H.B. 321

1

BACKGROUND CHECKS FOR BOARDING
2 SCHOOLS
3 2005 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Bradley G. Last
6
7 LONG TITLE
8 General Description:
9 This bill amends the Utah Human Services Code to provide for a background check on
10 a boarding school employee or an applicant for employment at a boarding school.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . provides the Department of Human Services with access to records to determine
15 whether a boarding school employee or an applicant for employment at a boarding
16 school is listed in the:
17 . Licensing Information System of the Division of Child and Family Services;
18 . juvenile court records as having a substantiated finding of severe child abuse or
19 neglect; or
20 . statewide database of the Division of Aging and Adult Services as having a
21 substantiated finding of abuse, neglect, or exploitation of a vulnerable adult;
22 . provides that the Department of Human Services shall provide a boarding school
23 with a statement of the status of a boarding school employee or an applicant for
24 employment at the boarding school in the records described above if the boarding
25 school:
26 . provides the Department of Human Services with a release signed by the
27 boarding school employee or applicant for employment at the boarding school;

28 . provides the Department of Human Services with the required identifying
29 information; and
30 . pays a fee to the Department of Human Services to cover the cost of processing
31 and providing the statement;
32 . grants rulemaking authority to the Department of Human Services to implement the
33 provisions of this bill;
34 . requires the Department of Human Services to establish a fee for a boarding school
35 to reimburse the Department of Human Services for the cost of processing and
36 providing the statement regarding the status of a boarding school employee or an
37 applicant for employment at the boarding school in the records described above; and
38 . makes technical changes.
39 Monies Appropriated in this Bill:
40 None
41 Other Special Clauses:
42 None
43 Utah Code Sections Affected:
44 AMENDS:
45 62A-2-101, as last amended by Chapter 22, Laws of Utah 2003
46 62A-2-121, as last amended by Chapter 86, Laws of Utah 2004
47 62A-2-122, as enacted by Chapter 300, Laws of Utah 2002
48 62A-4a-116.2, as last amended by Chapter 86, Laws of Utah 2004
49 ENACTS:
50 62A-2-123, Utah Code Annotated 1953
51
52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 62A-2-101 is amended to read:
54 62A-2-101. Definitions.
55 As used in this chapter:
56 (1) "Adult day care" means continuous care and supervision for three or more adults
57 for at least four but less than 24 hours a day, that meets the needs of functionally impaired
58 adults through a comprehensive program that provides a variety of health, social, recreational,

59 and related support services in a protective setting.
60 (2) (a) "Boarding school" means a private school that:
61 (i) uses a regionally accredited education program;
62 (ii) provides a residence to the school's students:
63 (A) for the purpose of enabling the school's students to attend classes at the school; and
64 (B) as an ancillary service to educating the students at the school;
65 (iii) has the primary purpose of providing the school's students with an education, as
66 defined in Subsection (2)(b)(i); and
67 (iv) (A) does not provide the treatment or services described in Subsection (20); or
68 (B) provides the treatment or services described in Subsection (20) on a limited basis,
69 as described in Subsection (2)(b)(ii).
70 (b) (i) For purposes of Subsection (2)(a)(iii), "education" means a course of study for
71 one or more of grades kindergarten through 12th grade.
72 (ii) For purposes of Subsection (2)(a)(iv)(B), a private school provides the treatment or
73 services described in Subsection (20) on a limited basis if:
74 (A) the treatment or services described in Subsection (20) are provided only as an
75 incidental service to a student; and
76 (B) the school does not:
77 (I) specifically solicit a student for the purpose of providing the treatment or services
78 described in Subsection (20); or
79 (II) have a primary purpose of providing the services described in Subsection (20).
80 (3) "Boarding school applicant" means a person who:
81 (a) is an employee of a boarding school; or
82 (b) has applied for employment with a boarding school.
83 [(2)] (4) "Child" means a person under 18 years of age.
84 [(3)] (5) "Child placing" means receiving, accepting, or providing custody or care for
85 any child [under 18 years of age], temporarily or permanently, for the purpose of:
86 (a) finding a person to adopt the child;
87 (b) placing the child [temporarily or permanently] in a home for adoption; or
88 (c) foster home placement.
89 [(4)] (6) "Client" means an individual who receives or has received services from a

90 human services licensee [under this chapter].
91 [(5)] (7) (a) "Day treatment" means specialized treatment for less than 24 hours a day
92 for four or more persons who are unrelated to the owner or provider and who have emotional,
93 psychological, developmental, physical, or behavioral dysfunctions, impairments, or chemical
94 dependencies.
95 (b) Day treatment is provided in lieu of, or in coordination with, a more restrictive
96 residential or inpatient environment or service.
97 [(6)] (8) "Department" means the Department of Human Services.
98 [(7)] (9) "Direct access" means that an individual has, or likely will have, contact with
99 or access to a child or vulnerable adult that provides the individual with an opportunity for
100 personal communication or touch.
101 [(8)] (10) "Director" means the director of the Office of Licensing.
102 [(9)] (11) "Domestic violence treatment program" means a nonresidential program
103 designed to provide psychological treatment and educational services to perpetrators and
104 victims of domestic violence.
105 [(10)] (12) "Elder adult" means a person 65 years of age or older.
106 [(11)] (13) "Executive director" means the executive director of the department.
107 [(12)] (14) "Human services licensee" or "licensee" means a youth program, resource
108 family home, or a facility or program, licensed by the department, that provides care, secure
109 treatment, inpatient treatment, residential treatment, residential support, adult day care, day
110 treatment, outpatient treatment, domestic violence treatment, child placing services, or social
111 detoxification.
112 [(13)] (15) "Licensing board" means the Human Services Licensing Board.
113 [(14)] (16) "Minor" has the same meaning as "child."
114 [(15)] (17) "Office" means the Office of Licensing within the Department of Human
115 Services.
116 [(16)] (18) "Outpatient treatment" means individual, family, or group therapy or
117 counseling designed to improve and enhance social or psychological functioning for those
118 whose physical and emotional status allows them to continue functioning in their usual living
119 environment.
120 [(17)] (19) (a) "Person associated with the licensee" means an owner, director, member

121 of the governing body, employee, provider of care, or volunteer of:
122 (i) a human services licensee; or [of]
123 (ii) an applicant to become a licensee.
124 (b) Notwithstanding Subsection [(17)] (19)(a), "person associated with the licensee"
125 does not include an individual serving on [either of] the following bodies unless that individual
126 has direct access to children or vulnerable adults:
127 (i) a local mental health authority under Section 17-43-301 [or];
128 (ii) a local substance abuse authority under Section 17-43-201 ; or
129 [(ii)] (iii) a board of an organization operating under a contract to provide
130 comprehensive:
131 (A) mental health or substance abuse programs; or
132 (B) services for the local mental health authority or substance abuse authority.
133 [(18)] (20) (a) "Residential support" means arranging for or providing the necessities of
134 life as a protective service to individuals or families who are disabled or who are experiencing
135 a dislocation or emergency which prevents them from providing these services for themselves
136 or their families.
137 (b) Treatment is not a necessary component of residential support.
138 [(19)] (21) (a) "Residential treatment" means a 24-hour group living environment for
139 four or more individuals unrelated to the owner or provider that offers room or board and
140 specialized treatment, rehabilitation, or habilitation services for persons with emotional,
141 psychological, developmental, or behavioral dysfunctions, impairments, or chemical
142 dependencies.
143 (b) In residential treatment, individuals are assisted in acquiring the social and
144 behavioral skills necessary for living independently in the community.
145 [(20)] (22) "Resource family home" means a home licensed to provide services to a
146 child in the custody of the state and includes a foster care home and a legal risk home.
147 [(21)] (23) (a) "Secure treatment" means 24-hour specialized residential treatment or
148 care for persons whose current functioning is such that they cannot live independently or in a
149 less restrictive environment.
150 (b) Secure treatment differs from residential treatment to the extent that it requires
151 intensive supervision, locked doors, and other security measures which are imposed on

152 residents with neither their consent nor control.
153 [(22)] (24) "Social detoxification" means short-term residential services for persons
154 who are intoxicated, that are provided outside of a health care facility licensed under Title 26,
155 Chapter 21, Health Care Facility [Licensure] Licensing and Inspection Act, and that include:
156 (a) room and board for persons who are unrelated to the owner or manager of the
157 facility;
158 (b) specialized rehabilitation to acquire sobriety; and
159 (c) aftercare services.
160 [(23)] (25) "Unrelated persons" means persons other than parents, legal guardians,
161 grandparents, brothers, sisters, uncles, or aunts.
162 [(24)] (26) "Vulnerable adult" means an elder adult or an adult who has a mental or
163 physical impairment that substantially affects the person's ability to:
164 (a) provide personal protection;
165 (b) provide necessities such as food, shelter, clothing, or mental or other health care;
166 (c) obtain services necessary for health, safety, or welfare;
167 (d) carry out the activities of daily living;
168 (e) manage the adult's own resources; or
169 (f) comprehend the nature and consequences of remaining in a situation of abuse,
170 neglect, or exploitation.
171 [(25)] (27) (a) "Youth program" means a nonresidential program, designed to provide
172 behavioral, substance abuse or mental health services to minors that:
173 (i) serves [either] adjudicated or nonadjudicated youth;
174 (ii) charges a fee for its services;
175 (iii) may or may not provide host homes or other arrangements for overnight
176 accommodation of the youth;
177 (iv) may or may not provide all or part of its services in the outdoors;
178 (v) may or may not limit or censor access to parents or guardians; and
179 (vi) prohibits or restricts a minor's ability to leave the program at any time of his own
180 free will.
181 (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
182 Scouts, 4-H, and other such organizations.

183 Section 2. Section 62A-2-121 is amended to read:
184 62A-2-121. Access to abuse and neglect information for licensing purposes.
185 (1) With respect to a human services [licensees] licensee or a boarding school
186 applicant, the department may access only the Licensing Information System of the Division of
187 Child and Family Services created by Section 62A-4a-116.2 and juvenile court records under
188 Subsection 78-3a-320 [(4)](6), for the purpose of:
189 (a) (i) determining whether a person associated with a licensee, with direct access to
190 children[,]:
191 (A) is listed in the Licensing Information System; or
192 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
193 neglect under Subsections 78-3a-320 (1) and (2); and
194 [(b)] (ii) informing a licensee that a person associated with the licensee:
195 (A) is listed in the Licensing Information System; or
196 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
197 neglect under Subsections 78-3a-320 (1) and (2)[.]; or
198 (b) (i) determining whether a boarding school applicant:
199 (A) is listed in the Licensing Information System; or
200 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
201 neglect under Subsections 78-3a-320 (1) and (2); and
202 (ii) informing a boarding school that a boarding school applicant:
203 (A) is listed in the Licensing Information System; or
204 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
205 neglect under Subsections 78-3a-320 (1) and (2).
206 (2) Notwithstanding Subsection (1), the department may access the Division of Child
207 and Family Service's Management Information System under Section 62A-4a-116 for the
208 purpose of licensing and monitoring foster parents.
209 (3) After receiving identifying information for a person under Subsection
210 62A-2-120 (1), the department shall process the information for the purposes described in
211 Subsection (1).
212 (4) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
213 Rulemaking Act, consistent with this chapter, defining the circumstances under which a person

214 [who has] may have direct access to children [and who] when:
215 (a) the person is listed in the Licensing Information System [or has] of the Division of
216 Child and Family Services created by Section 62A-4a-116.2 ; or
217 (b) juvenile court records show that a court made a substantiated finding [by a court of]
218 under Section 78-3a-320 , that the person committed a severe type of child abuse or neglect
219 [under Subsections 78-3a-320 (1) and (2) may provide services to children].
220 Section 3. Section 62A-2-122 is amended to read:
221 62A-2-122. Access to vulnerable adult abuse and neglect information for
222 licensing purposes.
223 (1) With respect to a human services [licensees] licensee, or a boarding school
224 applicant, the department may access the data base created by Section 62A-3-311.1 for the
225 purpose of:
226 (a) (i) determining whether a person associated with a licensee, with direct access to
227 vulnerable adults, has a substantiated finding of:
228 (A) abuse[,];
229 (B) neglect[,]; or
230 (C) exploitation; and
231 [(b)] (ii) informing a licensee that a person associated with the licensee has a
232 substantiated finding of:
233 (A) abuse[,];
234 (B) neglect[,]; or
235 (C) exploitation[.]; or
236 (b) (i) determining whether a boarding school applicant has a substantiated finding of:
237 (A) abuse;
238 (B) neglect; or
239 (C) exploitation; and
240 (ii) informing a boarding school that a boarding school applicant has a substantiated
241 finding of:
242 (A) abuse;
243 (B) neglect; or
244 (C) exploitation.

245 (2) After receiving identifying information for a person under Subsection
246 62A-2-120 (1), the department shall process the information for the purposes described in
247 Subsection (1).
248 (3) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
249 Rulemaking Act, consistent with this chapter and consistent with Section 62A-3-311.1 ,
250 defining the circumstances under which a person [who has] may have direct access or provide
251 services to vulnerable adults [and who has a substantiated finding of abuse, neglect, or
252 exploitation may provide services to vulnerable adults.] when the person is listed in the
253 statewide database of the Division of Aging and Adult Services created by Section
254 62A-3-311.1 as having a substantiated finding of abuse, neglect, or exploitation.
255 Section 4. Section 62A-2-123 is enacted to read:
256 62A-2-123. Background check on a boarding school applicant -- Rulemaking
257 authority -- Establishment of fee to pay for background check.
258 (1) Consistent with Subsection (2), the department shall provide to a boarding school a
259 written statement regarding whether:
260 (a) a boarding school applicant is listed in the statewide database of the Division of
261 Aging and Adult Services created by Section 62A-3-311.1 as having a substantiated finding of
262 abuse, neglect, or exploitation;
263 (b) a boarding school applicant is listed in the Licensing Information System of the
264 Division of Child and Family Services created by Section 62A-4a-116.2 ; or
265 (c) juvenile court records show that a court made a substantiated finding under Section
266 78-3a-320 , that a boarding school applicant committed a severe type of child abuse or neglect.
267 (2) To receive the written statement described in Subsection (1), a boarding school
268 must submit to the department:
269 (a) on a form prepared by the department, a release signed by the boarding school
270 applicant, authorizing the department to release the information described in Subsection (1) to
271 the boarding school;
272 (b) the boarding school applicant's:
273 (i) name;
274 (ii) fingerprints, if required by the department; and
275 (iii) other identifying information required by the department; and

276 (c) a fee to reimburse the department for the cost of processing and providing the
277 statement described in Subsection (1).
278 (3) The department shall:
279 (a) make rules pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
280 to implement the provisions of this section; and
281 (b) establish a fee amount for a boarding school to reimburse the department for the
282 cost of processing and providing the statement described in Subsection (1).
283 Section 5. Section 62A-4a-116.2 is amended to read:
284 62A-4a-116.2. Licensing Information System -- Contents -- Juvenile court finding
285 -- Protected record -- Access -- Criminal penalty.
286 (1) (a) The division shall maintain a sub-part of the Management Information System
287 established pursuant to Section 62A-4a-116 , to be known as the Licensing Information System,
288 to be used [solely]:
289 (i) for licensing purposes[.]; or
290 (ii) as otherwise specifically provided for by law.
291 (b) The Licensing Information System shall include only the following information:
292 [(a)] (i) the information described in Subsections 62A-4a-116.1 (1)(a) and (6)(b);
293 [(b)] (ii) consented-to supported findings by alleged perpetrators under Subsection
294 62A-4a-116.1 (6)(a)(iii); and
295 [(c)] (iii) the information in the licensing part of the division's Management
296 Information System as of May 6, 2002.
297 (2) Notwithstanding Subsection (1), the department's access to information in the
298 Management Information System for the licensure and monitoring of foster parents is governed
299 by Sections 62A-4a-116 and 62A-2-121 .
300 (3) (a) [The] Subject to Subsection (3)(b), upon receipt of a finding from the juvenile
301 court under Section 78-3a-320 , the division shall:
302 (i) promptly amend the Licensing Information System[, upon receipt of a finding from
303 the juvenile court under Section 78-3a-320 ,]; and [shall]
304 (ii) enter the [same] information in the Management Information System. [However]
305 (b) Notwithstanding Subsection (3)(a), if a finding of unsubstantiated or without merit
306 is appealed, the supported finding shall not be amended until the appeal is concluded.

307 (4) (a) Information contained in the Licensing Information System is classified as a
308 protected record under Title 63, Chapter 2, Government Records Access and Management Act.
309 (b) Notwithstanding the disclosure provisions of Title 63, Chapter 2, Government
310 Records Access and Management Act, the information contained in the Licensing Information
311 System may only be used or disclosed as specifically provided in this chapter and Section
312 62A-2-121 [and].
313 (c) The information described in Subsection (4)(b) is accessible only to:
314 [(a)] (i) the Office of Licensing within the department[,]:
315 (A) for licensing purposes [only]; or
316 (B) as otherwise specifically provided for by law;
317 [(b)] (ii) the division[, for the following purposes] to:
318 [(i)] (A) [to] screen a person at the request of the Office of the Guardian Ad Litem
319 Director[,]:
320 (I) at the time that person seeks a paid or voluntary position with the Office of the
321 Guardian Ad Litem Director; and
322 (II) each year [thereafter that] after the person described in Subsection (4)(c)(ii)(A)(I)
323 remains with that office; and
324 [(ii)] (B) [to] respond to a request for information from a person whose name is listed
325 in the Licensing Information System;
326 [(c)] (iii) two persons designated by and within the Department of Health, only for the
327 following purposes:
328 [(i)] (A) licensing a child care program or provider; or
329 [(ii)] (B) determining whether a person associated with a covered health care facility,
330 as defined by the Department of Health by rule, who provides direct care to a child, has a
331 supported finding of severe child abuse or neglect; and
332 [(d)] (iv) the department, as specifically provided in this chapter.
333 (5) The two persons designated by the Department of Health under Subsection
334 (4)(c)(iii) shall adopt measures to:
335 (a) protect the security of the Licensing Information System; and
336 (b) strictly limit access to the Licensing Information System to those persons
337 designated by statute.

338 (6) All persons designated by statute as having access to information contained in the
339 Licensing Information System shall receive training from the department with respect to:
340 (a) accessing the Licensing Information System;
341 (b) maintaining strict security; and
342 (c) the criminal provisions of Sections 62A-4a-412 and 63-2-801 pertaining to the
343 improper release of information.
344 (7) (a) No person, except those authorized by this chapter, may request another person
345 to obtain or release any other information in the Licensing Information System to screen for
346 potential perpetrators of child abuse or neglect.
347 (b) A person who requests information knowing that it is a violation of this Subsection
348 (7) to do so is subject to the criminal penalty described in Sections 62A-4a-412 and 63-2-801 .




Legislative Review Note
as of 2-11-05 4:33 PM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel