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:
27 Other Special Clauses:
29 Utah Code Sections Affected:
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
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.
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.
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.
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
58 created in Section 26-1-7.
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.
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.
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
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:
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;
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
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
112 federal land pursuant to a federal permit; or
114 (i) qualifies for tax exempt status under Section 501(c)(3) of the Internal Revenue
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[
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;
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
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
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
172 (iii) [
173 information to the department under Subsection (1) shall pay the cost of conducting [
174 record check [
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 [
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 [
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
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 [
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
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);
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
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 [
252 concerns raised by:
253 (A) the anonymous complainant; or
254 (B) the complainant who reported events more than six weeks after the events
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
269 (4) (a) Prior to conducting an investigation of a child care program or [
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;
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.