1     
BACKGROUND CHECK INFORMATION RETENTION

2     
AMENDMENTS

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Carl R. Albrecht

6     
Senate Sponsor: Daniel Hemmert

7     

8     LONG TITLE
9     General Description:
10          This bill addresses the retention of background check information for certain licenses.
11     Highlighted Provisions:
12          This bill:
13          ▸     addresses the retention of background check information for emergency medical
14     service personnel; and
15          ▸     addresses the retention of background check information for certain individuals
16     associated with child care centers.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
23          26-8a-310, as last amended by Laws of Utah 2017, Chapter 326
24          26-39-404, as last amended by Laws of Utah 2019, Chapter 160
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 26-8a-310 is amended to read:
28          26-8a-310. Background clearance for emergency medical service personnel.
29          (1) The department shall determine whether to grant background clearance for an

30     individual seeking licensure under Section 26-8a-302 from whom it receives:
31          (a) the individual's social security number, fingerprints, and other personal
32     identification information specified by the department under Subsection (4); and
33          (b) any fees established by the department under Subsection (10).
34          (2) The department shall determine whether to deny or revoke background clearance
35     for individuals for whom it has previously granted background clearance.
36          (3) The department shall determine whether to grant, deny, or revoke background
37     clearance for an individual based on an initial and ongoing evaluation of information the
38     department obtains under Subsections (5) and (11), which, at a minimum, shall include an
39     initial criminal background check of state, regional, and national databases using the
40     individual's fingerprints.
41          (4) The department shall make rules, in accordance with Title 63G, Chapter 3, Utah
42     Administrative Rulemaking Act, that specify:
43          (a) the criteria the department will use under Subsection (3) to determine whether to
44     grant, deny, or revoke background clearance; and
45          (b) the other personal identification information an individual seeking licensure under
46     Section 26-8a-302 must submit under Subsection (1).
47          (5) To determine whether to grant, deny, or revoke background clearance, the
48     department may access and evaluate any of the following:
49          (a) Department of Public Safety arrest, conviction, and disposition records described in
50     Title 53, Chapter 10, Criminal Investigations and Technical Services Act, including
51     information in state, regional, and national records files;
52          (b) adjudications by a juvenile court of committing an act that if committed by an adult
53     would be a felony or misdemeanor, if:
54          (i) the applicant is under 28 years of age; or
55          (ii) the applicant:
56          (A) is over 28 years of age; and
57          (B) has been convicted of, has pleaded no contest to, or is currently subject to a plea in

58     abeyance or diversion agreement for a felony or misdemeanor;
59          (c) juvenile court arrest, adjudication, and disposition records, other than those under
60     Subsection (5)(b), as allowed under Section 78A-6-209;
61          (d) child abuse or neglect findings described in Section 78A-6-323;
62          (e) the Department of Human Services' Division of Child and Family Services
63     Licensing Information System described in Section 62A-4a-1006;
64          (f) the Department of Human Services' Division of Aging and Adult Services database
65     of reports of vulnerable adult abuse, neglect, or exploitation, described in Section 62A-3-311.1;
66          (g) Division of Occupational and Professional Licensing records of licensing and
67     certification under Title 58, Occupations and Professions;
68          (h) records in other federal criminal background databases available to the state; and
69          (i) any other records of arrests, warrants for arrest, convictions, pleas in abeyance,
70     pending diversion agreements, or dispositions.
71          (6) Except for the Department of Public Safety, an agency may not charge the
72     department for information accessed under Subsection (5).
73          (7) When evaluating information under Subsection (3), the department shall classify a
74     crime committed in another state according to the closest matching crime under Utah law,
75     regardless of how the crime is classified in the state where the crime was committed.
76          (8) The department shall adopt measures to protect the security of information it
77     accesses under Subsection (5), which shall include limiting access by department employees to
78     those responsible for acquiring, evaluating, or otherwise processing the information.
79          (9) The department may disclose personal identification information it receives under
80     Subsection (1) to the Department of Human Services to verify that the subject of the
81     information is not identified as a perpetrator or offender in the information sources described in
82     Subsections (5)(d) through (f).
83          (10) The department may charge fees, in accordance with Section 63J-1-504, to pay
84     for:
85          (a) the cost of obtaining, storing, and evaluating information needed under Subsection

86     (3), both initially and on an ongoing basis, to determine whether to grant, deny, or revoke
87     background clearance; and
88          (b) other department costs related to granting, denying, or revoking background
89     clearance.
90          (11) The Criminal Investigations and Technical Services Division within the
91     Department of Public Safety shall:
92          (a) retain, separate from other division records, personal information under Subsection
93     (1), including any fingerprints sent to it by the Department of Health; and
94          (b) notify the Department of Health upon receiving notice that an individual for whom
95     personal information has been retained is the subject of:
96          (i) a warrant for arrest;
97          (ii) an arrest;
98          (iii) a conviction, including a plea in abeyance; or
99          (iv) a pending diversion agreement.
100          (12) The department shall use the Direct Access Clearance System database created
101     under Section 26-21-209 to manage information about the background clearance status of each
102     individual for whom the department is required to make a determination under Subsection (1).
103          (13) Clearance granted for an individual licensed under Section 26-8a-302 is valid until
104     two years after the day on which the individual is no longer licensed in Utah as emergency
105     medical service personnel.
106          Section 2. Section 26-39-404 is amended to read:
107          26-39-404. Disqualified individuals -- Criminal history checks -- Payment of
108     costs.
109          (1) (a) Each exempt provider, except as provided in Subsection (1)(c), and each person
110     requesting a residential certificate or to be licensed or to renew a license under this chapter
111     shall submit to the department the name and other identifying information, which shall include
112     fingerprints, of existing, new, and proposed:
113          (i) owners;

114          (ii) directors;
115          (iii) members of the governing body;
116          (iv) employees;
117          (v) providers of care;
118          (vi) volunteers, except parents of children enrolled in the programs; and
119          (vii) all adults residing in a residence where child care is provided.
120          (b) (i) The Utah Division of Criminal Investigation and Technical Services within the
121     Department of Public Safety shall process the information required under Subsection (1)(a) to
122     determine whether the individual has been convicted of any crime.
123          (ii) The Utah Division of Criminal Investigation and Technical Services shall submit
124     fingerprints required under Subsection (1)(a) to the FBI for a national criminal history record
125     check.
126          (iii) A person required to submit information to the department under Subsection (1)
127     shall pay the cost of conducting the record check described in this Subsection (1)(b).
128          (c) An exempt provider who provides care to a qualifying child as part of a program
129     administered by an educational institution that is regulated by the State Board of Education is
130     not subject to this Subsection (1), unless required by the Child Care and Development Block
131     Grant, 42 U.S.C. Secs. 9857-9858r.
132          (2) (a) Each person requesting a residential certificate or to be licensed or to renew a
133     license under this chapter shall submit to the department the name and other identifying
134     information of any person age 12 through 17 who resides in the residence where the child care
135     is provided. The identifying information required for a person age 12 through 17 does not
136     include fingerprints.
137          (b) The department shall access the juvenile court records to determine whether a
138     person described in Subsection (1) or (2)(a) has been adjudicated in juvenile court of
139     committing an act which if committed by an adult would be a felony or misdemeanor if:
140          (i) the person described in Subsection (1) is under the age of 28; or
141          (ii) the person described in Subsection (1) is:

142          (A) over the age of 28; and
143          (B) has been convicted, has pleaded no contest, or is currently subject to a plea in
144     abeyance or diversion agreement for a felony or misdemeanor.
145          (3) Except as provided in Subsections (4) and (5), a licensee under this chapter or an
146     exempt provider may not permit a person who has been convicted, has pleaded no contest, or is
147     currently subject to a plea in abeyance or diversion agreement for any felony or misdemeanor,
148     or if the provisions of Subsection (2)(b) apply, who has been adjudicated in juvenile court of
149     committing an act which if committed by an adult would be a felony or a misdemeanor, to:
150          (a) provide child care;
151          (b) provide volunteer services for a child care program or an exempt provider;
152          (c) reside at the premises where child care is provided; or
153          (d) function as an owner, director, or member of the governing body of a child care
154     program or an exempt provider.
155          (4) (a) The department may, by rule, exempt the following from the restrictions of
156     Subsection (3):
157          (i) specific misdemeanors; and
158          (ii) specific acts adjudicated in juvenile court, which if committed by an adult would be
159     misdemeanors.
160          (b) In accordance with criteria established by rule, the executive director may consider
161     and exempt individual cases not otherwise exempt under Subsection (4)(a) from the restrictions
162     of Subsection (3).
163          (5) The restrictions of Subsection (3) do not apply to the following:
164          (a) a conviction or plea of no contest to any nonviolent drug offense that occurred on a
165     date 10 years or more before the date of the criminal history check described in this section; or
166          (b) if the provisions of Subsection (2)(b) apply, any nonviolent drug offense
167     adjudicated in juvenile court on a date 10 years or more before the date of the criminal history
168     check described in this section.
169          (6) The department may retain background check information submitted to the

170     department for up to one year after the day on which the covered individual is no longer
171     associated with a Utah child care provider.