1     
EDUCATION BACKGROUND CHECK AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Stephen G. Handy

5     
Senate Sponsor: Ann Millner

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions regarding criminal background checks for individuals
10     associated with education entities.
11     Highlighted Provisions:
12          This bill:
13          ▸     amends definitions; and
14          ▸     amends certain provisions to comply with federal law.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          53A-1a-705, as last amended by Laws of Utah 2015, Chapter 389
22          53A-15-1502, as enacted by Laws of Utah 2015, Chapter 389
23          53A-15-1503, as enacted by Laws of Utah 2015, Chapter 389
24          53A-15-1504, as enacted by Laws of Utah 2015, Chapter 389
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 53A-1a-705 is amended to read:
28          53A-1a-705. Eligible private schools.
29          (1) To be eligible to enroll a scholarship student, a private school shall:

30          (a) have a physical location in Utah where the scholarship students attend classes and
31     have direct contact with the school's teachers;
32          (b) (i) (A) obtain an audit and report from a licensed independent certified public
33     accountant that conforms with the following requirements:
34          (I) the audit shall be performed in accordance with generally accepted auditing
35     standards;
36          (II) the financial statements shall be presented in accordance with generally accepted
37     accounting principles; and
38          (III) the audited financial statements shall be as of a period within the last 12 months;
39     or
40          (B) contract with a licensed independent certified public accountant to perform an
41     agreed upon procedure as follows:
42          (I) the agreed upon procedure shall be to determine that the private school has adequate
43     working capital to maintain operations for the first full year; and
44          (II) working capital shall be calculated by subtracting current liabilities from current
45     assets; and
46          (ii) submit the audit report or report of the agreed upon procedure to the board when
47     the private school applies to accept scholarship students;
48          (c) comply with the antidiscrimination provisions of 42 U.S.C. Sec. 2000d;
49          (d) meet state and local health and safety laws and codes;
50          (e) disclose to the parent of each prospective student, before the student is enrolled, the
51     special education services that will be provided to the student, including the cost of those
52     services;
53          (f) (i) administer an annual assessment of each scholarship student's academic
54     progress;
55          (ii) report the results of the assessment to the student's parent; and
56          (iii) make the results available to the assessment team evaluating the student pursuant
57     to Subsection 53A-1a-704(6);

58          (g) employ or contract with teachers who:
59          (i) hold baccalaureate or higher degrees;
60          (ii) have at least three years of teaching experience in public or private schools; or
61          (iii) have the necessary special skills, knowledge, or expertise that qualifies them to
62     provide instruction:
63          (A) in the subjects taught; and
64          (B) to the special needs students taught;
65          (h) require the following individuals to submit to a nationwide, fingerprint-based
66     criminal background check and ongoing monitoring, in accordance with Section 53A-15-1503,
67     as a condition for employment or appointment , as authorized by the Adam Walsh Child
68     Protection and Safety Act of 2006, Pub. L. No. 109-248 :
69          (i) an employee who does not hold a current Utah educator license issued by the board
70     under Title 53A, Chapter 6, Educator Licensing and Professional Practices Act;
71          (ii) a contract employee; and
72          (iii) a volunteer who is given significant unsupervised access to a student in connection
73     with the volunteer's assignment; and
74          (i) provide to parents the relevant credentials of the teachers who will be teaching their
75     students.
76          (2) A private school is not eligible to enroll scholarship students if:
77          (a) the audit report submitted under Subsection (1)(b) contains a going concern
78     explanatory paragraph; or
79          (b) the report of the agreed upon procedure submitted under Subsection (1)(b) shows
80     that the private school does not have adequate working capital to maintain operations for the
81     first full year, as determined under Subsection (1)(b).
82          (3) A home school is not eligible to enroll scholarship students.
83          (4) Residential treatment facilities licensed by the state are not eligible to enroll
84     scholarship students.
85          (5) A private school intending to enroll scholarship students shall submit an application

86     to the board by May 1 of the school year preceding the school year in which it intends to enroll
87     scholarship students.
88          (6) The board shall:
89          (a) approve a private school's application to enroll scholarship students, if the private
90     school meets the eligibility requirements of this section; and
91          (b) make available to the public a list of the eligible private schools.
92          (7) An approved eligible private school that changes ownership shall submit a new
93     application to the board and demonstrate that it continues to meet the eligibility requirements
94     of this section.
95          Section 2. Section 53A-15-1502 is amended to read:
96          53A-15-1502. Definitions.
97          As used in this part:
98          (1) "Authorized entity" means an LEA, qualifying private school, or the State Board of
99     Education that is authorized to request a background check and ongoing monitoring under this
100     part.
101          (2) "Bureau" means the Bureau of Criminal Identification within the Department of
102     Public Safety created in Section 53-10-201.
103          (3) "Contract employee" means an employee of a staffing service or other entity who
104     works at a public or private school under a contract [between the staffing service and the public
105     or private school].
106          (4) "FBI" means the Federal Bureau of Investigation.
107          [(4)] (5) "Local education agency" or "LEA" means a school district, charter school,
108     or the Utah Schools for the Deaf and the Blind.
109          [(5)] (6) (a) "License applicant" means an applicant for a license issued by the State
110     Board of Education under Title 53A, Chapter 6, Educator Licensing and Professional Practices
111     Act.
112          (b) "License applicant" includes an applicant for reinstatement of an expired, lapsed,
113     suspended, or revoked license.

114          [(6)] (7) "Non-licensed employee" means an employee of an LEA or qualifying private
115     school that does not hold a current Utah educator license issued by the State Board of
116     Education under Title 53A, Chapter 6, Educator Licensing and Professional Practices Act.
117          [(7)] (8) "Personal identifying information" means:
118          (a) current name, former names, nicknames, and aliases;
119          (b) date of birth;
120          (c) address;
121          (d) telephone number;
122          (e) driver license number or other government-issued identification number;
123          (f) social security number; and
124          (g) fingerprints.
125          [(8)] (9) "Qualifying private school" means a private school that:
126          (a) enrolls students under Title 53A, Chapter 1a, Part 7, Carson Smith Scholarships for
127     Students with Special Needs Act[.]; and
128           (b) is authorized to conduct fingerprint-based background checks of national crime
129     information databases under the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
130     No. 109-248.
131          [(9)] (10) "Rap back system" means a system that enables authorized entities to receive
132     ongoing status notifications of any criminal history reported on individuals whose fingerprints
133     are registered in the system.
134          [(10)] (11) "WIN Database" means the Western Identification Network Database that
135     consists of eight western states sharing one electronic fingerprint database.
136          Section 3. Section 53A-15-1503 is amended to read:
137          53A-15-1503. Background checks for non-licensed employees, contract
138     employees, volunteers, and charter school governing board members.
139          (1) An LEA or qualifying private school shall:
140          (a) require the following individuals to submit to a nationwide criminal background
141     check and ongoing monitoring as a condition for employment or appointment:

142          (i) a non-licensed employee;
143          (ii) a contract employee;
144          (iii) a volunteer who will be given significant unsupervised access to a student in
145     connection with the volunteer's assignment; and
146          (iv) a charter school governing board member;
147          (b) collect the following from an individual required to submit to a background check
148     under Subsection (1)(a):
149          (i) personal identifying information;
150          (ii) subject to Subsection (2), a fee described in Subsection 53-10-108(15); and
151          (iii) consent, on a form specified by the LEA or qualifying private school, for:
152          (A) an initial fingerprint-based background check by the FBI and the bureau upon
153     submission of the application; and
154          (B) retention of personal identifying information for ongoing monitoring through
155     registration with the systems described in Section 53A-15-1505;
156          (c) submit the individual's personal identifying information[, including fingerprints,] to
157     the bureau for:
158          (i) an initial fingerprint-based background check by the FBI and the bureau; and
159          (ii) ongoing monitoring through registration with the systems described in Section
160     53A-15-1505 if the results of the initial background check do not contain disqualifying
161     criminal history information as determined by the LEA or qualifying private school in
162     accordance with Section 53A-15-1506; and
163          (d) identify the appropriate privacy risk mitigation strategy that will be used to ensure
164     that the LEA or qualifying private school only receives notifications for individuals with whom
165     the LEA or qualifying private school maintains an authorizing relationship.
166          (2) An LEA or qualifying private school may not require an individual to pay the fee
167     described in Subsection (1)(b)(ii) unless the individual:
168          (a) has passed an initial review; and
169          (b) is one of a pool of no more than five candidates for the position.

170          (3) By September 1, 2018, an LEA or qualifying private school shall:
171          (a) collect the information described in Subsection (1)(b) from individuals:
172          (i) who were employed or appointed prior to July 1, 2015; and
173          (ii) with whom the LEA or qualifying private school currently maintains an authorizing
174     relationship; and
175          (b) submit the information to the bureau for ongoing monitoring through registration
176     with the systems described in Section 53A-15-1505.
177          (4) An LEA or qualifying private school that receives criminal history information
178     about a licensed educator under Subsection 53A-15-1504(5) shall assess the employment status
179     of the licensed educator as provided in Section 53A-15-1506.
180          (5) An LEA or qualifying private school may establish a policy to exempt an individual
181     described in Subsections (1)(a)(i) through (iv) from ongoing monitoring under Subsection (1) if
182     the individual is being temporarily employed or appointed.
183          Section 4. Section 53A-15-1504 is amended to read:
184          53A-15-1504. Background checks for licensed educators.
185          The State Board of Education shall:
186          (1) require a license applicant to submit to a nationwide criminal background check
187     and ongoing monitoring as a condition for licensing;
188          (2) collect the following from an applicant:
189          (a) personal identifying information;
190          (b) a fee described in Subsection 53-10-108(15); and
191          (c) consent, on a form specified by the State Board of Education, for:
192          (i) an initial fingerprint-based background check by the FBI and bureau upon
193     submission of the application;
194          (ii) retention of personal identifying information for ongoing monitoring through
195     registration with the systems described in Section 53A-15-1505; and
196          (iii) disclosure of any criminal history information to the individual's employing LEA
197     or qualifying private school;

198          (3) submit an applicant's personal identifying information[, including fingerprints,] to
199     the bureau for:
200          (a) an initial fingerprint-based background check by the FBI and bureau; and
201          (b) ongoing monitoring through registration with the systems described in Section
202     53A-15-1505 if the results of the initial background check do not contain disqualifying
203     criminal history information as determined by the State Board of Education in accordance with
204     Section 53A-15-1506;
205          (4) identify the appropriate privacy risk mitigation strategy that will be used to ensure
206     that the board only receives notifications for individuals with whom the State Board of
207     Education maintains an authorizing relationship;
208          (5) notify the employing LEA or qualifying private school upon receipt of any criminal
209     history information reported on a licensed educator employed by the LEA or qualifying private
210     school; and
211          (6) (a) collect the information described in Subsection (2) from individuals who were
212     licensed prior to July 1, 2015, by the individual's next license renewal date; and
213          (b) submit the information to the bureau for ongoing monitoring through registration
214     with the systems described in Section 53A-15-1505.