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S.B. 101 Enrolled
This act amends the Human Services Code. The act adds new defined terms and modifies
others. The act excludes individuals serving on certain governing bodies and boards from
the requirement of criminal background checks. The act modifies licensing requirements
of human services licensees and persons associated with a licensee. The act amends criminal
background check provisions. The act requires that the Department of Human Services and
the Human Services Licensing Board conduct a comprehensive review of criminal and court
records and related circumstances in connection with certain convictions found in a search.
The act clarifies and modifies the process for challenging a decision by the department not
to approve a person to have direct access in a licensee program serving children or
vulnerable adults. The act makes technical changes.
This act affects sections of Utah Code Annotated 1953 as follows:
62A-2-101, as last amended by Chapter 358, Laws of Utah 1998
62A-2-120, as enacted by Chapter 358, Laws of Utah 1998
62A-2-121, as last amended by Chapter 164, Laws of Utah 1999
62A-2-122, Utah Code Annotated 1953
62A-4a-413, as last amended by Chapters 263 and 358, Laws of Utah 1998
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-2-101 is amended to read:
As used in this chapter:
(1) "Adult day care" means continuous care and supervision for three or more adults for at
least four but less than 24 hours a day, that meets the needs of functionally impaired adults through
a comprehensive program that provides a variety of health, social, recreational, and related support
services in a protective setting.
(2) "Child" means a person under 18 years of age.
child under 18 years of age, temporarily or permanently, for the purpose of:
(a) finding a person to adopt the child;
(b) placing the child temporarily or permanently in a home for adoption; or
(c) foster home placement.
services licensee under this chapter.
or more persons who are unrelated to the owner or provider and who have emotional, psychological,
developmental, physical, or behavioral dysfunctions, impairments, or chemical dependencies. Day
treatment is provided in lieu of, or in coordination with, a more restrictive residential or inpatient
environment or service.
(7) "Direct access" means that an individual has, or likely will have, contact with or access
to a child or vulnerable adult that provides the individual with an opportunity for personal
communication or touch.
to provide psychological treatment and educational services to perpetrators and victims of domestic
(10) "Elder adult" means a person 65 years of age or older.
home, or a facility or program, licensed by the department, that provides care, secure treatment,
inpatient treatment, residential treatment, residential support, adult day care, day treatment,
outpatient treatment, domestic violence treatment, child placing services, or social detoxification.
(14) "Minor" has the same meaning as "child."
designed to improve and enhance social or psychological functioning for those whose physical and
emotional status allows them to continue functioning in their usual living environment.
of the governing body, employee, provider of care, [
or of an applicant to become a licensee.
(b) Notwithstanding Subsection (17)(a), "person associated with the licensee" does not
include an individual serving on either of the following bodies unless that individual has direct
access to children or vulnerable adults:
(i) a county governing body designated as a local mental health authority under Section
17A-3-602 or as a local substance abuse authority under Section 17A-3-701 ; or
(ii) a board of an organization operating under a contract to provide comprehensive mental
health or substance abuse programs or services for the local mental health authority or substance
a protective service to individuals or families who are disabled or who are experiencing a dislocation
or emergency which prevents them from providing these services for themselves or their families.
Treatment is not a necessary component of residential support.
more individuals unrelated to the owner or provider that offers room or board and specialized
treatment, rehabilitation, or habilitation services for persons with emotional, psychological,
developmental, or behavioral dysfunctions, impairments, or chemical dependencies. In residential
treatment, individuals are assisted in acquiring the social and behavioral skills necessary for living
independently in the community.
in the custody of the state and includes a foster care home and a legal risk home.
persons whose current functioning is such that they cannot live independently or in a less restrictive
environment. Secure treatment differs from residential treatment to the extent that it requires
intensive supervision, locked doors, and other security measures which are imposed on residents
with neither their consent nor control.
intoxicated, that are provided outside of a health care facility licensed under Title 26, Chapter 21,
Health Care Facility Licensure and Inspection Act, and that include:
(a) room and board for persons who are unrelated to the owner or manager of the facility;
(b) specialized rehabilitation to acquire sobriety; and
(c) aftercare services.
grandparents, brothers, sisters, uncles, or aunts.
(24) "Vulnerable adult" means an elder adult or an adult who has a mental or physical
impairment that substantially affects the person's ability to:
(a) provide personal protection;
(b) provide necessities such as food, shelter, clothing, or mental or other health care;
(c) obtain services necessary for health, safety, or welfare;
(d) carry out the activities of daily living;
(e) manage the adult's own resources; or
(f) comprehend the nature and consequences of remaining in a situation of abuse, neglect,
behavioral, substance abuse[
accommodation of the youth;
Boy Scouts, Girl Scouts, 4-H, and other such organizations.
Section 2. Section 62A-2-120 is amended to read:
62A-2-120. Criminal background checks.
(1) (a) [
for an initial license [
department the [
all persons associated with the licensee, as defined in Section 62A-2-101 , with direct access to
children or vulnerable adults. This information for a given person associated with the licensee shall
be submitted before that person is permitted to have direct access to children or vulnerable adults.
(b) The Criminal Investigations and Technical Services Division of the Department of Public
Safety shall process that information to determine whether the individual has been convicted of any
(c) If an individual has not lived in Utah for five years, the individual shall submit
fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted to
the FBI through the Criminal Investigations and Technical Services Division.
(2) The department shall approve a person for whom identifying information is submitted
under Subsection (1) to have direct access in the licensee program serving children or vulnerable
(a) the person is found to have no criminal history record; or
(b) (i) the only convictions in the person's criminal history record are:
(A) misdemeanors not involving any of the offenses described in Subsection (3); or
(B) infractions not involving any of the offenses described in Subsection (3); and
(ii) the date of the last conviction under Subsection (2)(b)(i) is more than five years before
the date of the search.
(3) The department may not approve a person to have direct access in the licensee program
serving children or vulnerable adults if the person has at any time been convicted of an offense,
whether a felony, misdemeanor, or infraction, that was:
(a) identified as domestic violence, lewdness, assault, or battery;
(b) a violation of any pornography law, including sexual exploitation of a minor;
(d) identified in Title 76, Utah Criminal Code, as an offense against the family or an offense
against the person; or
(e) identified in Title 76, Utah Criminal Code, as a sexual offense.
(4) (a) If a person for whom identifying information is submitted under Subsection (1) is not
approved by the department under Subsection (2) to have direct access in the licensee program
serving children or vulnerable adults, the department shall conduct a comprehensive review of
criminal and court records and related circumstances if a person for whom identifying information
is submitted under Subsection (1):
(i) has been convicted at any time of any felony not listed in Subsection (3);
(ii) has been convicted within five years of the date of the search of:
(A) any misdemeanor not listed in Subsection (3); or
(B) any infraction not listed in Subsection (3); or
(iii) has been convicted at any time of a protective order or ex parte protective order
violation under Section 76-5-18 or a similar statute in another state.
(b) The comprehensive review under Subsection (4)(a) shall include an examination of:
(i) the date of the offense;
(ii) the nature and seriousness of the offense;
(iii) the circumstances under which the offense occurred;
(iv) the age of the offender when the offense was committed;
(v) whether the offense was an isolated or repeated incident;
(vi) whether the offense directly relates to abuse of a child or vulnerable adult, including:
(A) actual or threatened, nonaccidental physical or mental harm;
(B) sexual abuse;
(C) sexual exploitation; and
(D) negligent treatment;
(vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
treatment received, or additional academic or vocational schooling completed, by the person; and
(viii) any other pertinent information.
(c) At the conclusion of the comprehensive review under this Subsection (4), the department
shall either approve or not approve the person who is the subject of the review to have direct access
to children or vulnerable adults, based upon the determination of the department and the Human
Services Licensing Board of whether or not granting approval would likely create a risk of harm to
a child or vulnerable adult.
(d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department may make rules, consistent with this chapter, defining procedures for the comprehensive
review described in this Subsection (4).
(5) (a) Within 30 days after receiving the identifying information for a person under
Subsection (1), the department shall give written notice to the person and to the human services
licensee or applicant with whom the person is associated of:
(i) the department's decision regarding its background screening clearance and findings; and
(ii) a listing of any convictions found in the search.
(b) With the notice described in Subsection (5)(a), the department shall also give to the
person the details of any comprehensive review conducted under Subsection (4).
(c) If the notice under Subsection (5)(a) states that the person is not approved to have direct
access to children or vulnerable adults, the notice shall further advise the persons to whom the notice
is given that either the person or the human services licensee or applicant with whom the person is
associated, or both, may, pursuant to Subsection 62A-2-111 (2), request a hearing in the department's
Office of Administrative Hearings, to challenge the department's decision.
(d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
department shall make rules, consistent with this chapter:
(i) defining procedures for the challenge of its background screening decision described in
this Subsection (5); and
(ii) expediting the process for renewal of a license pursuant to the requirements of this
section and other applicable sections.
Section 3. Section 62A-2-121 is amended to read:
62A-2-121. Access to child abuse and neglect information for licensing purposes.
(1) With respect to human services licensees, the department may access only the licensing
part of the Division of Child and Family Service's management information system created by
Section 62A-4a-116 for the purpose of:
(a) determining whether a person associated with a licensee, [
(b) informing a licensee[
associated with the licensee has a substantiated finding of child abuse or neglect.
62A-2-120 (1), the department shall process the information [
purposes described in Subsection (1).
(3) The [
Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under
which a person who has direct access to children and who has a substantiated finding of child abuse
or neglect under Title 62A, Chapter 4a, Child and Family Services, may provide [
Section 4. Section 62A-2-122 is enacted to read:
62A-2-122. Access to vulnerable adult abuse and neglect information for licensing
(1) With respect to human services licensees, the department may access the data base
created by Section 62A-3-311.1 for the purpose of:
(a) determining whether a person associated with a licensee, with direct access to vulnerable
adults, has a substantiated finding of abuse, neglect, or exploitation; and
(b) informing a licensee that a person associated with the licensee has a substantiated finding
of abuse, neglect, or exploitation.
(2) After receiving identifying information for a person under Subsection 62A-2-120 (1), the
department shall process the information for the purposes described in Subsection (1).
(3) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
Rulemaking Act, consistent with this chapter and consistent with Section 62A-3-311.1 , defining the
circumstances under which a person who has direct access to vulnerable adults and who has a
substantiated finding of abuse, neglect, or exploitation may provide services to vulnerable adults.
Section 5. Repealer.
This act repeals:
Section 62A-4a-413, Agencies and individuals providing services to children -- Felony
or misdemeanor conviction.
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