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S.B. 63 Enrolled
8 LONG TITLE
9 General Description:
10 This bill amends the Aging and Adult Services chapter of the Utah Human Services
11 Code and related provisions.
12 Highlighted Provisions:
13 This bill:
14 . defines and modifies terms;
15 . clarifies the rulemaking authority of the Division of Aging and Adult Services;
16 . describes the powers and duties of Adult Protective Services;
17 . clarifies that a law enforcement agency has discretion regarding whether to open an
18 investigation of potential criminal conduct against a vulnerable adult;
19 . clarifies provisions regarding the collection of photographic, audio, or video
20 evidence relating to the abuse, neglect, or exploitation of a vulnerable adult;
21 . removes or modifies time restrictions relating to an adult protection case;
22 . modifies provisions relating to access to records maintained by Adult Protective
24 . modifies provisions related to the offender database maintained by Adult Protective
25 Services, including findings made, the notice given to alleged perpetrators, and
26 procedures to challenge findings;
27 . modifies provisions relating to emergency orders; and
28 . makes technical changes.
29 Monies Appropriated in this Bill:
31 Other Special Clauses:
33 Utah Code Sections Affected:
35 62A-2-122, as last amended by Laws of Utah 2005, Chapters 60, 107, and 188
36 62A-3-109, as enacted by Laws of Utah 1988, Chapter 1
37 62A-3-301, as last amended by Laws of Utah 2007, Chapter 31
38 62A-3-302, as last amended by Laws of Utah 2006, Chapter 31
39 62A-3-303, as repealed and reenacted by Laws of Utah 2002, Chapter 108
40 62A-3-304, as repealed and reenacted by Laws of Utah 2002, Chapter 108
41 62A-3-305, as repealed and reenacted by Laws of Utah 2002, Chapter 108
42 62A-3-308, as repealed and reenacted by Laws of Utah 2002, Chapter 108
43 62A-3-309, as repealed and reenacted by Laws of Utah 2002, Chapter 108
44 62A-3-311, as repealed and reenacted by Laws of Utah 2002, Chapter 108
45 62A-3-311.1, as last amended by Laws of Utah 2005, Chapter 50
46 62A-3-312, as repealed and reenacted by Laws of Utah 2002, Chapter 108
47 62A-3-318, as enacted by Laws of Utah 2002, Chapter 108
48 62A-3-320, as enacted by Laws of Utah 2002, Chapter 108
49 63-2-202, as last amended by Laws of Utah 2005, Chapter 201
50 63-2-302, as last amended by Laws of Utah 2006, Chapter 2
52 62A-3-311.5, Utah Code Annotated 1953
53 REPEALS AND REENACTS:
54 62A-3-307, as repealed and reenacted by Laws of Utah 2002, Chapter 108
56 62A-3-306, as repealed and reenacted by Laws of Utah 2002, Chapter 108
57 62A-3-313, as enacted by Laws of Utah 2002, Chapter 108
59 Be it enacted by the Legislature of the state of Utah:
60 Section 1. Section 62A-2-122 is amended to read:
61 62A-2-122. Access to vulnerable adult abuse and neglect information.
62 (1) For purposes of this section:
63 (a) "Direct service worker" is as defined in Section 62A-5-101 [
64 (b) "Personal care attendant" is as defined in Section 62A-3-101 .
65 (2) With respect to a licensee, a certified local inspector applicant, a direct service
66 worker, or a personal care attendant, the department may access the [
67 created by Section 62A-3-311.1 for the purpose of:
68 (a) (i) determining whether a person associated with a licensee, with direct access to
69 vulnerable adults, has a supported or substantiated finding of:
70 (A) abuse;
71 (B) neglect; or
72 (C) exploitation; and
73 (ii) informing a licensee that a person associated with the licensee has a supported or
74 substantiated finding of:
75 (A) abuse;
76 (B) neglect; or
77 (C) exploitation;
78 (b) (i) determining whether a certified local inspector applicant has a supported or
79 substantiated finding of:
80 (A) abuse;
81 (B) neglect; or
82 (C) exploitation; and
83 (ii) informing a local government that a certified local inspector applicant has a
84 supported or substantiated finding of:
85 (A) abuse;
86 (B) neglect; or
87 (C) exploitation; [
88 (c) (i) determining whether a direct service worker has a supported or substantiated
89 finding of:
90 (A) abuse;
91 (B) neglect; or
92 (C) exploitation; and
93 (ii) informing a direct service worker or the direct service worker's employer that the
94 direct service worker has a supported or substantiated finding of:
95 (A) abuse;
96 (B) neglect; or
97 (C) exploitation; or
98 (d) (i) determining whether a personal care attendant has a supported or substantiated
99 finding of:
100 (A) abuse;
101 (B) neglect; or
102 (C) exploitation; and
103 (ii) informing a person described in Subsections 62A-3-101 (9)(a)(i) through (iv) that a
104 personal care attendant has a supported or substantiated finding of:
105 (A) abuse;
106 (B) neglect; or
107 (C) exploitation[
108 (3) After receiving identifying information for a person under Subsection 62A-2-120 (1),
109 the department shall process the information for the purposes described in Subsection (2).
110 (4) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
111 Rulemaking Act, consistent with this chapter and [
112 62A, Chapter 3, Part 3, Abuse, Neglect, or Exploitation of Vulnerable Adults, defining the
113 circumstances under which a person may have direct access or provide services to vulnerable
114 adults when the person is listed in the statewide database of the Division of Aging and Adult
115 Services created by Section 62A-3-311.1 as having a supported or substantiated finding of
116 abuse, neglect, or exploitation.
117 Section 2. Section 62A-3-109 is amended to read:
118 62A-3-109. Adjudicative proceedings.
120 comply with the procedures and requirements of Title 63, Chapter 46b, [
122 Section 3. Section 62A-3-301 is amended to read:
123 62A-3-301. Definitions.
124 As used in this part:
125 (1) "Abandonment" means any knowing or intentional action or [
126 including desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves
127 the vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
128 medical or other health care.
129 (2) "Abuse" means:
130 (a) knowingly or intentionally:
132 (ii) causing harm[
133 (iii) placing another in fear of [
134 (b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
135 causes or is likely to cause harm to a vulnerable adult [
138 (c) emotional or psychological abuse;
139 (d) a sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
140 (e) deprivation of life sustaining treatment, or medical or mental health treatment,
142 (i) as provided in Title 75, Chapter 2a, Advance Health Care Directive Act; or
143 (ii) when informed consent, as defined in Section 76-5-111 , has been obtained.
144 (3) "Adult" means a person who is 18 years of age or older.
145 (4) "Adult protection case file" means [
146 any format, contained in [
149 (5) "Adult Protective Services" means the unit within the division responsible to
150 investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
151 protective services.
152 (6) "Capacity to consent" means the ability of a person to understand and communicate
153 regarding the nature and consequences of decisions relating to the person, and relating to the
154 person's property and lifestyle, including a decision to accept or refuse services.
156 that assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
157 supervision, medical or other health care, resource management, or other necessities.
162 (9) "Database" means the statewide database maintained by the division under Section
163 62A-3-311.1 .
167 immediate risk of death [
168 physical, emotional, or financial harm. [
172 intentional verbal or nonverbal conduct directed at a vulnerable adult [
175 anguish [
177 (b) "Emotional or psychological abuse" includes ridiculing, intimidating, yelling,
178 swearing, threatening, isolating, coercing, or harassing.
181 psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
182 knowingly or intentionally.
183 (16) "Inconclusive" means a finding by the division that there is not a reasonable basis
184 to conclude that abuse, neglect, or exploitation occurred.
186 which threatens deprivation of money, food, clothing, medicine, shelter, social interaction,
187 supervision, health care, or companionship, or which threatens isolation or abuse.
189 adult from having contact with another person by:
190 (i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
191 contrary to the [
192 visitor that the vulnerable adult is not present or does not want to meet with or talk to the
193 visitor, knowing that communication to be false;
194 (ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
195 from meeting with a visitor; or
196 (iii) making false or misleading statements to the vulnerable adult in order to induce the
197 vulnerable adult to refuse to receive communication from visitors or other family members.
198 (b) The term "isolation" does not include an act intended to protect the physical or
199 mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
200 instructions of a physician or other professional advisor of the vulnerable adult.
202 76-5-111 .
205 clothing, shelter, supervision, personal care, or dental, medical, or other health care for a
206 vulnerable adult, unless the vulnerable adult is able to provide or obtain the necessary care
207 without assistance; or
211 and with the degree of care that a reasonable person in a like position would exercise;
213 consent, resulting in deprivation of food, water, medication, health care, shelter, cooling,
214 heating, or other services necessary to maintain the vulnerable adult's well being;
216 treatment plan that causes or is likely to cause harm to the vulnerable adult;
227 (b) "Neglect" does not include conduct, or failure to take action, that is permitted or
228 excused under Title 75, Chapter 2a, Advance Health Care Directive Act.
229 (21) "Physical injury" includes the damage and conditions described in Section
230 76-5-111 .
232 ordered protective services[
244 (23) "Protective services" means services to protect a vulnerable adult from abuse,
245 neglect, or exploitation.
247 food, water, medication, health care, shelter, cooling, heating, safety, or other services
248 necessary to maintain the vulnerable adult's well being when that failure is the result of the
249 adult's mental or physical impairment. Choice of lifestyle or living arrangements may not, by
250 themselves, be evidence of self-neglect.
252 Section 76-5-111 .
259 (26) "Supported" means a finding by the division that there is a reasonable basis to
260 conclude that abuse, neglect, or exploitation occurred.
262 or power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or
263 fear of a vulnerable adult, or uses the person's role, relationship, or power to gain control
264 deceptively over the decision making of the vulnerable adult.
268 physical impairment which substantially affects that person's ability to:
269 (a) provide personal protection;
270 (b) provide necessities such as food, shelter, clothing, or mental or other health care;
271 (c) obtain services necessary for health, safety, or welfare;
272 (d) carry out the activities of daily living;
273 (e) manage the adult's own financial resources; or
274 (f) comprehend the nature and consequences of remaining in a situation of abuse,
275 neglect, or exploitation.
276 (29) "Without merit" means a finding that abuse, neglect, or exploitation did not occur.
277 Section 4. Section 62A-3-302 is amended to read:
278 62A-3-302. Purpose of Adult Protective Services Program.
279 Subject to the rules made by the division under Section 62A-3-106.5 , Adult Protective
280 Services [
281 (1) shall investigate or cause to be investigated reports of alleged abuse, neglect, or
282 exploitation of vulnerable adults [
283 (2) shall, where appropriate, provide short-term, limited protective services with the
284 permission of the affected vulnerable adult or the guardian or conservator of the vulnerable
286 (3) may make rules, in accordance with Title 63, Chapter 46a, Utah Administrative
287 Rulemaking Act, and develop procedures and policies [
288 (i) reporting and investigating incidents of abuse, neglect, or exploitation[
290 (ii) providing protective services to the extent that funds are appropriated by the
291 Legislature for this purpose.
292 Section 5. Section 62A-3-303 is amended to read:
293 62A-3-303. Powers and duties of Adult Protective Services.
294 In addition to all other powers and duties that Adult Protective Services is given under
295 this part, Adult Protective Services:
296 (1) shall maintain an intake system for receiving and screening reports;
297 (2) shall investigate reports;
298 (3) shall perform protective needs assessments;
299 (4) may coordinate with, or make referrals to, community resources;
300 (5) may provide limited services to a vulnerable adult, on a temporary basis, when
301 family or community resources are not available to provide for the protective needs of the
302 vulnerable adult;
304 department or the Department of Health for the purpose of conducting investigations;
306 (7) shall be given access to, or provided with, written statements, documents, exhibits,
307 and other items [
308 vulnerable adult who is the subject of an investigation [
309 (a) for a vulnerable adult who does not lack the capacity to consent, the vulnerable
310 adult signs a release of information [
312 (b) for a vulnerable adult who lacks the capacity to consent, [
313 subpoena [
315 (8) may institute proceedings in a court of competent jurisdiction to seek relief
316 necessary to carry out the provisions of this chapter;
318 (9) may require all persons, including family members of a vulnerable adult and any
319 caretaker, to cooperate with Adult Protective Services in carrying out its duties under this
320 chapter, including conducting investigations and providing protective services;
322 the state to assist and cooperate within their jurisdictional power with the court, the division,
323 and Adult Protective Services in furthering the purposes of this chapter;
325 exploitation; and
327 Section 6. Section 62A-3-304 is amended to read:
328 62A-3-304. Cooperation by caretaker.
329 A caretaker, facility, or other institution [
330 confidentiality standards [
331 (1) report abuse, neglect, or exploitation of a vulnerable adult in accordance with this
333 (2) cooperate with any Adult Protective Services investigation;
334 (3) provide Adult Protective Services with access to records or documents relating to
335 the vulnerable adult who is the subject of an investigation; or
336 (4) provide evidence in any judicial or administrative proceeding relating to a vulnerable
337 adult who is the subject of an investigation.
338 Section 7. Section 62A-3-305 is amended to read:
339 62A-3-305. Reporting requirements -- Investigation -- Immunity -- Violation --
340 Penalty -- Physician-patient privilege -- Nonmedical healing.
341 (1) Any person who has reason to believe that any vulnerable adult has been the subject
342 of abuse, neglect, or exploitation shall immediately notify Adult Protective Services intake or
343 the nearest law enforcement agency. When the initial report is made to law enforcement, law
344 enforcement shall immediately notify Adult Protective Services intake. Adult Protective
345 Services and law enforcement shall coordinate, as appropriate, their efforts to provide
346 protection to the vulnerable adult.
347 (2) When the initial report or subsequent investigation by Adult Protective Services
348 indicates that a criminal offense may have occurred against a vulnerable adult[
349 (a) Adult Protective Services shall notify the nearest local law enforcement agency[
351 (b) the law enforcement agency [
352 Adult Protective Services.
353 (3) Anyone who in good faith makes a report or otherwise notifies a law enforcement
355 is immune from civil and criminal liability in connection with the report or other notification.
356 (4) Any person who willfully fails to report suspected abuse, neglect, or exploitation of
357 a vulnerable adult is guilty of a class B misdemeanor.
358 (5) Under circumstances not amounting to a violation of Section 76-8-508 , a person
359 who threatens, intimidates, or attempts to intimidate a vulnerable adult who is the subject of a
360 report, a witness, the person who made the report, or any other person cooperating with an
361 investigation conducted pursuant to this chapter is guilty of a class B misdemeanor.
366 reason that the adult has chosen to rely solely upon religious, nonmedical forms of healing in
367 lieu of medical care.
368 Section 8. Section 62A-3-307 is repealed and reenacted to read:
369 62A-3-307. Photographing, video, and audio taping.
370 Law enforcement or Adult Protective Services investigators may collect evidence
371 regarding alleged abuse, neglect, or exploitation of a vulnerable adult by taking, or causing to be
372 taken, photographs, video tape recordings, or audio or video tape accounts of a vulnerable
373 adult, if the vulnerable adult:
374 (1) consents to the taking of the photographs, video tape recordings, or audio or video
375 tape accounts; or
376 (2) lacks the capacity to give the consent described in Subsection (1).
377 Section 9. Section 62A-3-308 is amended to read:
378 62A-3-308. Peace officer's authority to transport -- Notification.
379 (1) A peace officer may remove and transport, or cause to have transported, a
380 vulnerable adult to an appropriate medical or shelter facility, if:
381 (a) the officer has probable cause to believe that:
382 (i) by reason of abuse, neglect, or exploitation there exist [
383 circumstances; and[
385 immediately placed in a safe environment;
386 (b) the vulnerable adult refuses to consent or lacks capacity to consent; and
387 (c) there is not time to notify interested parties or to apply for a warrant or other court
389 (2) [
390 after a vulnerable adult is transported to an appropriate medical or shelter facility:
391 (a) notify Adult Protective Services [
393 (b) request that Adult Protective Services or the division [
394 court for an emergency protective order [
396 Section 10. Section 62A-3-309 is amended to read:
397 62A-3-309. Enforcement by division -- Duty of county or district attorney.
398 (1) It is the duty of the county or district attorney, as appropriate under Sections
399 17-18-1 , 17-18-1.5 , and 17-18-1.7 , to:
400 (a) assist and represent the division [
401 (b) initiate legal proceedings to protect vulnerable adults; and
402 (c) take appropriate action to prosecute the alleged offenders.
403 (2) [
404 to provide legal assistance within [
405 which the request is made:
406 (a) the division may request the attorney general to act [
408 (b) the attorney general may, in the attorney general's discretion, assume the
409 responsibilities and carry the action forward in place of the county or district attorney.
410 Section 11. Section 62A-3-311 is amended to read:
411 62A-3-311. Requests for information.
412 (1) Requests for [
413 maintained by Adult Protective Services shall be made in writing to Adult Protective Services.
418 (2) Classification and disclosure of records shall be made in accordance with Title 63,
419 Chapter 2, Government Records Access and Management Act.
420 Section 12. Section 62A-3-311.1 is amended to read:
421 62A-3-311.1. Statewide database -- Restricted use and access.
422 (1) The division shall maintain a [
423 abuse, neglect, or exploitation made pursuant to this part.
424 (2) The [
425 (a) the names and identifying data of the alleged abused, neglected, or exploited
426 vulnerable adult and the [
427 (b) information regarding whether or not the allegation of abuse, neglect, or
428 exploitation was [
429 (i) supported;
430 (ii) inconclusive;
431 (iii) without merit; or
432 (iv) for reports for which the finding is made before May 5, 2008:
433 (A) substantiated; or
434 (B) unsubstantiated; and
435 (c) any other information that may be helpful in furthering the purposes of this part, as
436 determined by the division[
437 (3) Information obtained from the [
438 (a) [
439 names or other identifying data;
454 (b) where identification of a person as a perpetrator may be relevant in a determination
455 regarding whether to grant or deny a license, privilege, or approval made by:
456 (i) the department;
457 (ii) the Division of Occupational and Professional Licensing;
458 (iii) the Bureau of Licensing, within the Department of Health;
459 (iv) any government agency specifically authorized by statute to access or use the
460 information in the database; or
461 (v) an agency of another state that performs a similar function to an agency described in
462 Subsections (3)(b)(i) through (iv); or
463 (c) as otherwise specifically provided by law.
464 Section 13. Section 62A-3-311.5 is enacted to read:
465 62A-3-311.5. Notice of supported finding -- Procedure for challenging finding --
467 (1) (a) Except as provided in Subsection (1)(b), within 15 days after the day on which
468 the division makes a supported finding that a person committed abuse, neglect, or exploitation
469 of a vulnerable adult, the division shall serve the person with a notice of agency action, in
470 accordance with Subsections (2) and (3).
471 (b) The division may serve the notice described in Subsection (1)(a) within a reasonable
472 time after the 15 day period described in Subsection (1)(a) if:
473 (i) the delay is necessary in order to:
474 (A) avoid impeding an ongoing criminal investigation or proceeding; or
475 (B) protect the safety of a person; and
476 (ii) the notice is provided before the supported finding is used as a basis to deny the
477 person a license or otherwise adversely impact the person.
478 (2) The division shall cause the notice described in Subsection (1)(a) to be served by
479 personal service or certified mail.
480 (3) The notice described in Subsection (1)(a) shall:
481 (a) indicate that the division has conducted an investigation regarding alleged abuse,
482 neglect, or exploitation of a vulnerable adult by the alleged perpetrator;
483 (b) indicate that, as a result of the investigation described in Subsection (3)(a), the
484 division made a supported finding that the alleged perpetrator committed abuse, neglect, or
485 exploitation of a vulnerable adult;
486 (c) include a summary of the facts that are the basis for the supported finding;
487 (d) indicate that the supported finding may result in disqualifying the person from:
488 (i) being licensed, certified, approved, or employed by a government agency;
489 (ii) being employed by a service provider, person, or other entity that contracts with, or
490 is licensed by, a government agency; or
491 (iii) qualifying as a volunteer for an entity described in Subsection (3)(d)(i) or (ii);
492 (e) indicate that, as a result of the supported finding, the alleged perpetrator's
493 identifying information is listed in the database;
494 (f) indicate that the alleged perpetrator may request a copy of the report of the alleged
495 abuse, neglect, or exploitation; and
496 (g) inform the alleged perpetrator of:
497 (i) the right described in Subsection (4)(a); and
498 (ii) the consequences of failing to exercise the right described in Subsection (4)(a) in a
499 timely manner.
500 (4) (a) The alleged perpetrator has the right, within 30 days after the day on which the
501 notice described in Subsection (1)(a) is served, to challenge the supported finding by filing a
502 request for an informal adjudicative proceeding, under Title 63, Chapter 46b, Administrative
503 Procedures Act.
504 (b) If the alleged perpetrator fails to file a request for an informal adjudicative
505 proceeding within the time described in Subsection (4)(a), the supported finding will become
506 final and will not be subject to challenge or appeal.
507 (5) At the hearing described in Subsection (4)(a), the division has the burden of
508 proving, by a preponderance of the evidence, that the alleged perpetrator committed abuse,
509 neglect, or exploitation of a vulnerable adult.
510 (6) Notwithstanding any provision of this section, an alleged perpetrator described in
511 this section may not challenge a supported finding if a court of competent jurisdiction entered a
512 finding in a proceeding to which the alleged perpetrator was a party, that the alleged perpetrator
513 committed the abuse, neglect, or exploitation of a vulnerable adult, upon which the supported
514 finding is based.
515 (7) A person who was listed in the database as a perpetrator before May 5, 2008, and
516 who did not have an opportunity to challenge the division's finding that resulted in the listing,
517 may at any time:
518 (a) request that the division reconsider the division's finding; or
519 (b) request an informal adjudicative proceeding, under Title 63, Chapter 46b,
520 Administrative Procedures Act, to challenge the finding.
521 Section 14. Section 62A-3-312 is amended to read:
522 62A-3-312. Access to information in database.
529 (1) shall be made available to law enforcement agencies, the attorney general's office,
530 and county or district attorney's offices;
531 (2) shall be released as required under Subsection 63-2-202 (4)(c); and
532 (3) may be made available, at the discretion of the division, to:
535 exploitation, or that adult's attorney or legal guardian; and
537 vulnerable adult, or that person's attorney; and
541 evaluation or assessment of an adult protection case file;
543 Services in the evaluation, assessment, and disposition of a vulnerable adult case;
545 care, treatment, assessment, or supervision of a vulnerable adult named in the report as a victim,
546 when in the opinion of the division, that information will assist in the protection of, or provide
547 other benefits to, the victim;
549 victim named in a report; and
553 victim or have been requested by the division to assist on a case[
554 (A) the Office of Public Guardian, created in Section 62A-14-103 ; and
555 (B) the Long-Term Care Ombudsman Program, created in Section 62A-3-203 .
556 Section 15. Section 62A-3-318 is amended to read:
557 62A-3-318. Petition by division for protective services -- Notice -- Rights of adult.
558 (1) If the division determines that a vulnerable adult is in need of protective services but
559 lacks capacity to consent to protective services, the division may petition the district court for
560 an order authorizing the division to provide protective services. The petition shall include:
561 (a) the name, address, and age of the adult who is the subject of the petition;
562 (b) the reasonably ascertainable names and addresses of the spouse, parents, adult
563 children, and caretaker of the adult who is the subject of the petition;
564 (c) the name and address of any court-appointed guardian or conservator for the adult;
565 (d) specific facts sufficient to show that the subject of the petition is a vulnerable adult
566 in need of protective services; and
567 (e) specific facts sufficient to show that the vulnerable adult lacks capacity to consent.
568 (2) Upon the filing of a petition, the court shall set a date for hearing on the petition.
569 At least ten days' notice of the petition and the hearing shall be given to the adult who is the
570 subject of the petition and to each other person identified in Subsection (1)(b) or (c).
571 (3) The notice shall be in plain language and [
572 font. The notice shall indicate the time and place of the hearing, the possible adverse
573 consequences to the adult, and a list of rights as set forth in Subsections (4), (6), and (7). The
574 petition and notice shall be served personally upon the adult who is the subject of the petition
575 and upon the adult's spouse, caretaker, and parents if they can be found within the state. Notice
576 to the spouse, caretaker, and parents, if they cannot be found within the state, and to other
577 persons shall be given by first-class mail, postage prepaid.
578 (4) The adult who is the subject of the petition shall have the right to be present at the
579 hearing, unless the adult has knowingly and voluntarily waived the right to be present, or unless
580 a licensed physician has certified that the adult is physically unable to attend. Waiver shall not
581 be presumed by nonappearance of the adult, but shall be determined by the court on the basis of
582 evidence provided to the court.
583 (5) The adult who is the subject of the petition may be examined by a licensed physician
584 appointed by the court, who shall submit a written report to the court. The adult may be
585 interviewed by a visitor, as defined in Section 75-5-308 , appointed by the court, who shall
586 submit a written report to the court. The visitor may also interview knowledgeable persons at
587 the division and others who have knowledge of the adult who is the subject of the petition.
588 (6) The adult who is the subject of the petition has the right to be represented by
589 counsel at all proceedings before the court. Unless the adult has retained counsel, the court
590 shall appoint counsel. The fees of the adult's counsel shall be paid by the adult who is the
591 subject of the petition unless the adult is indigent in which case the division will pay the adult's
592 reasonable [
593 (7) The adult who is the subject of the petition is entitled to present evidence and to
594 cross-examine witnesses, including any court-appointed physician and visitor. The issues may
595 be determined at a closed hearing if the adult who is the subject of the petition so requests.
596 (8) Nothing in this section limits proceedings under Title 75, Utah Uniform Probate
598 Section 16. Section 62A-3-320 is amended to read:
599 62A-3-320. Petition for emergency order -- Protective services -- Temporary
600 guardian -- Forcible entry.
601 (1) Upon [
602 may, without notice, order appropriate protective services, if the court finds that:
603 (a) the subject of the petition is a vulnerable adult[
604 (b) the adult has no court-appointed guardian or conservator or the guardian or
605 conservator is not effectively performing the guardian's or conservator's duties[
606 (c) an emergency exists[
607 (d) the welfare, safety, or best interests of the adult require immediate action[
609 (2) The order described in Subsection (1) shall specifically designate the protective
610 services which are [
612 hospitalization, nursing or custodial care, or a change in residence, unless the court specifically
613 finds that the action is necessary and authorizes the specific protective services in the order.
616 order shall expire unless a petition for guardianship, conservatorship, or other protective
617 services [
618 (b) If a petition for guardianship, conservatorship, or other protective services is filed
619 within the three-business-day period described in Subsection (4)(a), the emergency order may
620 be continued for as long as 15 days from the [
621 allow time for a hearing to determine whether the emergency order shall remain in effect.
625 peace officer into the premises where the protected person is residing, only upon a showing that
626 voluntary access into the premises is not possible and that forcible entry is required.
627 Section 17. Section 63-2-202 is amended to read:
628 63-2-202. Access to private, controlled, and protected documents.
629 (1) Upon request, and except as provided in Subsection (10)(a), a governmental entity
630 shall disclose a private record to:
631 (a) the subject of the record;
632 (b) the parent or legal guardian of an unemancipated minor who is the subject of the
634 (c) the legal guardian of a legally incapacitated individual who is the subject of the
636 (d) any other individual who:
637 (i) has a power of attorney from the subject of the record;
638 (ii) submits a notarized release from the subject of the record or his legal representative
639 dated no more than 90 days before the date the request is made; or
640 (iii) if the record is a medical record described in Subsection 63-2-302 (1)(b), is a health
641 care provider, as defined in Section 26-33a-102 , if releasing the record or information in the
642 record is consistent with normal professional practice and medical ethics; or
643 (e) any person to whom the record must be provided pursuant to:
644 (i) court order as provided in Subsection (7); or
645 (ii) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
647 (2) (a) Upon request, a governmental entity shall disclose a controlled record to:
648 (i) a physician, psychologist, certified social worker, insurance provider or producer, or
649 a government public health agency upon submission of:
650 (A) a release from the subject of the record that is dated no more than 90 days prior to
651 the date the request is made; and
652 (B) a signed acknowledgment of the terms of disclosure of controlled information as
653 provided by Subsection (2)(b); and
654 (ii) any person to whom the record must be disclosed pursuant to:
655 (A) a court order as provided in Subsection (7); or
656 (B) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
658 (b) A person who receives a record from a governmental entity in accordance with
659 Subsection (2)(a)(i) may not disclose controlled information from that record to any person,
660 including the subject of the record.
661 (3) If there is more than one subject of a private or controlled record, the portion of the
662 record that pertains to another subject shall be segregated from the portion that the requester is
663 entitled to inspect.
664 (4) Upon request, and except as provided in Subsection (10)(b), a governmental entity
665 shall disclose a protected record to:
666 (a) the person who submitted the record;
667 (b) any other individual who:
668 (i) has a power of attorney from all persons, governmental entities, or political
669 subdivisions whose interests were sought to be protected by the protected classification; or
670 (ii) submits a notarized release from all persons, governmental entities, or political
671 subdivisions whose interests were sought to be protected by the protected classification or from
672 their legal representatives dated no more than 90 days prior to the date the request is made;
673 (c) any person to whom the record must be provided pursuant to:
674 (i) a court order as provided in Subsection (7); or
675 (ii) a legislative subpoena as provided in Title 36, Chapter 14, Legislative Subpoena
676 Powers; or
677 (d) the owner of a mobile home park, subject to the conditions of Subsection
678 41-1a-116 (5).
679 (5) A governmental entity may disclose a private, controlled, or protected record to
680 another governmental entity, political subdivision, another state, the United States, or a foreign
681 government only as provided by Section 63-2-206 .
682 (6) Before releasing a private, controlled, or protected record, the governmental entity
683 shall obtain evidence of the requester's identity.
684 (7) A governmental entity shall disclose a record pursuant to the terms of a court order
685 signed by a judge from a court of competent jurisdiction, provided that:
686 (a) the record deals with a matter in controversy over which the court has jurisdiction;
687 (b) the court has considered the merits of the request for access to the record; and
688 (c) the court has considered and, where appropriate, limited the requester's use and
689 further disclosure of the record in order to protect:
690 (i) privacy interests in the case of private or controlled records;
691 (ii) business confidentiality interests in the case of records protected under Subsection
692 63-2-304 (1), (2), (40)(a)(ii), or (40)(a)(vi); and
693 (iii) privacy interests or the public interest in the case of other protected records;
694 (d) to the extent the record is properly classified private, controlled, or protected, the
695 interests favoring access, considering limitations thereon, outweigh the interests favoring
696 restriction of access; and
697 (e) where access is restricted by a rule, statute, or regulation referred to in Subsection
698 63-2-201 (3)(b), the court has authority independent of this chapter to order disclosure.
699 (8) (a) A governmental entity may disclose or authorize disclosure of private or
700 controlled records for research purposes if the governmental entity:
701 (i) determines that the research purpose cannot reasonably be accomplished without use
702 or disclosure of the information to the researcher in individually identifiable form;
703 (ii) determines that:
704 (A) the proposed research is bona fide; and
705 (B) the value of the research outweighs the infringement upon personal privacy;
706 (iii) (A) requires the researcher to assure the integrity, confidentiality, and security of
707 the records; and
708 (B) requires the removal or destruction of the individual identifiers associated with the
709 records as soon as the purpose of the research project has been accomplished;
710 (iv) prohibits the researcher from:
711 (A) disclosing the record in individually identifiable form, except as provided in
712 Subsection (8)(b); or
713 (B) using the record for purposes other than the research approved by the governmental
714 entity; and
715 (v) secures from the researcher a written statement of the researcher's understanding of
716 and agreement to the conditions of this Subsection (8) and the researcher's understanding that
717 violation of the terms of this Subsection (8) may subject the researcher to criminal prosecution
718 under Section 63-2-801 .
719 (b) A researcher may disclose a record in individually identifiable form if the record is
720 disclosed for the purpose of auditing or evaluating the research program and no subsequent use
721 or disclosure of the record in individually identifiable form will be made by the auditor or
722 evaluator except as provided by this section.
723 (c) A governmental entity may require indemnification as a condition of permitting
724 research under this Subsection (8).
725 (9) (a) Under Subsections 63-2-201 (5)(b) and 63-2-401 (6), a governmental entity may
726 disclose to persons other than those specified in this section records that are:
727 (i) private under Section 63-2-302 ; or
728 (ii) protected under Section 63-2-304 subject to Section 63-2-308 if a claim for
729 business confidentiality has been made under Section 63-2-308 .
730 (b) Under Subsection 63-2-403 (11)(b), the records committee may require the
731 disclosure to persons other than those specified in this section of records that are:
732 (i) private under Section 63-2-302 ;
733 (ii) controlled under Section 63-2-303 ; or
734 (iii) protected under Section 63-2-304 subject to Section 63-2-308 if a claim for
735 business confidentiality has been made under Section 63-2-308 .
736 (c) Under Subsection 63-2-404 (8), the court may require the disclosure of records that
737 are private under Section 63-2-302 , controlled under Section 63-2-303 , or protected under
738 Section 63-2-304 to persons other than those specified in this section.
739 (10) (a) A private record described in Subsection 63-2-302 (2)(f) may only be disclosed
740 as provided in Subsection (1)(e).
741 (b) A protected record described in Subsection 63-2-304 (43) may only be disclosed as
742 provided in Subsection (4)(c) or Section 62A-3-312 .
743 Section 18. Section 63-2-302 is amended to read:
744 63-2-302. Private records.
745 (1) The following records are private:
746 (a) records concerning an individual's eligibility for unemployment insurance benefits,
747 social services, welfare benefits, or the determination of benefit levels;
748 (b) records containing data on individuals describing medical history, diagnosis,
749 condition, treatment, evaluation, or similar medical data;
750 (c) records of publicly funded libraries that when examined alone or with other records
751 identify a patron;
752 (d) records received or generated for a Senate or House Ethics Committee concerning
753 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
754 meeting, if the ethics committee meeting was closed to the public;
755 (e) records received or generated for a Senate confirmation committee concerning
756 character, professional competence, or physical or mental health of an individual:
757 (i) if prior to the meeting, the chair of the committee determines release of the records:
758 (A) reasonably could be expected to interfere with the investigation undertaken by the
759 committee; or
760 (B) would create a danger of depriving a person of a right to a fair proceeding or
761 impartial hearing; and
762 (ii) after the meeting, if the meeting was closed to the public;
763 (f) employment records concerning a current or former employee of, or applicant for
764 employment with, a governmental entity that would disclose that individual's home address,
765 home telephone number, Social Security number, insurance coverage, marital status, or payroll
767 (g) records or parts of records under Section 63-2-302.5 that a current or former
768 employee identifies as private according to the requirements of that section;
769 (h) that part of a record indicating a person's Social Security number or federal
770 employer identification number if provided under Section 31A-23a-104 , 31A-25-202 ,
771 31A-26-202 , 58-1-301 , 61-1-4 , or 61-2-6 ;
772 (i) that part of a voter registration record identifying a voter's driver license or
773 identification card number, Social Security number, or last four digits of the Social Security
775 (j) a record that:
776 (i) contains information about an individual;
777 (ii) is voluntarily provided by the individual; and
778 (iii) goes into an electronic database that:
779 (A) is designated by and administered under the authority of the Chief Information
780 Officer; and
781 (B) acts as a repository of information about the individual that can be electronically
782 retrieved and used to facilitate the individual's online interaction with a state agency;
783 (k) information provided to the Commissioner of Insurance under:
784 (i) Subsection 31A-23a-115 (2)(a); or
785 (ii) Subsection 31A-23a-302 (3); and
786 (l) information obtained through a criminal background check under Title 11, Chapter
787 40, Criminal Background Checks by Political Subdivisions Operating Water Systems.
788 (2) The following records are private if properly classified by a governmental entity:
789 (a) records concerning a current or former employee of, or applicant for employment
790 with a governmental entity, including performance evaluations and personal status information
791 such as race, religion, or disabilities, but not including records that are public under Subsection
792 63-2-301 (2)(b) or 63-2-301 (3)(o), or private under Subsection (1)(b);
793 (b) records describing an individual's finances, except that the following are public:
794 (i) records described in Subsection 63-2-301 (2);
795 (ii) information provided to the governmental entity for the purpose of complying with
796 a financial assurance requirement; or
797 (iii) records that must be disclosed in accordance with another statute;
798 (c) records of independent state agencies if the disclosure of those records would
799 conflict with the fiduciary obligations of the agency;
800 (d) other records containing data on individuals the disclosure of which constitutes a
801 clearly unwarranted invasion of personal privacy; [
802 (e) records provided by the United States or by a government entity outside the state
803 that are given with the requirement that the records be managed as private records, if the
804 providing entity states in writing that the record would not be subject to public disclosure if
805 retained by it[
806 (f) any portion of a record in the custody of the Division of Aging and Adult Services,
807 created in Section 62A-3-102 , that may disclose, or lead to the discovery of, the identity of a
808 person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult.
809 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
810 records, statements, history, diagnosis, condition, treatment, and evaluation.
811 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
812 doctors, or affiliated entities are not private records or controlled records under Section
813 63-2-303 when the records are sought:
814 (i) in connection with any legal or administrative proceeding in which the patient's
815 physical, mental, or emotional condition is an element of any claim or defense; or
816 (ii) after a patient's death, in any legal or administrative proceeding in which any party
817 relies upon the condition as an element of the claim or defense.
818 (c) Medical records are subject to production in a legal or administrative proceeding
819 according to state or federal statutes or rules of procedure and evidence as if the medical
820 records were in the possession of a nongovernmental medical care provider.
821 Section 19. Repealer.
822 This bill repeals:
823 Section 62A-3-306, Anonymity of reporter.
824 Section 62A-3-313, Penalty for unauthorized release of information.
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