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ARIZONA HOUSE OF REPRESENTATIVESFifty-sixth Legislature Second Regular Session |
House: HHS DP 5-4-1-0 |
HB 2323: DCS; specialty medical evaluations
Sponsor: Representative Payne, LD 27
Caucus & COW
Overview
Prohibits the superior courts from issuing an order authorizing the Arizona Department of Child Safety (DCS) to take temporary custody of a child based on a sworn statement or testimony that relies solely on the opinion of a licensed physician or health care provider who performs evaluations for DCS or who has not conducted a physical examination of the child.
History
A child must be taken into temporary custody pursuant to only one of the following: 1) an order of the superior court; 2) if temporary custody is clearly necessary to protect the child because exigent circumstances exist; or 3) the consent of the child's parent or guardian. Exigent circumstances mean there is probable cause to believe that the child is likely to suffer serious harm in the time it would take to obtain a court order for removal and either: 1) there is no less intrusive alternative to taking temporary custody of the child that would reasonably and sufficiently protect the child's health or safety; or 2) probable cause exists to believe that the child is a victim of sexual abuse or abuse involving serious physical injury that can be diagnosed only by a licensed medical doctor, osteopathic physician or health care provider who has specific training in evaluations of child abuse.
A person who takes a child into custody because an exigent circumstance exists must immediately have the child forensically interviewed by a person who is trained in forensic interviewing protocols and may have the child examined by a licensed medical doctor, osteopathic physician or health care provider who has specific training in evaluations of child abuse. After the interview or examination, or both, the person must release the child to the custody of the parent or guardian of the child, unless the interview or examination reveals abuse.
The court is required to hold a preliminary protective hearing to review the taking into temporary custody of a child not fewer than five days nor more than seven days after the child is taken into custody. The court's determination in the preliminary protective hearing may be based on evidence that is hearsay, in whole or in part, in the following forms: 1) the allegations of the petition; 2) an affidavit; 3) sworn testimony; 4) the written reports of expert witnesses; 5) DCSs written reports if the child safety worker is present and available for cross-examination; 6) documentary evidence without foundation if there is a substantial basis for believing the foundation will be available at the dependency hearing and the document is otherwise admissible; and 7) the testimony of a witness concerning the declarations of another person if the evidence is cumulative or there is a reasonable ground to believe that the other person will be personally available for trial (A.R.S. §§ 8-821, 8-824 and 8-825).
Provisions
Preliminary Protective Hearings
1. Prohibits the superior courts from issuing an order authorizing DCS to take temporary custody of a child based on a sworn statement or testimony that relies solely on the opinion of a licensed physician or health care provider who performs evaluations for DCS or who has not conducted a physical examination of the child. (Sec. 1)
2. Asserts that a determination of exigent circumstances may not be based solely on the opinion of a licensed physician or health care provider who performs evaluations for DCS or who did not conduct a physical examination of the child. (Sec. 1)
3. Requires the court at the preliminary protective hearing to consider the opinion of a licensed physician or health care provider who is obtained by the person against whom the allegation of suspected abuse or neglect is being made. (Sec. 2, 3)
Specialty Medical Evaluations
4. Requires DCS, during the course of an investigation of suspected abuse or neglect, to refer a child who is taken into temporary custody for a specialty medical evaluation for any of the following reasons:
a) DCS determined that the child requires a specialty medical evaluation with a physician;
b) the child's parent, legal guardian or the attorney for the child, child's parent or legal guardian requests a specialty medical evaluation; or
c) the child's primary care physician or other primary health care provider who provided health care or treatment to or otherwise evaluated the child recommends a special medical evaluation. (Sec. 4)
5. Requires DCS, if a child is referred for a specialty medical evaluation, to refer the child to a physician or health care provider who meets all the following:
a) is a licensed physician or a health care provider; and
b) is board certified in the field or specialty that is relevant to diagnosing and treating the condition that required the special medical evaluation;
c) did not report the suspected abuse or neglect of the child. (Sec. 4)
6. Prohibits the physician or health care provider who reported the suspected abuse or neglect of the child from participating in the specialty medical evaluation. (Sec. 4)
7. Requires DCS to provide the child's parent, legal guardian or the attorney for the child, child's parent or legal guardian with written notice of the name, contact information and credentials of the specialist before referring a child for a specialty medical evaluation. (Sec. 4)
8. Allows the child's parent, legal guardian or the attorney of the child, child's parent or legal guardian to object to the proposed referral and request a referral to another specialist. (Sec. 4)
9. Instructs DCS, parents, legal guardians or attorneys to collaborate in good faith to select an acceptable specialist. (Sec. 4)
10. Allows DCS to refer the child to a specialist over the objection of the child's parent, legal guardian or the attorney for the child, child's parent or legal guardian. (Sec. 4)
11. Permits DCS to obtain consultations with physicians or health care providers with the ability to diagnose and treat unique health conditions that mimic child maltreatment or that increase the risk of misdiagnosis of child maltreatment. (Sec. 4)
12. Clarifies that this does not prohibit a child's parent, legal guardian or the attorney for the child, child's parent or legal guardian from obtaining an alternative opinion. (Sec. 4)
13. States that the child's parent, legal guardian or the attorney for the child, child's parent or legal guardian is responsible for the cost of the alternative opinion. (Sec. 4)
14. Directs DCS to accept and consider an obtained alternative opinion. (Sec. 4)
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HB 2323
Initials AG Page 0 Caucus & COW
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