1     
CHILD CARE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Allen M. Christensen

5     
House Sponsor: Paul Ray

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of the Utah Health Code related to child care.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires a child care provider that is exempt from licensure and certification
13     requirements to:
14               •     submit information to the Department of Health for the purpose of conducting
15     criminal history checks;
16               •     prohibit an individual with a misdemeanor or felony from providing care to a
17     child receiving care from the provider, unless exempted by the Department of
18     Health; and
19               •     post, in a conspicuous location, a notice that is prepared by the Department of
20     Health that states the facility is exempt from licensure and certification and
21     provides the department's contact information for submitting a complaint;
22          ▸     allows the Department of Health to investigate a child care provider that is exempt
23     from licensure and certification requirements under certain circumstances; and
24          ▸     makes technical and conforming amendments.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:

30     AMENDS:
31          26-39-102, as last amended by Laws of Utah 2014, Chapter 322
32          26-39-403, as renumbered and amended by Laws of Utah 2008, Chapter 111
33          26-39-404, as last amended by Laws of Utah 2013, Chapter 276
34          26-39-501, as last amended by Laws of Utah 2008, Chapter 382 and renumbered and
35     amended by Laws of Utah 2008, Chapter 111
36     

37     Be it enacted by the Legislature of the state of Utah:
38          Section 1. Section 26-39-102 is amended to read:
39          26-39-102. Definitions.
40          As used in this chapter:
41          (1) "Advisory committee" means the Residential Child Care Licensing Advisory
42     Committee, created in Section 26-1-7.
43          [(4)] (2) (a) "Center based child care" means, except as provided in Subsection [(4)]
44     (2)(b), a child care program licensed under this chapter.
45          (b) "Center based child care" does not include:
46          (i) a residential child care provider certified under Section 26-39-402; or
47          (ii) a facility or program exempt under Section 26-39-403.
48          [(2)] (3) "Child care" means continuous care and supervision of five or more qualifying
49     children, that is:
50          (a) in lieu of care ordinarily provided by a parent in the parent's home;
51          (b) for less than 24 hours a day; and
52          (c) for direct or indirect compensation.
53          [(3)] (4) "Child care program" means a child care facility or program operated by a
54     person who holds a license or certificate issued in accordance with this chapter.
55          (5) "Exempt provider" means a person who provides care described in Subsection
56     26-39-403(2).
57          [(5)] (6) "Licensing committee" means the Child Care Center Licensing Committee

58     created in Section 26-1-7.
59          [(6)] (7) "Public school" means:
60          (a) a school, including a charter school, that:
61          (i) is directly funded at public expense; and
62          (ii) provides education to qualifying children for any grade from first grade through
63     twelfth grade; or
64          (b) a school, including a charter school, that provides:
65          (i) preschool or kindergarten to qualifying children, regardless of whether the preschool
66     or kindergarten is funded at public expense; and
67          (ii) education to qualifying children for any grade from first grade through twelfth
68     grade, if each grade, from first grade to twelfth grade, that is provided at the school, is directly
69     funded at public expense.
70          [(7)] (8) "Qualifying child" means [a person] an individual who is:
71          (a) (i) under the age of 13; or
72          (ii) under the age of 18, if the person has a disability; and
73          (b) a child of:
74          (i) a person other than the person providing care to the child;
75          (ii) a licensed or certified residential child care provider, if the child is under the age of
76     four; or
77          (iii) an employee or owner of a licensed child care center, if the child is under the age
78     of four.
79          [(8)] (9) "Residential child care" means child care provided in the home of a provider.
80          Section 2. Section 26-39-403 is amended to read:
81          26-39-403. Exclusions from chapter -- Criminal background checks by an
82     excluded person.
83          (1) The provisions and requirements of this chapter do not apply to:
84          (a) a facility or program owned or operated by an agency of the United States
85     government;

86          (b) group counseling provided by a mental health therapist, as defined in Section
87     58-60-102, who is licensed to practice in this state;
88          (c) a health care facility licensed pursuant to Title 26, Chapter 21, Health Care Facility
89     Licensing and Inspection Act;
90          (d) care provided to qualifying children by or in the homes of parents, legal guardians,
91     grandparents, brothers, sisters, uncles, or aunts;
92          (e) care provided to qualifying children, in the home of the provider, for less than four
93     hours a day or on a sporadic basis, unless that child care directly affects or is related to a
94     business licensed in this state; or
95          (f) care provided at a residential support program that is licensed by the Department of
96     Human Services.
97          (2) The licensing and certification requirements of this chapter do not apply to:
98          [(f)] (a) care provided to qualifying children as part of a course of study at or a program
99     administered by an educational institution that is regulated by the boards of education of this
100     state, a private education institution that provides education in lieu of that provided by the
101     public education system, or by a parochial education institution;
102          [(g)] (b) care provided to qualifying children by a public or private institution of higher
103     education, if the care is provided in connection with a course of study or program, relating to
104     the education or study of children, that is provided to students of the institution of higher
105     education;
106          [(h)] (c) care provided to qualifying children at a public school by an organization
107     other than the public school, if:
108          (i) the care is provided under contract with the public school or on school property; or
109          (ii) the public school accepts responsibility and oversight for the care provided by the
110     organization;
111          [(i)] (d) care provided to qualifying children as part of a summer camp that operates on
112     federal land pursuant to a federal permit; or
113          [(j)] (e) care provided by an organization that:

114          (i) qualifies for tax exempt status under Section 501(c)(3) of the Internal Revenue
115     Code;
116          (ii) is provided pursuant to a written agreement with:
117          (A) a municipality, as defined in Section 10-1-104, that provides oversight for the
118     program; or
119          (B) a county that provides oversight for the program; and
120          (iii) is provided to children who are over the age of four and under the age of 13[; or].
121          [(k) care provided at a residential support program that is licensed by the Department
122     of Human Services.]
123          [(2) A person who is excluded, under Subsection (1), from the provisions and
124     requirements of this chapter, shall conduct a criminal background check on all of the person's
125     employees who have access to a qualifying child to whom care is provided by the person.]
126          (3) An exempt provider shall submit to the department:
127          (a) the information required under Subsections 26-39-404(1) and (2); and
128          (b) of the children receiving care from the exempt provider:
129          (i) the number of children who are less than two years old;
130          (ii) the number of children who are at least two years old and less than five years old;
131     and
132          (iii) the number of children who are five years old or older.
133          (4) An exempt provider shall post, in a conspicuous location near the entrance of the
134     exempt provider's facility, a notice prepared by the department that:
135          (a) states that the facility is exempt from licensure and certification; and
136          (b) provides the department's contact information for submitting a complaint.
137          (5) The department may not release the information it collects under Subsection (3)
138     except in an aggregate count of children receiving care from exempt providers, without
139     identifying a specific provider.
140          Section 3. Section 26-39-404 is amended to read:
141          26-39-404. Disqualified individuals -- Criminal history checks -- Payment of

142     costs.
143          (1) (a) Each exempt provider and each person requesting a residential certificate or to
144     be licensed or to renew a license under this chapter shall submit to the department the name
145     and other identifying information, which shall include fingerprints, of existing, new, and
146     proposed:
147          (i) owners;
148          (ii) directors;
149          (iii) members of the governing body;
150          (iv) employees;
151          (v) providers of care;
152          (vi) volunteers, except parents of children enrolled in the programs; and
153          (vii) all adults residing in a residence where child care is provided.
154          (b) A person seeking renewal of a residential certificate or license under this section is
155     not required to submit fingerprints of an individual referred to in Subsections (1)(a)(i) through
156     (vi), if:
157          (i) the individual has resided in Utah for the last five years and applied for a certificate
158     or license before July 1, 2013;
159          (ii) the individual has:
160          (A) previously submitted fingerprints under this section for a national criminal history
161     record check; and
162          (B) resided in Utah continuously since that time; or
163          (iii) as of May 3, 1999, the individual had one of the relationships under Subsection
164     (1)(a) with a child care provider having a residential certificate or licensed under this section
165     and the individual has resided in Utah continuously since that time.
166          (c) (i) The Utah Division of Criminal Investigation and Technical Services within the
167     Department of Public Safety shall process the information required under Subsection (1)(a) to
168     determine whether the individual has been convicted of any crime.
169          (ii) The Utah Division of Criminal Investigation and Technical Services shall submit

170     fingerprints required under Subsection (1)(a) to the FBI for a national criminal history record
171     check.
172          (iii) [The applicant for the license or residential certificate] A person required to submit
173     information to the department under Subsection (1) shall pay the cost of conducting [a] the
174     record check [under this] described in this Subsection (1)(c).
175          (2) (a) Each person requesting a residential certificate or to be licensed or to renew a
176     license under this chapter shall submit to the department the name and other identifying
177     information of any person age 12 through 17 who resides in the residence where the child care
178     is provided. The identifying information required for a person age 12 through 17 does not
179     include fingerprints.
180          (b) The department shall access the juvenile court records to determine whether a
181     person described in Subsection (1) or (2)(a) has been adjudicated in juvenile court of
182     committing an act which if committed by an adult would be a felony or misdemeanor if:
183          (i) the person described in Subsection (1) is under the age of 28; or
184          (ii) the person described in Subsection (1) is:
185          (A) over the age of 28; and
186          (B) has been convicted, has pleaded no contest, or is currently subject to a plea in
187     abeyance or diversion agreement for a felony or misdemeanor.
188          (3) Except as provided in Subsection (4), a licensee under this chapter or an exempt
189     provider may not permit a person who has been convicted, has pleaded no contest, or is
190     currently subject to a plea in abeyance or diversion agreement for any felony or misdemeanor,
191     or if the provisions of Subsection (2)(b) apply, who has been adjudicated in juvenile court of
192     committing an act which if committed by an adult would be a felony or a misdemeanor, to:
193          (a) provide child care;
194          (b) provide volunteer services for [a licensed child care program or a child care
195     program operating under a residential child care certificate] a child care program or an exempt
196     provider;
197          (c) reside at the premises where child care is provided; or

198          (d) function as an owner, director, or member of the governing body of a [licensed
199     child care program or a child care program operating under a residential child care certificate]
200     child care program or an exempt provider.
201          (4) (a) The department may, by rule, exempt the following from the restrictions of
202     Subsection (3):
203          (i) specific misdemeanors; and
204          (ii) specific acts adjudicated in juvenile court, which if committed by an adult would be
205     misdemeanors.
206          (b) In accordance with criteria established by rule, the executive director may consider
207     and exempt individual cases involving misdemeanors, not otherwise exempt under Subsection
208     (4)(a) from the restrictions of Subsection (3).
209          Section 4. Section 26-39-501 is amended to read:
210          26-39-501. Investigations -- Records.
211          (1) The department may conduct investigations necessary to enforce the provisions of
212     this chapter.
213          (2) For purposes of this section:
214          (a) "Anonymous complainant" means a complainant for whom the department does not
215     have the minimum personal identifying information necessary, including the complainant's full
216     name, to attempt to communicate with the complainant after a complaint has been made.
217          (b) "Confidential complainant" means a complainant for whom the department has the
218     minimum personal identifying information necessary, including the complainant's full name, to
219     attempt to communicate with the complainant after a complaint has been made, but who elects
220     under Subsection (3)(c) not to be identified to the subject of the complaint.
221          (c) "Subject of the complaint" means the licensee or certificate holder about whom the
222     complainant is informing the department.
223          (3) (a) If the department receives a complaint about a child care program or [residential
224     child care] an exempt provider, the department shall:
225          (i) solicit information from the complainant to determine whether the complaint

226     suggests actions or conditions that could pose a serious risk to the safety or well-being of a
227     qualifying child;
228          (ii) as necessary:
229          (A) encourage the complainant to disclose the minimum personal identifying
230     information necessary, including the complainant's full name, for the department to attempt to
231     subsequently communicate with the complainant;
232          (B) inform the complainant that the department may not investigate an anonymous
233     complaint;
234          (C) inform the complainant that the identity of a confidential complainant may be
235     withheld from the subject of a complaint only as provided in Subsection (3)(c)(ii); and
236          (D) inform the complainant that the department may be limited in its use of
237     information provided by a confidential complainant, as provided in Subsection (3)(c)(ii)(B);
238     and
239          (iii) inform the complainant that a person is guilty of a class B misdemeanor under
240     Section 76-8-506 if the person gives false information to the department with the purpose of
241     inducing a change in that person's or another person's licensing or certification status.
242          (b) If the complainant elects to be an anonymous complainant, or if the complaint
243     concerns events which occurred more than six weeks before the complainant contacted the
244     department:
245          (i) shall refer the information in the complaint to the Division of Child and Family
246     Services within the Department of Human Services, law enforcement, or any other appropriate
247     agency, if the complaint suggests actions or conditions which could pose a serious risk to the
248     safety or well-being of a child;
249          (ii) may not investigate or substantiate the complaint; and
250          (iii) may, during a regularly scheduled annual survey, inform the exempt provider,
251     licensee, or certificate holder [who] that is the subject of the complaint of allegations or
252     concerns raised by:
253          (A) the anonymous complainant; or

254          (B) the complainant who reported events more than six weeks after the events
255     occurred.
256          (c) (i) If the complainant elects to be a confidential complainant, the department shall
257     determine whether the complainant wishes to remain confidential:
258          (A) only until the investigation of the complaint has been completed; or
259          (B) indefinitely.
260          (ii) (A) If the complainant elects to remain confidential only until the investigation of
261     the complaint has been completed, the department shall disclose the name of the complainant
262     to the subject of the complaint at the completion of the investigation, but no sooner.
263          (B) If the complainant elects to remain confidential indefinitely, the department:
264          (I) notwithstanding Subsection 63G-2-201(5)(b), may not disclose the name of the
265     complainant, including to the subject of the complaint; and
266          (II) may not use information provided by the complainant to substantiate an alleged
267     violation of state law or department rule unless the department independently corroborates the
268     information.
269          (4) (a) Prior to conducting an investigation of a child care program or [residential child
270     care] an exempt provider in response to a complaint, a department investigator shall review the
271     complaint with the investigator's supervisor.
272          (b) The investigator may proceed with the investigation only if:
273          (i) the supervisor determines the complaint is credible;
274          (ii) the complaint is not from an anonymous complainant; and
275          (iii) prior to the investigation, the investigator informs the subject of the complaint of:
276          (A) except as provided in Subsection (3)(c), the name of the complainant; and
277          (B) except as provided in Subsection (4)(c), the substance of the complaint.
278          (c) An investigator is not required to inform the subject of a complaint of the substance
279     of the complaint prior to an investigation if doing so would jeopardize the investigation.
280     However, the investigator shall inform the subject of the complaint of the substance of the
281     complaint as soon as doing so will no longer jeopardize the investigation.

282          (5) If the department is unable to substantiate a complaint, any record related to the
283     complaint or the investigation of the complaint:
284          (a) shall be classified under Title 63G, Chapter 2, Government Records Access and
285     Management Act, as:
286          (i) a private or controlled record if appropriate under Section 63G-2-302 or 63G-2-304;
287     or
288          (ii) a protected record under Section 63G-2-305; and
289          (b) if disclosed in accordance with Subsection 63G-2-201(5)(b), may not identify an
290     individual child care program, exempt provider, licensee, certificate holder, or complainant.
291          (6) Any record of the department related to a complaint by an anonymous complainant
292     is a protected record under Title 63G, Chapter 2, Government Records Access and
293     Management Act, and, notwithstanding Subsection 63G-2-201(5)(b), may not be disclosed in a
294     manner that identifies an individual child care program, exempt provider, licensee, certificate
295     holder, or complainant.