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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    Florida Senate - 2007                                  SB 2294
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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.

14  

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:

31  

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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.

18  

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

31  

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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.

31  

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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.

31  

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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.

31  

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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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    Florida Senate - 2007                                  SB 2294
    34-869B-07




 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.

 8  

 9            *****************************************

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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