HOUSE FILE 191

BY  HUNTER

A BILL FOR

An Act relating to due process requirements associated with child abuse assessments performed by the department of human services and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

   Section 1.  Section 232.71B, subsection 4, paragraph e, Code 2011, is amended to read as follows:
   e.
  (1)  An interview of the person alleged to have committed the child abuse, if the person’s identity and location are known. The offer of an interview shall be made to the person prior to any consideration or determination being made that the person committed the alleged abuse. The person shall be informed of the complaint or allegation made regarding the person. The person shall be informed in a manner that protects the confidentiality rights of the individual who reported the child abuse or provided information as part of the assessment process. The purpose of the interview shall be to provide the person with the opportunity to explain or rebut the allegations of the child abuse report or other allegations made during the assessment. The court may waive the requirement to offer the interview only for good cause. The person offered an interview, or the person’s attorney on the person’s behalf, may decline the offer of an interview of the person or terminate an interview at any time.
   (2)  Prior to conducting the interview, the child protection worker shall provide written notification to the person that the person is being interviewed for having been alleged to have committed child abuse including notification of the nature of the child abuse being assessed, the possible civil administrative consequences of founded abuse, the requirement that the department forward a report to law enforcement if the department’s assessment reveals a potential criminal offense, and that the person has the right to retain legal counsel at the person’s expense. If the alleged child abuse is related to the person’s employment, the person may choose to have legal counsel, union representation, or any other desired representative of the person or the person’s employer present during the interview. The person alleged to have committed the child abuse shall inform the child protection worker of the representatives desired to be present during the interview and not delay the interview by more than five working days to make arrangements for the person’s representatives to be present at the interview. Any employer representative shall be informed of the requirement to maintain strict confidentiality and of the prohibition against redissemination of such information pursuant to chapter 235A.
   (3)  At the interview, the child protection worker shall request and the person alleged to have committed the child abuse shall provide the person’s most current contact information to facilitate provision of the results of the assessment to the person.
   Sec. 2.  Section 232.71B, subsection 6, Code 2011, is amended to read as follows:
   6.  Facility,or school, or program visit.
   a.  The assessment may include a visit to a facility or program providing care to the child named in the report or to any public or private school subject to the authority of the department of education where the child named in the report is located. The administrator of a facility or program, or a public or private school shall cooperate with the child protection worker by providing confidential access to the child named in the report for the purpose of interviewing the child, and shall allow the child protection worker confidential access to other children for the purpose of conducting interviews in order to obtain relevant information. The child protection worker may observe a child named in a report in accordance with the provisions of section 232.68, subsection 3, paragraph “b”. A witness shall be present during an observation of a child. Any child aged ten years of age or older can terminate contact with the child protection worker by stating or indicating the child’s wish to discontinue the contact. The immunity granted by section 232.73 applies to acts or omissions in good faith of administrators and their facilities, programs, or school districts for cooperating in an assessment and allowing confidential access to a child.
   b.  If the person alleged to have committed the child abuse is employed by a facility, program, or school and the child protection worker believes the situation involves an immediate danger to the public health, safety, or welfare requiring immediate agency action to seek emergency placement on the central registry, the department may utilize emergency adjudicative proceedings pursuant to section 17A.18A.
   c.  A child protection worker may enter any facility, program, or school without a warrant and may examine all records pertaining to children who attend, employees, former employees, and the person alleged to have committed the child abuse.
   d.  Independent of the department’s assessment, the facility, program, or school employing the person alleged to have committed the child abuse shall conduct an investigation of the alleged child abuse and determine what, if any, employment action should be taken including but not limited to placing the person on administrative leave or reassigning or terminating the person as a result of the investigation by the facility, program, or school. If the facility, program, or school terminates the person as a result of the investigation by the facility, program, or school or the person resigns, the person shall disclose such termination or investigation to any prospective facility, program, or school employer. Such a person who fails to disclose such termination or investigation commits a simple misdemeanor.
   Sec. 3.  Section 232.71B, subsection 12, paragraph g, Code 2011, is amended to read as follows:
   g.
  (1)  The department shall notify each subject of the child abuse report, as identified in section 235A.15, subsection 2, paragraph “a”, of the results of the assessment, of the subject’s right, pursuant to section 235A.19, to correct the report data or disposition data which refers to the subject, and of the procedures to correct the data.  The notice shall also detail the consequences of placement of the person’s name on the central child abuse registry.
   (2)  If the alleged child abuse is employment-related, the department shall also notify the employer of the results of the assessment.
   Sec. 4.  Section 235A.19, subsection 2, paragraph a, Code 2011, is amended to read as follows:
   a.
  (1)  A subject of a child abuse report may file with the department within six months of the date of the notice of the results of an assessment performed in accordance with section 232.71B, a written statement to the effect that report data and disposition data referring to the subject is in whole or in part erroneous, and may request a correction of that data or of the findings of the assessment report. The department shall provide the subject with an opportunity for an evidentiary a contested case hearing pursuant to chapter 17A to correct the data or the findings, unless the department corrects the data or findings as requested. The department may defer the hearing until the conclusion of a pending juvenile or district court case relating to the data or findings.
   (2)  In lieu of filing under subparagraph (1), if the subject of a child abuse report files such a request for correction of report data and disposition data or of the findings of the assessment report within fifteen days of the date of the notice of the results of an assessment, the department shall not place child abuse information referring to the subject on the central abuse registry until final agency action is taken. A contested case hearing on the request shall be held within sixty days of the request. The subject may extend the hearing timeframe by thirty days one time. Additional requests for an extension must be agreed upon by all parties or necessitated by good cause. The administrative law judge’s proposed decision shall be issued within thirty days of the contested case hearing. If further review of the decision is not requested before the proposed decision becomes final, the proposed decision shall be deemed final agency action. If further review is requested, the department’s final agency action shall occur within thirty days of the issuance of the administrative law judge’s proposed decision. Upon final agency action, further appeal rights shall be governed by subsection 3.
   Sec. 5.  Section 235A.19, subsection 3, Code 2011, is amended to read as follows:
   3.  The subject of a child abuse report may appeal the final agency decision resulting from a hearing held pursuant to subsection 2 to the district court of Polk county or to the district court of the district in which the subject of the child abuse report resides. Immediately upon appeal the court shall order the department to file with the court a certified copy of the report data or disposition data. Appeal shall be taken in accordance with chapter 17A.
EXPLANATION
   This bill relates to due process requirements associated with child abuse assessments performed by the department of human services.
   Code section 232.71B, relating to assessments performed by the department in response to a report of child abuse, is amended in several ways. Existing requirements for an interview of a person alleged to have committed the child abuse are expanded to allow the subject to terminate an interview at any time, to require written notification of the person providing information about the process, procedural protections, potential effects of a child abuse finding, and to allow representatives of the person or the person’s employer to be present at the interview. The child protection worker is required to request and the person to provide contact information.
   Existing requirements for a child protection worker’s visit to a facility providing care to the child named in the report are expanded to include a program providing the care. If the person alleged to have committed the child abuse is employed by a facility, program, or school and the child protection worker believes the situation involves an immediate danger to the public health, safety, or welfare requiring immediate placement on the child abuse registry, the department may utilize an emergency adjudicative proceeding pursuant to section 17A.18A.
   A child protection worker may enter any facility, program, or school without a warrant and examine all records pertaining to children who attend, employees, former employees, and the person alleged to have committed the child abuse.
   Independent of the department’s assessment, the facility, program, or school employing the person alleged to have committed the child abuse is required to conduct an investigation of the alleged child abuse and determine what, if any, employment action should be taken including but not limited to placing the person on administrative leave or reassigning or terminating the person as a result of the investigation. If the facility, program, or school terminates the person or the person resigns, the person is required to disclose such termination or investigation to any prospective facility, program, or school employer. A person who fails to disclose such termination or investigation commits a simple misdemeanor. A simple misdemeanor is punishable by confinement for no more than 30 days or a fine of at least $65 but not more than $625 or by both.
   The requirements of the department to notify subjects of a child abuse report (these persons or their attorneys: the child, the child’s parent, guardian, or legal custodian, and the person named in a report as having abused a child) in Code section 232.71B are expanded to also include the employer if the abuse is employment-related.
   Code section 235A.19, relating to requests for correction or expungement and appeals of child abuse findings or data, is amended to allow the subject of a child abuse report to file an expedited request. The procedure in current law requires the request to be filed within six months of the issuance date of the notice of assessment results. The expedited process in the bill can be used in lieu of the procedure under current law and the request must be filed within 15 days of the notice. The request is considered in a contested case hearing which must be held within 60 days and the department is prohibited from placing the child abuse information on the registry until the final agency action concerning the hearing decision. The hearing timeframe can be extended 30 days by the subject one time. Other extensions must be by mutual agreement or necessitated by good cause. The administrative law judge’s proposed decision is required within 30 days of the hearing and if further review of that decision is requested, the agency decision is required within 30 days of the proposed decision.
   Current law in section 235A.19, subsection 3, authorizes an appeal of the decision from a hearing to the district court. This provision is amended to also reference the bill’s new expedited process.