child's case file must be made available for
   48  inspection without cost to the child who is the subject of the
   49  case file and the child's caregiver, guardian ad litem, or
   50  attorney. A request for inspection by the child's attorney must
   51  be submitted in writing.
   52         (a)The child and the child's caregiver, guardian ad litem,
   53  or attorney shall be provided any records in the case file or a
   54  complete and accurate copy of the records, at no cost, upon the
   55  request of that child or the child's caregiver, guardian ad
   56  litem, or attorney on behalf of the child.
   57         (b)The department shall release the information in a
   58  manner and setting that is appropriate to the age and maturity
   59  of the child and the nature of the information being released,
   60  which may include the release of such information in a
   61  therapeutic setting, if appropriate. This paragraph does not
   62  deny the child access to his or her records.
   63         (c)If a child or the child’s caregiver, guardian ad litem,
   64  or attorney requests access to the child’s case file, any person
   65  or entity that fails to provide records in the case file under
   66  assertion of a claim of exemption from the public-records
   67  requirements of chapter 119, or fails to provide access within a
   68  reasonable time, is subject to sanctions and penalties under s.
   69  119.10.
   70         (2)If a court determines that sharing information in the
   71  child's case file is necessary to ensure access to appropriate
   72  services for the child or for the safety of the child, the court
   73  may approve the release of confidential records or information
   74  contained in them. Any information that is released retains its
   75  confidential or exempt status.
   76         (3)The placement of a child in shelter care or a finding
   77  that a child is dependent pursuant to this chapter is a health
   78  and safety emergency for the purpose of disclosure of records
   79  under the Family Educational Rights and Privacy Act.
   80         (4)Notwithstanding any other provision of law, all state
   81  and local agencies and programs that provide services to
   82  children or that are responsible for a child's safety, including
   83  the Department of Juvenile Justice, the Department of Health,
   84  the Agency for Health Care Administration, the Agency for
   85  Persons with Disabilities, the Department of Education, the
   86  school districts, the Statewide Guardian Ad Litem Office, and
   87  any provider contracting with such agencies, may share with each
   88  other confidential records or information that is confidential
   89  or exempt from disclosure under chapter 119 if the records or
   90  information are reasonably necessary to ensure access to
   91  appropriate services for the child or for the safety of the
   92  child. However:
   93         (a)Records or information made confidential by federal law
   94  may not be shared.
   95         (b)This subsection does not apply to information
   96  concerning clients and records of certified domestic violence
   97  centers, which are confidential under s. 39.908 and privileged
   98  under s. 90.5036.
   99         Section 2. Subsections (1) and (2) of section 39.202,
  100  Florida Statutes, are amended, and subsection (9) is added to
  101  that section, to read:
  102         39.202 Confidentiality of reports and records in cases of
  103  child abuse or neglect.—
  104         (1)  All personal identifying information for the following
  105  persons contained in records held by the department relating to
  106  child abandonment, abuse, abandonment, or neglect is In order to
  107  protect the rights of the child and the child's parents or other
  108  persons responsible for the child's welfare, All records held by
  109  the department concerning reports of child abandonment, abuse,
  110  or neglect, including reports made to the central abuse hotline
  111  and all records generated as a result of such reports, shall be
  112  confidential and exempt from the provisions of s. 119.07(1): and
  113  shall not be disclosed except as specifically authorized by this
  114  chapter. Such exemption from s. 119.07(1) applies to information
  115  in the possession of those entities granted access as set forth
  116  in this section.
  117         (a)The child or the child's siblings;
  118         (b)The child's caregiver, unless the caregiver is arrested
  119  as a result of the report of child abuse, abandonment, or
  120  neglect or is the subject of an injunction issued pursuant to s.
  121  39.504; and
  122         (c)The reporter of the alleged abuse, abandonment, or
  123  neglect.
  124         (2) Except as provided in subsection (4), access to the
  125  personal identifying information of individuals listed in
  126  subsection (1) such records, excluding the name of the reporter
  127  which shall be released only as provided in subsection (5),
  128  shall be granted only to the following persons, officials, and
  129  agencies:
  130         (a)Any employee, authorized agent, or provider contracting
  131  with the department; any agency that provides services to the
  132  child or the child’s family; and any federal, state, or local
  133  governmental entity that needs the information to carry out its
  134  legal responsibility to protect the child from abuse,
  135  abandonment, or neglect.
  136         (a)Employees, authorized agents, or contract providers of
  137  the department, the Department of Health, the Agency for Persons
  138  with Disabilities, or county agencies responsible for carrying
  139  out:
  140         1.Child or adult protective investigations;
  141         2.Ongoing child or adult protective services;
  142         3.Early intervention and prevention services;
  143         4.Healthy Start services;
  144         5.Licensure or approval of adoptive homes, foster homes,
  145  child care facilities, facilities licensed under chapter 393, or
  146  family day care homes or informal child care providers who
  147  receive subsidized child care funding, or other homes used to
  148  provide for the care and welfare of children; or
  149         6.Services for victims of domestic violence when provided
  150  by certified domestic violence centers working at the
  151  department's request as case consultants or with shared clients.
  152  Also, employees or agents of the Department of Juvenile Justice
  153  responsible for the provision of services to children, pursuant
  154  to chapters 984 and 985.
  155         (b)Criminal justice agencies of appropriate jurisdiction.
  156         (c)The state attorney of the judicial circuit in which the
  157  child resides or in which the alleged abuse or neglect occurred.
  158         (b)(d) The parent or legal custodian of any child who is
  159  alleged to have been abused, abandoned, or neglected, and the
  160  child, and their attorneys, including any attorney representing
  161  a child in civil or criminal proceedings. This access must shall
  162  be made available within no later than 30 days after the
  163  department receives the initial report of abuse, neglect, or
  164  abandonment. However, any information otherwise made
  165  confidential or exempt by law may shall not be released pursuant
  166  to this paragraph.
  167         (c)(e) Any person alleged in the report as having caused
  168  the abuse, abandonment, or neglect of a child. This access must
  169  shall be made available within no later than 30 days after the
  170  department receives the initial report of abuse, abandonment, or
  171  neglect and, if when the alleged perpetrator is not a parent, is
  172  shall be limited to information involving the protective
  173  investigation only and may shall not include any information
  174  relating to subsequent dependency proceedings. However, any
  175  information otherwise made confidential or exempt by law may
  176  shall not be released pursuant to this paragraph.
  177         (d)(f) A court upon its finding that access to such
  178  information records may be necessary for determining the
  179  determination of an issue before the court.; However, such
  180  access is shall be limited to inspection in camera, unless the
  181  court determines that public disclosure of the information
  182  contained therein is necessary for the resolution of an issue
  183  then pending before it.
  184         (e)(g) A grand jury, by subpoena, upon determining its
  185  determination that access to such information records is
  186  necessary in the conduct of its official business.
  187         (h)Any appropriate official of the department or the
  188  Agency for Persons with Disabilities who is responsible for:
  189         1.Administration or supervision of the department's
  190  program for the prevention, investigation, or treatment of child
  191  abuse, abandonment, or neglect, or abuse, neglect, or
  192  exploitation of a vulnerable adult, when carrying out his or her
  193  official function;
  194         2.Taking appropriate administrative action concerning an
  195  employee of the department or the agency who is alleged to have
  196  perpetrated child abuse, abandonment, or neglect, or abuse,
  197  neglect, or exploitation of a vulnerable adult; or
  198         3.Employing and continuing employment of personnel of the
  199  department or the agency.
  200         (f)(i) Any person authorized by the department who is
  201  engaged in the use of such records or information for bona fide
  202  research, statistical, or audit purposes. Such individual or
  203  entity must shall enter into a privacy and security agreement
  204  with the department and shall comply with all laws and rules
  205  governing the use of such records and information for research
  206  and statistical purposes. The identifying information must
  207  identifying the subjects of such records or information shall be
  208  treated as confidential by the researcher and may shall not be
  209  released in any form.
  210         (g)(j) The Division of Administrative Hearings for purposes
  211  of any administrative challenge.
  212         (h)(k) Any appropriate official of a Florida advocacy
  213  council investigating a report of known or suspected child
  214  abuse, abandonment, or neglect.;
  215         (i) The Auditor General or the Office of Program Policy
  216  Analysis and Government Accountability for the purpose of
  217  conducting audits or examinations pursuant to law.; or
  218         (j) The guardian ad litem for the child.
  219         (k)(l) Employees or agents of an agency of another state
  220  that has comparable jurisdiction to the agencies jurisdiction
  221  described in paragraph (a).
  222         (m)The Public Employees Relations Commission for the sole
  223  purpose of obtaining evidence for appeals filed pursuant to s.
  224  447.207. Records may be released only after deletion of all
  225  information which specifically identifies persons other than the
  226  employee.
  227         (n)Employees or agents of the Department of Revenue
  228  responsible for child support enforcement activities.
  229         (l)(o) Any person in the event of the death of a child
  230  determined to be a result of abuse, abandonment, or neglect.
  231  Information identifying the person reporting abuse, abandonment,
  232  or neglect shall not be released. Any information otherwise made
  233  confidential or exempt by law may shall not be released pursuant
  234  to this paragraph.
  235         (m)(p) The principal of a public school, private school, or
  236  charter school where the child is a student. Identifying
  237  information contained in the records that which the principal
  238  determines are necessary for a school employee to effectively
  239  provide a student with educational services may be released to
  240  that employee.
  241         (n)(q) Staff of a children's advocacy center that is
  242  established and operated under s. 39.3035.
  243         (o)Persons with whom the department is seeking to place
  244  the child or placement has been granted, including foster
  245  parents for whom an approved home study has been conducted, the
  246  designee of a licensed residential group home described in s.
  247  39.523, an approved relative or nonrelative with whom a child is
  248  placed pursuant to s. 39.402(4), preadoptive parents for whom a
  249  favorable preliminary adoptive home study has been conducted,
  250  adoptive parents, or an adoption entity acting on behalf of
  251  preadoptive or adoptive parents.
  252         (9)Notwithstanding any other provision of law, the
  253  secretary may release any record reasonably related to a case
  254  that is already in the public domain, but must redact the
  255  identity of the child unless the child’s name is also in the
  256  public domain in the context of the case or the child is already
  257  reasonably identifiable from information in the public domain.
  258         Section 3. Section 415.107, Florida Statutes, is amended to
  259  read:
  260         415.107 Confidentiality of reports and records.—
  261         (1) All personal identifying information for the following
  262  persons contained in records relating to the abuse, neglect, or
  263  exploitation of a vulnerable adult is In order to protect the
  264  rights of the individual or other persons responsible for the
  265  welfare of a vulnerable adult, all records concerning reports of
  266  abuse, neglect, or exploitation of the vulnerable adult,
  267  including reports made to the central abuse hotline, and all
  268  records generated as a result of such reports shall be
  269  confidential and exempt from s. 119.07(1): and may not be
  270  disclosed except as specifically authorized by ss. 415.101
  271  415.113.
  272         (a)The adult victim;
  273         (b)The adult victim's guardian or legal counsel unless the
  274  guardian or legal counsel is arrested as a result of the report
  275  of abuse, neglect, or exploitation or is the subject of an
  276  injunction issued by a court; and
  277         (c)The reporter of the alleged abuse, neglect, or
  278  exploitation.
  279         (2)Upon the request of the committee chairperson, access
  280  to all records shall be granted to staff of the legislative
  281  committees with jurisdiction over issues and services related to
  282  vulnerable adults, or over the department. All confidentiality
  283  provisions that apply to the Department of Children and Family
  284  Services continue to apply to the records made available to
  285  legislative staff under this subsection.
  286         (2)(3) Access to personal identifying information all
  287  records, excluding the name of the reporter which shall be
  288  released only as provided in subsection (5) (6), shall be
  289  granted only to the following persons, officials, and agencies:
  290         (a) Employees, authorized agents, and providers contracting
  291  with the department; any agency that provides services to
  292  vulnerable adults; and any federal, state, or local governmental
  293  entity that needs the information to carry out its legal
  294  responsibility to protect the vulnerable adult from abuse,
  295  neglect, or exploitation or agents of the department, the Agency
  296  for Persons with Disabilities, the Agency for Health Care
  297  Administration, or the Department of Elderly Affairs who are
  298  responsible for carrying out protective investigations, ongoing
  299  protective services, or licensure or approval of nursing homes,
  300  assisted living facilities, adult day care centers, adult
  301  family-care homes, home care for the elderly, hospices,
  302  residential facilities licensed under chapter 393, or other
  303  facilities used for the placement of vulnerable adults.
  304         (b)A criminal justice agency investigating a report of
  305  known or suspected abuse, neglect, or exploitation of a
  306  vulnerable adult.
  307         (c)The state attorney of the judicial circuit in which the
  308  vulnerable adult resides or in which the alleged abuse, neglect,
  309  or exploitation occurred.
  310         (b)(d)The Any victim;, the victim's guardian, caregiver,
  311  or legal counsel;, and any person who the department has
  312  determined might be abusing, neglecting, or exploiting the
  313  victim.
  314         (c)(e) A court, by subpoena, upon its finding that access
  315  to such information records may be necessary for determining the
  316  determination of an issue before the court; however, such access
  317  is must be limited to inspection in camera, unless the court
  318  determines that public disclosure of the information contained
  319  in such records is necessary for the resolution of an issue then
  320  pending before it.
  321         (d)(f) A grand jury, by subpoena, upon determining its
  322  determination that access to such information records is
  323  necessary in the conduct of its official business.
  324         (e)(g) Any appropriate official of the Florida advocacy
  325  council or long-term care ombudsman council investigating a
  326  report of known or suspected abuse, neglect, or exploitation of
  327  a vulnerable adult.
  328         (h)Any appropriate official of the department, the Agency
  329  for Persons with Disabilities, the Agency for Health Care
  330  Administration, or the Department of Elderly Affairs who is
  331  responsible for:
  332         1.Administration or supervision of the programs for the
  333  prevention, investigation, or treatment of abuse, neglect, or
  334  exploitation of vulnerable adults when carrying out an official
  335  function; or
  336         2.Taking appropriate administrative action concerning an
  337  employee alleged to have perpetrated abuse, neglect, or
  338  exploitation of a vulnerable adult in an institution.
  339         (i)Any person engaged in bona fide research or auditing.
  340  However, information identifying the subjects of the report must
  341  not be made available to the researcher.
  342         (f)(j) Employees or agents of an agency of another state
  343  that has jurisdiction comparable to the jurisdiction described
  344  in paragraph (a).
  345         (k)The Public Employees Relations Commission for the sole
  346  purpose of obtaining evidence for appeals filed pursuant to s.
  347  447.207. Records may be released only after deletion of all
  348  information that specifically identifies persons other than the
  349  employee.
  350         (g)(l) Any person in the event of the death of a vulnerable
  351  adult determined to be a result of abuse, neglect, or
  352  exploitation. Information identifying the person reporting
  353  abuse, neglect, or exploitation shall not be released. Any
  354  information otherwise made confidential or exempt by law may
  355  shall not be released pursuant to this paragraph.
  356         (4)The Department of Health, the Department of Business
  357  and Professional Regulation, and the Agency for Health Care
  358  Administration may have access to a report, excluding the name
  359  of the reporter, when considering disciplinary action against a
  360  licensee or certified nursing assistant pursuant to allegations
  361  of abuse, neglect, or exploitation.
  362         (3)(5) The department may release to any professional
  363  person such personal identifying information as is necessary for
  364  the diagnosis and treatment of, and service delivery to, a
  365  vulnerable adult or the person perpetrating the abuse, neglect,
  366  or exploitation.
  367         (4)(6) The identity of any person reporting abuse, neglect,
  368  or exploitation of a vulnerable adult may not be released,
  369  without that person's written consent, to any person other than
  370  employees of the department responsible for protective services,
  371  the central abuse hotline, or the appropriate state attorney or
  372  law enforcement agency. This subsection grants protection only
  373  for the person who reported the abuse, neglect, or exploitation
  374  and protects only the fact that the person is the reporter. This
  375  subsection does not prohibit the subpoena of a person reporting
  376  the abuse, neglect, or exploitation if when deemed necessary by
  377  the state attorney or the department to protect a vulnerable
  378  adult who is the subject of a report, if the fact that the
  379  person made the report is not disclosed.
  380         (5)(7) For the purposes of this section, the term “access
  381  to personal identifying information” means information a visual
  382  inspection or copy of the hard-copy record maintained in the
  383  district.
  384         (6)(8)Personal identifying information in the central
  385  abuse hotline may not be used for employment screening.
  386         (7)Notwithstanding any other provision of law, the
  387  secretary may release any record reasonably related to a case
  388  that is already in the public domain, but must redact the
  389  identity of the victim unless the victim’s name is also in the
  390  public domain in the context of the case or is already
  391  reasonably identifiable from information in the public domain.
  392         Section 4. Subsection (10) of section 39.01, Florida
  393  Statutes, is amended to read:
  394         39.01 Definitions.—When used in this chapter, unless the
  395  context otherwise requires:
  396         (10) “Caregiver” means the parent, legal custodian,
  397  permanent guardian, adult household member, or other person
  398  responsible for a child's welfare as defined in subsection (47)
  399  (46).
  400         Section 5. Subsection (6) of section 39.201, Florida
  401  Statutes, is amended to read:
  402         39.201 Mandatory reports of child abuse, abandonment, or
  403  neglect; mandatory reports of death; central abuse hotline.—
  404         (6) Information in the central abuse hotline may not be
  405  used for employment screening, except as provided in s.
  406  39.202(2)(a) and (h). Information in the central abuse hotline
  407  and the department's automated abuse information system may be
  408  used by the department, its authorized agents or contract
  409  providers, the Department of Health, or county agencies as part
  410  of the licensure or registration process provided in pursuant to
  411  ss. 402.301-402.319 and ss. 409.175-409.176.
  412         Section 6. This act shall take effect July 1, 2009.