Second Substitute S.B. 101

Senator Leonard M. Blackham proposes the following substitute bill:

1 CRIMINAL BACKGROUND CHECKS FOR
2 LICENSED PROVIDERS OF HUMAN
3 SERVICES
4 2002 GENERAL SESSION
5 STATE OF UTAH
6 Sponsor: Leonard M. Blackham
7 This act amends the Human Services Code. The act adds new defined terms and modifies
8 others. The act excludes individuals serving on certain governing bodies and boards from
9 the requirement of criminal background checks. The act modifies licensing requirements
10 of human services licensees and persons associated with a licensee. The act amends criminal
11 background check provisions. The act requires that the Department of Human Services and
12 the Human Services Licensing Board conduct a comprehensive review of criminal and court
13 records and related circumstances in connection with certain convictions found in a search.
14 The act clarifies and modifies the process for challenging a decision by the department not
15 to approve a person to have direct access in a licensee program serving children or
16 vulnerable adults. The act makes technical changes.
17 This act affects sections of Utah Code Annotated 1953 as follows:
18 AMENDS:
19 62A-2-101, as last amended by Chapter 358, Laws of Utah 1998
20 62A-2-120, as enacted by Chapter 358, Laws of Utah 1998
21 62A-2-121, as last amended by Chapter 164, Laws of Utah 1999
22 ENACTS:
23 62A-2-122, Utah Code Annotated 1953
24 REPEALS:
25 62A-4a-413, as last amended by Chapters 263 and 358, Laws of Utah 1998

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- 2 - 26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 62A-2-101 is amended to read:
28 62A-2-101. Definitions.
29 As used in this chapter:
30 (1) "Adult day care" means continuous care and supervision for three or more adults for
31 at least four but less than 24 hours a day, that meets the needs of functionally impaired adults
32 through a comprehensive program that provides a variety of health, social, recreational, and related
33 support services in a protective setting.
34 (2) "Child" means a person under 18 years of age.
35 [(2)] (3) "Child placing" means receiving, accepting, or providing custody or care for any
36 child under 18 years of age, temporarily or permanently, for the purpose of:
37 (a) finding a person to adopt the child;
38 (b) placing the child temporarily or permanently in a home for adoption; or
39 (c) foster home placement.
40 [(3)] (4) "Client" means an individual who receives or has received services from a human
41 services licensee under this chapter.
42 [(4)] (5) "Day treatment" means specialized treatment for less than 24 hours a day for four
43 or more persons who are unrelated to the owner or provider and who have emotional,
44 psychological, developmental, physical, or behavioral dysfunctions, impairments, or chemical
45 dependencies. Day treatment is provided in lieu of, or in coordination with, a more restrictive
46 residential or inpatient environment or service.
47 [(5)] (6) "Department" means the Department of Human Services.
48 (7) "Direct access" means that an individual has, or likely will have, contact with or access
49 to a child or vulnerable adult that provides the individual with an opportunity for personal
50 communication or touch.
51 [(6)] (8) "Director" means the director of the Office of Licensing.
52 [(7)] (9) "Domestic violence treatment program" means a nonresidential program designed
53 to provide psychological treatment and educational services to perpetrators and victims of
54 domestic violence.
55 (10) "Elder adult" means a person 65 years of age or older.
56 [(8)] (11) "Executive director" means the executive director of the [Department of Human

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- 3 - 57 Services] department.
58 [(9)] (12) "Human services licensee" or "licensee" means a youth program, resource family
59 home, or a facility or program, licensed by the department, that provides care, secure treatment,
60 inpatient treatment, residential treatment, residential support, adult day care, day treatment,
61 outpatient treatment, domestic violence treatment, child placing services, or social detoxification.
62 [(10)] (13) "Licensing board" means the Human Services Licensing Board.
63 (14) "Minor" has the same meaning as "child."
64 [(11)] (15) "Office" means the Office of Licensing within the Department of Human
65 Services.
66 [(12)] (16) "Outpatient treatment" means individual, family, or group therapy or
67 counseling designed to improve and enhance social or psychological functioning for those whose
68 physical and emotional status allows them to continue functioning in their usual living
69 environment.
70 [(13)] (17) (a) "Person associated with [a] the licensee" means an owner, director, member
71 of the governing body, employee, provider of care, [and] or volunteer of a human services licensee
72 or of an applicant to become a licensee.
73 (b) Notwithstanding Subsection (17)(a), "person associated with the licensee" does not
74 include an individual serving on either of the following bodies unless that individual has direct
75 access to children or vulnerable adults:
76 (i) a county governing body designated as a local mental health authority under Section
77 17A-3-602 or as a local substance abuse authority under Section 17A-3-701 ; or
78 (ii) a board of an organization operating under a contract to provide comprehensive mental
79 health or substance abuse programs or services for the local mental health authority or substance
80 abuse authority.
81 [(14)] (18) "Residential support" means arranging for or providing the necessities of life
82 as a protective service to individuals or families who are disabled or who are experiencing a
83 dislocation or emergency which prevents them from providing these services for themselves or
84 their families. Treatment is not a necessary component of residential support.
85 [(15)] (19) "Residential treatment" means a 24-hour group living environment for four or
86 more individuals unrelated to the owner or provider that offers room or board and specialized
87 treatment, rehabilitation, or habilitation services for persons with emotional, psychological,

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- 4 - 88 developmental, or behavioral dysfunctions, impairments, or chemical dependencies. In residential
89 treatment, individuals are assisted in acquiring the social and behavioral skills necessary for living
90 independently in the community.
91 [(16)] (20) "Resource family home" means a home licensed to provide services to a child
92 in the custody of the state and includes a foster care home and a legal risk home.
93 [(17)] (21) "Secure treatment" means 24-hour specialized residential treatment or care for
94 persons whose current functioning is such that they cannot live independently or in a less
95 restrictive environment. Secure treatment differs from residential treatment to the extent that it
96 requires intensive supervision, locked doors, and other security measures which are imposed on
97 residents with neither their consent nor control.
98 [(18)] (22) "Social detoxification" means short-term residential services for persons who
99 are intoxicated, that are provided outside of a health care facility licensed under Title 26, Chapter
100 21, Health Care Facility Licensure and Inspection Act, and that include:
101 (a) room and board for persons who are unrelated to the owner or manager of the facility;
102 (b) specialized rehabilitation to acquire sobriety; and
103 (c) aftercare services.
104 [(19)] (23) "Unrelated persons" means persons other than parents, legal guardians,
105 grandparents, brothers, sisters, uncles, or aunts.
106 (24) "Vulnerable adult" means an elder adult or an adult who has a mental or physical
107 impairment that substantially affects the person's ability to:
108 (a) provide personal protection;
109 (b) provide necessities such as food, shelter, clothing, or mental or other health care;
110 (c) obtain services necessary for health, safety, or welfare;
111 (d) carry out the activities of daily living;
112 (e) manage the adult's own resources; or
113 (f) comprehend the nature and consequences of remaining in a situation of abuse, neglect,
114 or exploitation.
115 [(20)] (25) (a) "Youth program" means a nonresidential program, designed to provide
116 behavioral, substance abuse or mental health services to minors that:
117 [(a)] (i) serves either adjudicated or nonadjudicated youth;
118 [(b)] (ii) charges a fee for its services;

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- 5 - 119 [(c)] (iii) may or may not provide host homes or other arrangements for overnight
120 accommodation of the youth;
121 [(d)] (iv) may or may not provide all or part of its services in the outdoors;
122 [(e)] (v) may or may not limit or censor access to parents or guardians; and
123 [(f)] (vi) prohibits or restricts a minor's ability to leave the program at any time of his own
124 free will[; and].
125 [(g) will not apply to] (b) "Youth program" does not include recreational programs such
126 as Boy Scouts, Girl Scouts, 4-H, and other such organizations.
127 Section 2. Section 62A-2-120 is amended to read:
128 62A-2-120. Criminal background checks.
129 (1) (a) [A human services licensee or individual applying for or renewing a] An applicant
130 for an initial license [to provide child-placing services, youth programs, substitute care, foster care,
131 or institutionalized care to children,] or a license renewal under this chapter shall submit to the
132 department the [name] names and other identifying information, which may include fingerprints,
133 of all persons associated with the licensee, as defined in Section 62A-2-101 , with direct access to
134 children or vulnerable adults. This information for a given person associated with the licensee
135 shall be submitted before that person is permitted to have direct access to children or vulnerable
136 adults.
137 (b) The Criminal Investigations and Technical Services Division of the Department of
138 Public Safety shall process that information to determine whether the individual has been
139 convicted of any crime.
140 (c) If an individual has not lived in Utah for five years, the individual shall submit
141 fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted
142 to the FBI through the Criminal Investigations and Technical Services Division.
143 [(2) A person associated with the licensee who has a felony conviction may not provide
144 child-placing services, foster care, youth programs, substitute care, or institutionalized care for
145 children in facilities or programs licensed by the department.]
146 [(3) The department shall adopt rules defining the circumstances under which a person
147 who has been convicted of a misdemeanor may provide child-placing services, foster care, youth
148 programs, substitute care, or institutionalized care for children in a facility or program licensed by
149 the department.]

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(2) The department shall approve a person for whom identifying information is submitted
151 under Subsection (1) to have direct access in the licensee program serving children or vulnerable
152 adults if:
153 (a) the person is found to have no criminal history record; or
154 (b) (i) the only convictions in the person's criminal history record are h :
154a (A) h misdemeanors h NOT INVOLVING ANY OF THE OFFENSES DESCRIBED IN
154b SUBSECTION (3); h or
155 h (B) h infractions not involving any of the offenses described in Subsection (3); and
156 (ii) the date of the last conviction under Subsection (2)(b)(i) is more than five years before
157 the date of the search.
158 (3) The department may not approve a person to have direct access in the licensee program
159 serving children or vulnerable adults if the person has at any time been convicted of h [ : ]
160 [ (a) ] AN OFFENSE, WHETHER h a felony, misdemeanor h [ other than a protective order
160a violation in a domestic case ] h , or
161 infraction h [ involving an offense ] , THAT WAS:
161a (a) h identified as domestic violence, lewdness, assault, or battery;
162 (b) a violation of any pornography law, including sexual exploitation of a minor;
163 (c) prostitution;
164 (d) h [ an offense ] h identified in Title 76, Utah Criminal Code, as an offense against the
164a family
165 or an offense against the person; or
166 (e) h [ an offense ] h identified in Title 76, Utah Criminal Code, as a sexual offense.
167 (4) (a) h [ The ] IF A PERSON FOR WHOM IDENTIFYING INFORMATION IS SUBMITTED UNDER
167a SUBSECTION (1) IS NOT APPROVED BY THE DEPARTMENT UNDER SUBSECTION (2) TO HAVE
167b DIRECT ACCESS IN THE LICENSEE PROGRAM SERVING CHILDREN OR VULNERABLE ADULTS,
167c THE h department h [ and the Human Services Licensing Board ] h shall conduct a
168 comprehensive review of criminal and court records and related circumstances if a person for
169 whom identifying information is submitted under Subsection (1):
170 (i) has been convicted at any time of any felony not listed in Subsection (3); h [ or ] h
171 (ii) has been convicted within five years of the date of the search of h :
171a (A) h any misdemeanor h NOT LISTED IN SUBSECTION (3); h or
172 h (B) ANY h infraction not listed in Subsection (3) h ; OR (iii) HAS BEEN CONVICTED AT
172a ANY TIME OF A PROTECTIVE ORDER OR EX PARTE PROTECTIVE ORDER VIOLATION UNDER
172b SECTION 76-5-18 OR A SIMILAR STATUTE IN ANOTHER STATE h .
173 (b) The comprehensive review under Subsection (4)(a) shall include an examination of:

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(i) the date of the offense;
175 (ii) the nature and seriousness of the offense;
176 (iii) the circumstances under which the offense occurred;
177 (iv) the age of the offender when the offense was committed;
178 (v) whether the offense was an isolated or repeated incident;
179 (vi) whether the offense directly relates to abuse of a child or vulnerable adult, including:
180 (A) actual or threatened, nonaccidental physical or mental harm;

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- 7 - 181 (B) sexual abuse;
182 (C) sexual exploitation; and
183 (D) negligent treatment;
184 (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
185 treatment received, or additional academic or vocational schooling completed, by the person; and
186 (viii) any other pertinent information.
187 (c) At the conclusion of the comprehensive review under this Subsection (4), the
188 department shall either approve or not approve the person who is the subject of the review to have
189 direct access to children or vulnerable adults, based upon the determination of the department and
190 the Human Services Licensing Board of whether or not granting approval would likely create a risk
191 of harm to a child or vulnerable adult.
192 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
193 department may make rules, consistent with this chapter, defining procedures for the
194 comprehensive review described in this Subsection (4).
195 (5) (a) Within 30 days after receiving the identifying information for a person under
196 Subsection (1), the department shall give written notice to the person and to the human services
197 licensee or applicant with whom the person is associated of:
198 (i) the department's decision regarding its background screening clearance and findings;
199 and
200 (ii) a listing of any convictions found in the search.
201 (b) With the notice described in Subsection (5)(a), the department shall also give to the
202 person the details of any comprehensive review conducted under Subsection (4).
203 (c) If the notice under Subsection (5)(a) states that the person is not approved to have
204 direct access to children or vulnerable adults, the notice shall further advise the persons to whom
205 the notice is given that either the person or the human services licensee or applicant with whom
206 the person is associated, or both, may, pursuant to Subsection 62A-2-111 (2), request a hearing in
207 the department's Office of Administrative Hearings, to challenge the department's decision.
208 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
209 department shall make rules, consistent with this chapter:
210 (i) defining procedures for the challenge of its background screening decision described
211 in this Subsection (5); and

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- 8 - 212 (ii) expediting the process for renewal of a license pursuant to the requirements of this
213 section and other applicable sections.
214 Section 3. Section 62A-2-121 is amended to read:
215 62A-2-121. Access to child abuse and neglect information for licensing purposes.
216 (1) With respect to human services licensees, the department may access only the licensing
217 part of the Division of Child and Family Service's management information system created by
218 Section 62A-4a-116 for the purpose of:
219 (a) determining whether a person associated with a licensee, [who provides care described
220 in Subsection (2)] with direct access to children, has a substantiated finding of abuse or neglect;
221 and
222 (b) informing a licensee[, who provides care described in Subsection (2),] that a person
223 associated with the licensee has a substantiated finding of child abuse or neglect.
224 [(2) (a) A licensee or individual applying for or renewing a license to provide child-placing
225 services, youth programs, substitute care, foster care, or institutionalized care to children shall
226 submit to the department the name and other identifying information of a person associated with
227 the licensee.]
228 [(b) The office] (2) After receiving identifying information for a person under Subsection
229 62A-2-120 (1), the department shall process the information [to determine whether the licensee or
230 a person associated with a licensee has a substantiated finding of child abuse or neglect] for the
231 purposes described in Subsection (1).
232 (3) The [office] department shall adopt rules under Title 63, Chapter 46a, Utah
233 Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under
234 which a person who has direct access to children and who has a substantiated finding of child
235 abuse or neglect under Title 62A, Chapter 4a, Child and Family Services, may provide
236 [child-placing services, foster care, youth programs, substitute care, or institutionalized care for
237 children in a facility licenced by the department] services to children.
238 Section 4. Section 62A-2-122 is enacted to read:
239 62A-2-122. Access to vulnerable adult abuse and neglect information for licensing
240 purposes.
241 (1) With respect to human services licensees, the department may access the data base
242 created by Section 62A-3-311.1 for the purpose of:

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- 9 - 243 (a) determining whether a person associated with a licensee, with direct access to
244 vulnerable adults, has a substantiated finding of abuse, neglect, or exploitation; and
245 (b) informing a licensee that a person associated with the licensee has a substantiated
246 finding of abuse, neglect, or exploitation.
247 (2) After receiving identifying information for a person under Subsection 62A-2-120 (1),
248 the department shall process the information for the purposes described in Subsection (1).
249 (3) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
250 Rulemaking Act, consistent with this chapter and consistent with Section 62A-3-311.1 , defining
251 the circumstances under which a person who has direct access to vulnerable adults and who has
252 a substantiated finding of abuse, neglect, or exploitation may provide services to vulnerable adults.
253 Section 5. Repealer.
254 This act repeals:
255 Section 62A-4a-413, Agencies and individuals providing services to children -- Felony
256 or misdemeanor conviction.