Senate Bill sb2294
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Florida Senate - 2007 SB 2294
By Senator Rich
34-869B-07
1 A bill to be entitled
2 An act relating to rights of children and
3 youth; amending s. 39.202, F.S.; providing
4 applicability of ch. 119, F.S., to accessing
5 records relating to child abuse and neglect;
6 providing for access to a child's case-file
7 records by specified persons; providing for
8 sanctions and penalties for refusal to provide
9 such access; providing access to records for
10 community-based care lead agencies and
11 subcontracted providers; providing additional
12 circumstances for the release of otherwise
13 confidential records; amending s. 39.4085,
14 F.S.; revising legislative findings and intent;
15 establishing rights for children in shelter and
16 foster care; deleting goals; prohibiting
17 certain causes of action; providing for
18 continuation of certain rights and remedies
19 established in state or federal law; amending
20 s. 39.201, F.S.; conforming a cross-reference;
21 providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Section 39.202, Florida Statutes, is
26 amended to read:
27 39.202 Confidentiality of reports and records in cases
28 of child abuse or neglect.--
29 (1) In order to protect the rights of the child and
30 the child's parents or other persons responsible for the
31 child's welfare, all records held by the department concerning
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1 reports of child abandonment, abuse, or neglect, including
2 reports made to the central abuse hotline and all records
3 generated as a result of such reports, shall be confidential
4 and exempt from the provisions of s. 119.07(1) and may shall
5 not be disclosed except as specifically authorized by this
6 chapter. Records disclosed to an agency, as defined in s.
7 119.011, shall remain confidential and exempt as provided in
8 this section. Records authorized to be disclosed under this
9 section shall be released in accordance with s. 119.07. Such
10 exemption from s. 119.07(1) applies to information in the
11 possession of those entities granted access as set forth in
12 this section.
13 (2) A child has an absolute right to view and copy his
14 or her records. When a child or a child's attorney or guardian
15 ad litem requests access to the child's records, any person
16 failing to provide those records under assertion of a claim of
17 confidentiality or a public-records exemption is subject to
18 sanctions and penalties under s. 119.10.
19 (3)(2) Except as provided in subsection (5) (4),
20 access to such records, excluding the name of the reporter
21 which shall be released only as provided in subsection (6)
22 (5), shall be granted only to the following persons,
23 officials, and agencies:
24 (a) Employees, authorized agents, or contract
25 providers of the department, including community-based care
26 lead agencies and their subcontracted providers, the
27 Department of Health, the Agency for Persons with
28 Disabilities, or county agencies responsible for carrying out:
29 1. Child or adult protective investigations;
30 2. Ongoing child or adult protective services;
31 3. Early intervention and prevention services;
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1 4. Healthy Start services;
2 5. Licensure or approval of adoptive homes, foster
3 homes, child care facilities, facilities licensed under
4 chapter 393, or family day care homes or informal child care
5 providers who receive subsidized child care funding, or other
6 homes used to provide for the care and welfare of children; or
7 6. Services for victims of domestic violence when
8 provided by certified domestic violence centers working at the
9 department's request as case consultants or with shared
10 clients; or.
11 7. Services to children in programs provided by the
12 Department of Juvenile Justice or its contractors pursuant to
13 chapters 984 and 985.
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15 Also, employees or agents of the Department of Juvenile
16 Justice responsible for the provision of services to children,
17 pursuant to chapters 984 and 985.
18 (b) Criminal justice agencies of appropriate
19 jurisdiction.
20 (c) The state attorney of the judicial circuit in
21 which the child resides or in which the alleged abuse or
22 neglect occurred.
23 (d) The child's school and physical health care
24 provider when the sharing of information is determined by the
25 court to be necessary to ensure access to appropriate services
26 or for the safety of the child.
27 (e)(d) The parent or legal custodian of any child who
28 is alleged to have been abused, abandoned, or neglected, and
29 the child, and their attorneys, including any attorney
30 representing a child in civil or criminal proceedings. This
31 access shall be made available no later than 30 days after the
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1 department receives the initial report of abuse, neglect, or
2 abandonment. However, any information otherwise made
3 confidential or exempt by law shall not be released pursuant
4 to this paragraph.
5 (f)(e) Any person alleged in the report as having
6 caused the abuse, abandonment, or neglect of a child. This
7 access shall be made available no later than 30 days after the
8 department receives the initial report of abuse, abandonment,
9 or neglect and, when the alleged perpetrator is not a parent,
10 shall be limited to information involving the protective
11 investigation only and shall not include any information
12 relating to subsequent dependency proceedings. However, any
13 information otherwise made confidential or exempt by law shall
14 not be released pursuant to this paragraph.
15 (g)(f) A court upon its finding that access to such
16 records may be necessary for the determination of an issue
17 before the court; however, such access shall be limited to
18 inspection in camera, unless the court determines that public
19 disclosure of the information contained therein is necessary
20 for the resolution of an issue then pending before it.
21 (h)(g) A grand jury, by subpoena, upon its
22 determination that access to such records is necessary in the
23 conduct of its official business.
24 (i)(h) Any appropriate official of the department or
25 the Agency for Persons with Disabilities who is responsible
26 for:
27 1. Administration or supervision of the department's
28 program for the prevention, investigation, or treatment of
29 child abuse, abandonment, or neglect, or abuse, neglect, or
30 exploitation of a vulnerable adult, when carrying out his or
31 her official function;
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1 2. Taking appropriate administrative action concerning
2 an employee of the department or the agency who is alleged to
3 have perpetrated child abuse, abandonment, or neglect, or
4 abuse, neglect, or exploitation of a vulnerable adult; or
5 3. Employing and continuing employment of personnel of
6 the department or the agency.
7 (j)(i) Any person authorized by the department who is
8 engaged in the use of such records or information for bona
9 fide research, statistical, or audit purposes. Such individual
10 or entity shall enter into a privacy and security agreement
11 with the department and shall comply with all laws and rules
12 governing the use of such records and information for research
13 and statistical purposes. Information identifying the subjects
14 of such records or information shall be treated as
15 confidential by the researcher and shall not be released in
16 any form.
17 (k)(j) The Division of Administrative Hearings for
18 purposes of any administrative challenge.
19 (l)(k) Any appropriate official of a Florida advocacy
20 council investigating a report of known or suspected child
21 abuse, abandonment, or neglect; the Auditor General or the
22 Office of Program Policy Analysis and Government
23 Accountability for the purpose of conducting audits or
24 examinations pursuant to law; or the guardian ad litem for the
25 child.
26 (m)(l) Employees or agents of an agency of another
27 state that has comparable jurisdiction to the jurisdiction
28 described in paragraph (a).
29 (n)(m) The Public Employees Relations Commission for
30 the sole purpose of obtaining evidence for appeals filed
31 pursuant to s. 447.207. Records may be released only after
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1 deletion of all information which specifically identifies
2 persons other than the employee.
3 (o)(n) Employees or agents of the Department of
4 Revenue responsible for child support enforcement activities.
5 (p)(o) Any person in the event of the death of a child
6 determined to be a result of abuse, abandonment, or neglect.
7 Information identifying the person reporting abuse,
8 abandonment, or neglect shall not be released. Any information
9 otherwise made confidential or exempt by law shall not be
10 released pursuant to this paragraph.
11 (q)(p) The principal of a public school, private
12 school, or charter school where the child is a student.
13 Information contained in the records which the principal
14 determines are necessary for a school employee to effectively
15 provide a student with educational services may be released to
16 that employee.
17 (r)(q) Staff of a children's advocacy center that is
18 established and operated under s. 39.3035.
19 (4)(3) The department may release to professional
20 persons such information as is necessary for the diagnosis and
21 treatment of the child or the person perpetrating the abuse or
22 neglect.
23 (5)(4) Notwithstanding any other provision of law,
24 when a child under investigation or supervision of the
25 department or its contracted service providers is determined
26 to be missing, the following shall apply:
27 (a) The department may release the following
28 information to the public when it believes the release of the
29 information is likely to assist efforts in locating the child
30 or to promote the safety or well-being of the child:
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1 1. The name of the child and the child's date of
2 birth;
3 2. A physical description of the child, including at a
4 minimum the height, weight, hair color, eye color, gender, and
5 any identifying physical characteristics of the child; and
6 3. A photograph of the child.
7 (b) With the concurrence of the law enforcement agency
8 primarily responsible for investigating the incident, the
9 department may release any additional information it believes
10 likely to assist efforts in locating the child or to promote
11 the safety or well-being of the child.
12 (c) The law enforcement agency primarily responsible
13 for investigating the incident may release any information
14 received from the department regarding the investigation, if
15 it believes the release of the information is likely to assist
16 efforts in locating the child or to promote the safety or
17 well-being of the child.
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19 The good faith publication or release of this information by
20 the department, a law enforcement agency, or any recipient of
21 the information as specifically authorized by this subsection
22 shall not subject the person, agency or entity releasing the
23 information to any civil or criminal penalty. This subsection
24 does not authorize the release of the name of the reporter,
25 which may be released only as provided in subsection (6) (5).
26 (6)(5) The name of any person reporting child abuse,
27 abandonment, or neglect may not be released to any person
28 other than employees of the department responsible for child
29 protective services, the central abuse hotline, law
30 enforcement, the child protection team, or the appropriate
31 state attorney, without the written consent of the person
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1 reporting. This does not prohibit the subpoenaing of a person
2 reporting child abuse, abandonment, or neglect when deemed
3 necessary by the court, the state attorney, or the department,
4 provided the fact that such person made the report is not
5 disclosed. Any person who reports a case of child abuse or
6 neglect may, at the time he or she makes the report, request
7 that the department notify him or her that a child protective
8 investigation occurred as a result of the report. Any person
9 specifically listed in s. 39.201(1) who makes a report in his
10 or her official capacity may also request a written summary of
11 the outcome of the investigation. The department shall mail
12 such a notice to the reporter within 10 days after completing
13 the child protective investigation.
14 (7)(6) All records and reports of the child protection
15 team of the Department of Health are confidential and exempt
16 from the provisions of ss. 119.07(1) and 456.057, and shall
17 not be disclosed, except, upon request, to the state attorney,
18 law enforcement, the department, and necessary professionals,
19 in furtherance of the treatment or additional evaluative needs
20 of the child, by order of the court, or to health plan payors,
21 limited to that information used for insurance reimbursement
22 purposes.
23 (8)(7) The department shall make and keep reports and
24 records of all cases under this chapter relating to child
25 abuse, abandonment, and neglect and shall preserve the records
26 pertaining to a child and family until 7 years after the last
27 entry was made or until the child is 18 years of age,
28 whichever date is first reached, and may then destroy the
29 records. Department records required by this chapter relating
30 to child abuse, abandonment, and neglect may be inspected only
31 upon order of the court or as provided for in this section.
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1 Any person may petition the circuit court, in accordance with
2 s. 119.11, for access to records made confidential and exempt
3 under this section.
4 (9)(8) A person who knowingly or willfully makes
5 public or discloses to any unauthorized person any
6 confidential information contained in the central abuse
7 hotline is subject to the penalty provisions of s. 39.205.
8 This notice shall be prominently displayed on the first sheet
9 of any documents released pursuant to this section.
10 Section 2. Section 39.4085, Florida Statutes, is
11 amended to read:
12 39.4085 Legislative findings and declaration of
13 intent; rights of for goals for dependent children.--
14 (1) The Legislature finds and declares that the design
15 and delivery of child welfare services should be directed by
16 the principle that the health and safety of children should be
17 of paramount concern. and, therefore, establishes the
18 following goals for children in shelter or foster care: The
19 Legislature therefore creates a Bill of Rights for all
20 children in shelter or foster care to establish what is
21 expected from caregivers, judges, social workers, guardians ad
22 litem, lawyers, and other persons who are responsible for the
23 well-being of a child taken from the custody of parents or
24 other legal custodians and placed in shelter or foster care.
25 (2) Each dependent child shall be given a copy of the
26 following rights, in age-appropriate language, when the child
27 enters the shelter or foster care system or moves to a
28 different placement in that system:
29 (a) To be treated with dignity and have all of your
30 rights as a child in the custody of the state respected by
31 everyone caring for you.
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1 (b) To have your privacy protected, including the
2 right to have your personal possessions safe and brought to
3 you whenever you move to a different place; to send and
4 receive unopened mail, unless a judge orders someone else to
5 open your mail in order to ensure your safety; and to have
6 access to a telephone that you can use to make calls, unless
7 otherwise ordered by a judge.
8 (c) To expect that persons from the department who
9 come to the home of your parents or legal custodians to
10 investigate whether you should be put in the department's
11 custody will have the professional training and experience to
12 make the most appropriate decision.
13 (d) To be permitted to stay with your parents or legal
14 custodians unless the professional from the department
15 determines that you must be removed to protect your physical,
16 mental, or emotional well-being and safety.
17 (e) To be evaluated in order to determine if you are
18 having problems, are healthy, or doing well in school and
19 whether you need to be treated by a doctor or mental health
20 professional and, if indicated, to receive services from
21 persons who have the professional training and experience to
22 provide the help you need.
23 (f) To have your photograph and fingerprints taken and
24 your birth certificate and health insurance information
25 responsibly maintained and accessible, kept for your use by
26 the department, and provided to you when you leave state
27 custody.
28 (g) To live in a safe home with a family that does not
29 have more children than the home is licensed to serve, unless
30 you are placed with your brothers and sisters in a group home
31 or in therapeutic care that is designed to meet your
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1 individual needs, and to remain in this place without being
2 moved to another home unless the department informs you that
3 it is moving you to a new home and helps you obtain the
4 assistance you need in order to be comfortable in the new
5 home.
6 (h) To be put in a safe home where no one will touch
7 you, scare you, hurt you, or get you into trouble if you tell
8 someone that you are having a problem or that your rights are
9 not being protected.
10 (i) To be put in a home where the parents or
11 caregivers know and understand your personal history, needs,
12 and problems.
13 (j) To participate with your caregivers and
14 professionals in putting together a case plan to address any
15 of your needs or behaviors that could present a risk to you or
16 others.
17 (k) To participate in putting together your case plan
18 and to make sure that the plan addresses your needs and those
19 of your family; to have the plan and all of its service
20 recommendations explained to you in a manner that respects
21 your race and culture; and to have the opportunity to provide
22 your opinion about things in the plan which you do not like
23 and to have the reasons for any responses to your opinion
24 explained to you.
25 (l) To make sure that your case plan and services will
26 enable you to be reunited with your family or legal custodian
27 as soon as the judge permits and that your safety and
28 well-being are ensured, and to be told that you have a right
29 to a family and should not have to deal with long delays in
30 your case. Although some delays may be necessary and
31 inevitable, you should be informed about the reason for such
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1 delays and asked about any concerns or opinions you may have
2 in your court case.
3 (m) To have regular contact with your social worker,
4 including meeting at least once a month with you alone and
5 meeting with your foster parent.
6 (n) To be placed in the same home as your siblings
7 and, if this is not possible, to have at least weekly visits
8 with your siblings which allow private contact, unless the
9 judge orders otherwise.
10 (o) To have at least one visit each month with your
11 parents, unless the judge orders otherwise.
12 (p) To attend school and have a minimum of disruptions
13 for court or other meetings related to your case; to have a
14 referral to a child study team if you aren't making progress
15 in school and receive special education services if needed; to
16 have a surrogate parent appointed if your parents cannot make
17 educational decisions for you; and to have your school records
18 shared with your community-based care lead agency in order to
19 make sure that the agency is aware of your progress in school
20 and can obtain the help you need if you are having problems.
21 (q) To be able to register a complaint or compliment
22 with the department about the care provided by your foster
23 parents, social workers, or other persons providing services
24 to you, and to be able to register a complaint or compliment
25 with your community-based care lead agency and be able to have
26 someone, including your lawyer or guardian ad litem, represent
27 you in addressing your grievance.
28 (r) To be able to attend meetings or go to court when
29 decisions are being made about you and talk to the judge or
30 other persons who are making such decisions, unless you would
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1 prefer not to appear or the judge decides that it is not in
2 your best interests to appear in court.
3 (s) To have a guardian ad litem appointed to represent
4 your best interests to the judge, to inform them what your
5 wishes are, and to have an attorney of your choice or one
6 appointed by the judge to represent any legal interests you
7 might have. Your guardian ad litem and attorney should have
8 the immediate and unlimited ability to meet with you, and no
9 one should attempt to discourage you from talking to your
10 guardian ad litem or attorney.
11 (t) To make sure that all of your records are
12 complete, accurate, and up to date and that your guardian ad
13 litem and attorney have access to and can review your records
14 free of charge.
15 (u) To participate in school and community activities
16 and have an agreement with your foster parents about
17 participation in these and other activities, opportunities,
18 and responsibilities that the department calls "normalcy."
19 (v) To be able to have contact with other children in
20 the foster care system so that you can organize as a group in
21 order to advocate for services, living conditions, and
22 improvements in the system, and to provide support to one
23 another while in the system.
24 (w) To have access to all state and federal programs,
25 such as Medicaid, federal Supplemental Security Income, and
26 any other federal, state, or community programs for children
27 who are developmentally, emotionally, or behaviorally
28 disabled, as needed and without unreasonable delay.
29 (x) To see a doctor, dentist, and eye doctor when
30 needed.
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1 (y) To attend the department's independent living
2 program classes and activities when you are old enough; to
3 participate in putting together your transitional plan that
4 has your own educational and career goals; and to be given an
5 explanation of your rights, responsibilities, and
6 opportunities under the department's Road-to-Independence
7 Program.
8 (1) To receive a copy of this act and have it fully
9 explained to them when they are placed in the custody of the
10 department.
11 (2) To enjoy individual dignity, liberty, pursuit of
12 happiness, and the protection of their civil and legal rights
13 as persons in the custody of the state.
14 (3) To have their privacy protected, have their
15 personal belongings secure and transported with them, and,
16 unless otherwise ordered by the court, have uncensored
17 communication, including receiving and sending unopened
18 communications and having access to a telephone.
19 (4) To have personnel providing services who are
20 sufficiently qualified and experienced to assess the risk
21 children face prior to removal from their homes and to meet
22 the needs of the children once they are in the custody of the
23 department.
24 (5) To remain in the custody of their parents or legal
25 custodians unless and until there has been a determination by
26 a qualified person exercising competent professional judgment
27 that removal is necessary to protect their physical, mental,
28 or emotional health or safety.
29 (6) To have a full risk, health, educational, medical
30 and psychological screening and, if needed, assessment and
31 testing upon adjudication into foster care; and to have their
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1 photograph and fingerprints included in their case management
2 file.
3 (7) To be referred to and receive services, including
4 necessary medical, emotional, psychological, psychiatric, and
5 educational evaluations and treatment, as soon as practicable
6 after identification of the need for such services by the
7 screening and assessment process.
8 (8) To be placed in a home with no more than one other
9 child, unless they are part of a sibling group.
10 (9) To be placed away from other children known to
11 pose a threat of harm to them, either because of their own
12 risk factors or those of the other child.
13 (10) To be placed in a home where the shelter or
14 foster caregiver is aware of and understands the child's
15 history, needs, and risk factors.
16 (11) To be the subject of a plan developed by the
17 counselor and the shelter or foster caregiver to deal with
18 identified behaviors that may present a risk to the child or
19 others.
20 (12) To be involved and incorporated, where
21 appropriate, in the development of the case plan, to have a
22 case plan which will address their specific needs, and to
23 object to any of the provisions of the case plan.
24 (13) To receive meaningful case management and
25 planning that will quickly return the child to his or her
26 family or move the child on to other forms of permanency.
27 (14) To receive regular communication with a
28 caseworker, at least once a month, which shall include meeting
29 with the child alone and conferring with the shelter or foster
30 caregiver.
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1 (15) To enjoy regular visitation, at least once a
2 week, with their siblings unless the court orders otherwise.
3 (16) To enjoy regular visitation with their parents,
4 at least once a month, unless the court orders otherwise.
5 (17) To receive a free and appropriate education;
6 minimal disruption to their education and retention in their
7 home school, if appropriate; referral to the child study team;
8 all special educational services, including, where
9 appropriate, the appointment of a parent surrogate; the
10 sharing of all necessary information between the school board
11 and the department, including information on attendance and
12 educational progress.
13 (18) To be able to raise grievances with the
14 department over the care they are receiving from their
15 caregivers, caseworkers, or other service providers.
16 (19) To be heard by the court, if appropriate, at all
17 review hearings.
18 (20) To have a guardian ad litem appointed to
19 represent, within reason, their best interests and, where
20 appropriate, an attorney ad litem appointed to represent their
21 legal interests; the guardian ad litem and attorney ad litem
22 shall have immediate and unlimited access to the children they
23 represent.
24 (21) To have all their records available for review by
25 their guardian ad litem and attorney ad litem if they deem
26 such review necessary.
27 (22) To organize as a group for purposes of ensuring
28 that they receive the services and living conditions to which
29 they are entitled and to provide support for one another while
30 in the custody of the department.
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1 (23) To be afforded prompt access to all available
2 state and federal programs, including, but not limited to:
3 Early Periodic Screening, Diagnosis, and Testing (EPSDT)
4 services, developmental services programs, Medicare and
5 supplemental security income, Children's Medical Services, and
6 programs for severely emotionally disturbed children.
7
8 The provisions of this section establish goals and not rights.
9 (3) Nothing in this section shall be interpreted as
10 requiring the delivery of any particular service or level of
11 service in excess of existing appropriations. A No person does
12 not shall have a cause of action against the state or any of
13 its subdivisions, agencies, contractors, subcontractors, or
14 agents, based upon the adoption of or failure of the
15 Legislature to provide adequate funding for the achievement of
16 these goals by the Legislature. This section does not Nothing
17 herein shall require the expenditure of funds to implement the
18 rights to meet the goals established in this section herein
19 except funds specifically appropriated for such purpose;
20 however, if a right specified in this section is established
21 elsewhere in state or federal law, this section does not
22 abrogate that right or any potential remedy otherwise
23 available.
24 Section 3. Subsection (6) of section 39.201, Florida
25 Statutes, is amended to read:
26 39.201 Mandatory reports of child abuse, abandonment,
27 or neglect; mandatory reports of death; central abuse
28 hotline.--
29 (6) Information in the central abuse hotline may not
30 be used for employment screening, except as provided in s.
31 39.202(3)(a) s. 39.202(2)(a) and (i) (h). Information in the
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1 central abuse hotline and the department's automated abuse
2 information system may be used by the department, its
3 authorized agents or contract providers, the Department of
4 Health, or county agencies as part of the licensure or
5 registration process pursuant to ss. 402.301-402.319 and ss.
6 409.175-409.176.
7 Section 4. This act shall take effect July 1, 2007.
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10 SENATE SUMMARY
11 Replaces goals for the delivery of services to children
in dependent care with a list of "rights" for those
12 children. Provides that if relevant rights are enumerated
elsewhere in federal or state law, the act does not
13 abrogate any of those rights. Revises provisions with
respect to access to confidential records relating to
14 reports of child abandonment, abuse, or neglect to permit
access under certain circumstances by the child, the
15 child's attorney, community-based lead agencies and their
subcontracted providers, the child's school, and physical
16 care provider. Provides for penalties for failure to
release such records when authorized.
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