“There is no legal basis for Hawaii to allow its child care licensing agency to have access to unsubstantiated reports of child abuse and neglect,” the U.S. Department of Health and Human Services wrote in September in one of a series of letters. Instead, the department wrote, “the state is required to promptly expunge those records.”

The limits on use of the unconfirmed reports reflects the fact that they can sometimes be made out of malice, by an estranged spouse, for instance — or simply be mistaken.

Cory Lum/Civil Beat

Earlier this month, the state submitted a corrective plan and is working on technological changes so that confirmed and unconfirmed reports are in separate databases. In the meantime, the department has blocked those who should not be seeing unconfirmed reports.

“No one, as far as we can tell, was ever denied a license or registration because of a not-confirmed report,” said Keopu Reelitz, spokeswoman for the department.

But officials may have used the unconfirmed reports to “have a conversation” with people being reviewed because they wanted to care for children, she said.

Reelitz said it’s “fairly normal” for DHS to have discussions with its federal partners about nuances in the law and for the federal government to order a “performance improvement plan” like this one.

“We’re coming from a place of trying to keep kids safe,” she said.

‘Why Would Any Parent Not Be Upset?’

Marilyn Yamamoto, an advocate for parents wrongfully accused of abuse, isn’t so sure that the mistake was harmless.

As part of its improper interpretation of the law, the state was sending letters to parents who were the subject of unconfirmed reports to tell them that, though the complaint was not substantiated, their names would still be placed on the child abuse registry.

“Everyone knows about the sex offender registry,” Yamamoto said. “Why would any parent not be upset to see their name is on a child abuse registry?”

Such parents would be likely to waste money hiring attorneys to try to get their names expunged, she said, adding she’s been involved in hundreds of cases involving accused parents since 2012.

The state’s misuse of the unconfirmed reports is all the more puzzling considering that, in testimony on a 2017 bill related to the registry, the department said they would be removed from the registry.

Ige Administration

Federal law “requires reports where there is no finding of child abuse or neglect to be expunged from the central registry, so the report cannot be used for employment or background check purposes,” DHS Director Pankaj Bhanot wrote in support of House Bill 1099, which made adjustments to the registry.

Reelitz could not say how long the department has been allowing its various operations to see the unconfirmed reports, but believes it’s been standard practice for years. An outside contractor that does background checks on those who work with vulnerable populations had access to the unconfirmed reports, but was told not to use them.

DHS workers who clear potential foster parents also had access. They might have brought up the reports in discussions with applicants, but never blocked anyone solely on the basis of the unsubstantiated complaint, Reelitz said. The same was true for DHS workers who clear in-home child care providers.

State Asked Feds For Help

The issue of background checks has gotten attention recently with new federal requirements. Perhaps because of that focus, Reelitz said, DHS staff last summer started discussing the use of the unconfirmed reports and decided to ask the federal government to review how it was using them.

Around the same time, Yamamoto, the advocate, was asking DHS whether it had revised a letter that goes to parents who were the subject of unconfirmed reports. She wanted to see if the form letter reflected changes made by the 2017 law. After about a month, she got the form letter and saw that it continued to tell those parents that, though the complaint against them was unsubstantiated, their names would still go on the central registry.

Yamamoto complained to the Hawaii Office of the Ombudsman, which in November sent her a letter saying that it was unable to substantiate her complaint. She then asked the federal office that oversees child care to look into it.

In September, the office responded to DHS’s inquiry about unconfirmed reports with a letter saying federal law would not permit child care licensing workers to see them.

In November, apparently in response to Yamamoto’s complaint, the federal office said that it had learned that others also had access to the unconfirmed reports and ordered a “program improvement plan.”