S.B. 183

1

ADOPTION AGENCY MODIFICATIONS
2 2013 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Luz Robles
5 House Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill amends Title 62A, Chapter 2, Licensure of Programs and Facilities, Title 78B,
10 Chapter 6, Particular Proceedings, and Title 78B, Chapter 15, the Utah Uniform
11 Parentage Act.
12 Highlighted Provisions:
13 This bill:
14 . requires the Office of Licensing to prohibit an adoption agency or an employee of
15 an adoption agency from making a fraudulent representation or action in connection
16 with an adoption;
17 . states that a fraudulent representation or action by an adoption agency or an
18 employee of an adoption agency in connection with an adoption is grounds for the
19 Office of Licensing to deny, place conditions on, suspend, or revoke the agency's
20 license, pursuant to Section 62A-2-112 ;
21 . provides for an award of attorney fees and costs to a prevailing party in an action
22 alleging fraudulent representation or action in connection with an adoption; and
23 . makes technical changes.
24 Money Appropriated in this Bill:
25 None
26 Other Special Clauses:
27 None

28 Utah Code Sections Affected:
29 AMENDS:
30 62A-2-106, as last amended by Laws of Utah 2009, Chapter 75
31 78B-6-106, as renumbered and amended by Laws of Utah 2008, Chapter 3
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 62A-2-106 is amended to read:
35 62A-2-106. Office responsibilities.
36 (1) Subject to the requirements of federal and state law, the office shall:
37 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
38 Rulemaking Act, to establish:
39 (i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for
40 licensees, that shall be limited to:
41 (A) fire safety;
42 (B) food safety;
43 (C) sanitation;
44 (D) infectious disease control;
45 (E) safety of the:
46 (I) physical facility and grounds; and
47 (II) area and community surrounding the physical facility;
48 (F) transportation safety;
49 (G) emergency preparedness and response;
50 (H) the administration of medical standards and procedures, consistent with the related
51 provisions of this title;
52 (I) staff and client safety and protection;
53 (J) the administration and maintenance of client and service records;
54 (K) staff qualifications and training, including standards for permitting experience to
55 be substituted for education, unless prohibited by law;
56 (L) staff to client ratios; and
57 (M) access to firearms;
58 (ii) basic health and safety standards for therapeutic schools, that shall be limited to:

59 (A) fire safety, except that the standards are limited to those required by law or rule
60 under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act;
61 (B) food safety;
62 (C) sanitation;
63 (D) infectious disease control, except that the standards are limited to:
64 (I) those required by law or rule under Title 26, Utah Health Code or Title 26A, Local
65 Health Authorities; and
66 (II) requiring a separate room for clients who are sick;
67 (E) safety of the physical facility and grounds, except that the standards are limited to
68 those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks
69 Act;
70 (F) transportation safety;
71 (G) emergency preparedness and response;
72 (H) access to appropriate medical care, including:
73 (I) subject to the requirements of law, designation of a person who is authorized to
74 dispense medication; and
75 (II) storing, tracking, and securing medication;
76 (I) staff and client safety and protection that permits the school to provide for the direct
77 supervision of clients at all times;
78 (J) the administration and maintenance of client and service records;
79 (K) staff qualifications and training, including standards for permitting experience to
80 be substituted for education, unless prohibited by law;
81 (L) staff to client ratios; and
82 (M) access to firearms;
83 (iii) procedures and standards for permitting a licensee to:
84 (A) provide in the same facility and under the same conditions as children, residential
85 treatment services to a person 18 years old or older who:
86 (I) begins to reside at the licensee's residential treatment facility before the person's
87 18th birthday;
88 (II) has resided at the licensee's residential treatment facility continuously since the
89 time described in Subsection (1)(a)(iii)(A)(I);

90 (III) has not completed the course of treatment for which the person began residing at
91 the licensee's residential treatment facility; and
92 (IV) voluntarily consents to complete the course of treatment described in Subsection
93 (1)(a)(iii)(A)(III); or
94 (B) (I) provide residential treatment services to a child who is:
95 (Aa) 12 years old or older; and
96 (Bb) under the custody of the Division of Juvenile Justice Services; and
97 (II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I),
98 residential treatment services to a person who is:
99 (Aa) at least 18 years old, but younger than 21 years old; and
100 (Bb) under the custody of the Division of Juvenile Justice Services;
101 (iv) minimum administration and financial requirements for licensees; [and]
102 (v) guidelines for variances from rules established under this Subsection (1); and
103 (vi) minimum ethical responsibilities of an adoption agency licensed under this
104 chapter, including prohibiting an adoption agency or its employee from engaging in a
105 fraudulent representation or action in connection with an adoption;
106 (b) enforce rules relating to the office;
107 (c) issue licenses in accordance with this chapter;
108 (d) if the United States Department of State executes an agreement with the office that
109 designates the office to act as an accrediting entity in accordance with the Intercountry
110 Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to
111 provide intercountry adoption services pursuant to:
112 (i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and
113 (ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L.
114 No. 106-279;
115 (e) make rules to implement the provisions of Subsection (1)(d);
116 (f) conduct surveys and inspections of licensees and facilities in accordance with
117 Section 62A-2-118 ;
118 (g) collect licensure fees;
119 (h) notify licensees of the name of a person within the department to contact when
120 filing a complaint;

121 (i) investigate complaints regarding any licensee or human services program;
122 (j) have access to all records, correspondence, and financial data required to be
123 maintained by a licensee;
124 (k) have authority to interview any client, family member of a client, employee, or
125 officer of a licensee; and
126 (l) have authority to deny, condition, revoke, suspend, or extend any license issued by
127 the department under this chapter by following the procedures and requirements of Title 63G,
128 Chapter 4, Administrative Procedures Act.
129 (2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a
130 licensee to establish and comply with an emergency response plan that requires clients and staff
131 to:
132 (a) immediately report to law enforcement any significant criminal activity, as defined
133 by rule, committed:
134 (i) on the premises where the licensee operates its human services program;
135 (ii) by or against its clients; or
136 (iii) by or against a staff member while the staff member is on duty;
137 (b) immediately report to emergency medical services any medical emergency, as
138 defined by rule:
139 (i) on the premises where the licensee operates its human services program;
140 (ii) involving its clients; or
141 (iii) involving a staff member while the staff member is on duty; and
142 (c) immediately report other emergencies that occur on the premises where the licensee
143 operates its human services program to the appropriate emergency services agency.
144 Section 2. Section 78B-6-106 is amended to read:
145 78B-6-106. Responsibility of each party for own actions -- Fraud or
146 misrepresentation.
147 (1) Each parent of a child conceived or born outside of marriage is responsible for his
148 or her own actions and is not excused from strict compliance with the provisions of this
149 chapter based upon any action, statement, or omission of the other parent or third parties.
150 (2) (a) Any person injured by fraudulent representations or actions in connection with
151 an adoption is entitled to pursue civil or criminal penalties in accordance with existing law.

152 (b) The prevailing party in a court proceeding alleging fraudulent representation or
153 action by a birth mother, adoption agency, or an employee of an adoption agency is entitled to
154 an award of reasonable attorney fees and costs.
155 (3) A fraudulent representation or action on the part of a licensed adoption agency, or
156 an employee of a licensed adoption agency, in violation of a rule made under Subsection
157 62A-2-106 (1)(a)(vi) is grounds for punishment under Section 62A-2-112 .
158 (4) A fraudulent representation is not:
159 (a) a defense to strict compliance with the requirements of this chapter[, and is not]; or
160 (b) a basis for dismissal of a petition for adoption, vacation of an adoption decree, or
161 an automatic grant of custody to the offended party. [Custody]
162 (5) Subject to Subsection (6), custody determinations shall be based on the best
163 interest of the child, in accordance with the provisions of Section 78B-6-133 .
164 (6) When an adoption is facilitated by fraudulent representation or action, and court
165 proceedings have significantly delayed a final custody determination, due process shall be a
166 greater consideration than bonding of the child to the adoptive parent when reunification
167 therapy is available and required.




Legislative Review Note
as of 2-7-13 8:52 AM

Office of Legislative Research and General Counsel

[Bill Documents]