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7 LONG TITLE
8 General Description:
9 This bill amends provisions of the background check requirements for individuals who
10 have direct access to children or vulnerable adults.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines "incidental care";
14 ▸ shortens the automatic denial time frame;
15 ▸ modifies background check exemptions; and
16 ▸ makes technical changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 62A-2-108, as last amended by Laws of Utah 2016, Chapter 211
24 62A-2-120, as last amended by Laws of Utah 2016, Chapter 122
25
26 Be it enacted by the Legislature of the state of Utah:
27 Section 1. Section 62A-2-108 is amended to read:
28 62A-2-108. Licensure requirements -- Expiration -- Renewal.
29 (1) Except as provided in Section 62A-2-110, [
30 corporation, association, or governmental unit[
31 [
32 establish, conduct, or maintain a human services program in this state without a valid and
33 current license issued by and under the authority of the office as provided by this chapter and
34 the rules under the authority of this chapter.
35 (2) (a) For purposes of this Subsection (2), "member" means a person or entity that is
36 associated with another person or entity:
37 (i) as a member;
38 (ii) as a partner;
39 (iii) as a shareholder; or
40 (iv) as a person or entity involved in the ownership or management of a human
41 services program owned or managed by the other person or entity.
42 (b) A license issued under this chapter may not be assigned or transferred.
43 (c) An application for a license under this chapter shall be treated as an application for
44 reinstatement of a revoked license if:
45 (i) (A) the person or entity applying for the license had a license revoked under this
46 chapter; and
47 (B) the revoked license described in Subsection (2)(c)(i)(A) is not reinstated before the
48 application described in this Subsection (2)(c) is made; or
49 (ii) a member of an entity applying for the license:
50 (A) (I) had a license revoked under this chapter; and
51 (II) the revoked license described in Subsection (2)(c)(ii)(A)(I) is not reinstated before
52 the application described in this Subsection (2)(c) is made; or
53 (B) (I) was a member of an entity that had a license revoked under this chapter at any
54 time before the license was revoked; and
55 (II) the revoked license described in Subsection (2)(c)(ii)(B)(I) is not reinstated before
56 the application described in this Subsection (2)(c) is made.
57 (3) A current license shall at all times be posted in the facility where each human
58 services program is operated, in a place that is visible and readily accessible to the public.
59 (4) (a) Except as provided in Subsection (4)(c), each license issued under this chapter
60 expires at midnight [
61 the license was issued, one year following the date of issuance unless [
62 (i) previously revoked by the office; [
63 (ii) voluntarily returned to the office by the licensee[
64 (iii) extended by the office.
65 (b) A license shall be renewed upon application and payment of the applicable fee,
66 unless the office finds that the licensee:
67 (i) is not in compliance with the:
68 (A) provisions of this chapter; or
69 (B) rules made under this chapter;
70 (ii) has engaged in a pattern of noncompliance with the:
71 (A) provisions of this chapter; or
72 (B) rules made under this chapter;
73 (iii) has engaged in conduct that is grounds for denying a license under Section
74 62A-2-112; or
75 (iv) has engaged in conduct that poses a substantial risk of harm to any person.
76 (c) The office may issue a renewal license that expires at midnight [
77
78 following the date of issuance, if:
79 (i) the licensee has maintained a human services license for at least 24 months before
80 the day on which the licensee applies for the renewal; and
81 (ii) the licensee has not violated this chapter or a rule made under this chapter.
82 (5) Any licensee that is in operation at the time rules are made in accordance with this
83 chapter shall be given a reasonable time for compliance as determined by the rule.
84 (6) (a) A license for a human services program issued under this section shall apply to
85 a specific human services program site.
86 (b) A human services program shall obtain a separate license for each site where the
87 human services program is operated.
88 Section 2. Section 62A-2-120 is amended to read:
89 62A-2-120. Background check -- Direct access to children or vulnerable adults.
90 (1) As used in this section:
91 (a) "Applicant" means:
92 (i) a person described in Section 62A-2-101;
93 (ii) an individual who:
94 (A) is associated with a licensee; and
95 (B) has or will likely have direct access to a child or a vulnerable adult;
96 (iii) an individual who provides respite care to a foster parent or an adoptive parent on
97 more than one occasion;
98 (iv) a department contractor; or
99 (v) a guardian submitting an application on behalf of an individual, other than the child
100 or vulnerable adult who is receiving the service, if the individual is 12 years of age or older
101 and:
102 (A) resides in a home, that is licensed or certified by the office, with the child or
103 vulnerable adult who is receiving services; or
104 (B) is a person or individual described in Subsection (1)(a)(i), (ii), (iii), or (iv).
105 (b) "Application" means a background screening application to the office.
106 (c) "Bureau" means the Bureau of Criminal Identification within the Department of
107 Public Safety, created in Section 53-10-201.
108 (d) "Incidental care" means occasional care, not in excess of five hours per week and
109 never overnight, for a foster child.
110 [
111 (i) current name, former names, nicknames, and aliases;
112 (ii) date of birth;
113 (iii) physical address and email address;
114 (iv) telephone number;
115 (v) driver license [
116 (vi) social security number;
117 (vii) only for applicants who are 18 years of age or older, fingerprints, in a form
118 specified by the office; and
119 (viii) other information specified by the office by rule made in accordance with Title
120 63G, Chapter 3, Utah Administrative Rulemaking Act.
121 (2) (a) Except as provided in [
122 submit the following to the office:
123 (i) personal identifying information;
124 (ii) a fee established by the office under Section 63J-1-504; and
125 (iii) a form, specified by the office, for consent for:
126 (A) an initial background check upon submission of the information described under
127 Subsection (2)(a);
128 (B) a background check at the applicant's annual renewal;
129 (C) a background check when the office determines that reasonable cause exists; and
130 (D) retention of personal identifying information, including fingerprints, for
131 monitoring and notification as described in Subsections (3)(d) and (4).
132 (b) In addition to the requirements described in Subsection (2)(a), if an applicant spent
133 time outside of the United States and its territories during the five years immediately preceding
134 the day on which the information described in Subsection (2)(a) is submitted to the office, the
135 office may require the applicant to submit documentation establishing whether the applicant
136 was convicted of a crime during the time that the applicant spent outside of the United States or
137 its territories.
138 (3) The office:
139 (a) shall perform the following duties as part of a background check of an applicant:
140 (i) check state and regional criminal background databases for the applicant's criminal
141 history by:
142 (A) submitting personal identifying information to the Bureau for a search; or
143 (B) using the applicant's personal identifying information to search state and regional
144 criminal background databases as authorized under Section 53-10-108;
145 (ii) submit the applicant's personal identifying information and fingerprints to the
146 Bureau for a criminal history search of applicable national criminal background databases;
147 (iii) search the Department of Human Services, Division of Child and Family Services'
148 Licensing Information System described in Section 62A-4a-1006;
149 (iv) search the Department of Human Services, Division of Aging and Adult Services'
150 vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
151 (v) search the juvenile court records for substantiated findings of severe child abuse or
152 neglect described in Section 78A-6-323; and
153 (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
154 under Section 78A-6-209;
155 (b) shall conduct a background check of an applicant for an initial background check
156 upon submission of the information described under Subsection (2)(a);
157 (c) may conduct all or portions of a background check of an applicant, as provided by
158 rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
159 Rulemaking Act:
160 (i) for an annual renewal; or
161 (ii) when the office determines that reasonable cause exists;
162 (d) may submit an applicant's personal identifying information, including fingerprints,
163 to the Bureau for checking, retaining, and monitoring of state and national criminal background
164 databases and for notifying the office of new criminal activity associated with the applicant;
165 (e) shall track the status of an approved applicant under this section to ensure that an
166 approved applicant is not required to duplicate the submission of the applicant's fingerprints if
167 the applicant applies for:
168 (i) more than one license;
169 (ii) direct access to a child or a vulnerable adult in more than one human services
170 program; or
171 (iii) direct access to a child or a vulnerable adult under a contract with the department;
172 (f) shall track the status of each license and each individual with direct access to a child
173 or a vulnerable adult and notify the Bureau when the license has expired or the individual's
174 direct access to a child or a vulnerable adult has ceased;
175 (g) shall adopt measures to strictly limit access to personal identifying information
176 solely to the office employees responsible for processing the applications for background
177 checks and to protect the security of the personal identifying information the office reviews
178 under this Subsection (3); and
179 (h) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
180 Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
181 checks.
182 (4) (a) With the personal identifying information the office submits to the Bureau
183 under Subsection (3), the Bureau shall check against state and regional criminal background
184 databases for the applicant's criminal history.
185 (b) With the personal identifying information and fingerprints the office submits to the
186 Bureau under Subsection (3), the Bureau shall check against national criminal background
187 databases for the applicant's criminal history.
188 (c) Upon direction from the office, and with the personal identifying information and
189 fingerprints the office submits to the Bureau under Subsection (3)(d), the Bureau shall:
190 (i) maintain a separate file of the fingerprints for search by future submissions to the
191 local and regional criminal records databases, including latent prints; and
192 (ii) monitor state and regional criminal background databases and identify criminal
193 activity associated with the applicant.
194 (d) The Bureau is authorized to submit the fingerprints to the Federal Bureau of
195 Investigation Next Generation Identification System, to be retained in the Federal Bureau of
196 Investigation Next Generation Identification System for the purpose of:
197 (i) being searched by future submissions to the national criminal records databases,
198 including the Federal Bureau of Investigation Next Generation Identification System and latent
199 prints; and
200 (ii) monitoring national criminal background databases and identifying criminal
201 activity associated with the applicant.
202 (e) The Bureau shall notify and release to the office all information of criminal activity
203 associated with the applicant.
204 (f) Upon notice from the office that a license has expired or an individual's direct
205 access to a child or a vulnerable adult has ceased, the Bureau shall:
206 (i) discard and destroy any retained fingerprints; and
207 (ii) notify the Federal Bureau of Investigation when the license has expired or an
208 individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
209 of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
210 Investigation Next Generation Identification System.
211 (5) (a) After conducting the background check described in Subsections (3) and (4), the
212 office shall deny an application to an applicant who, within [
213 which the applicant submits information to the office under Subsection (2) for a background
214 check, has been convicted of any of the following, regardless of whether the offense is a felony,
215 a misdemeanor, or an infraction:
216 (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
217 animals, or bestiality;
218 (ii) a violation of any pornography law, including sexual exploitation of a minor;
219 (iii) prostitution;
220 (iv) an offense included in:
221 (A) Title 76, Chapter 5, Offenses Against the Person;
222 (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
223 (C) Title 76, Chapter 7, Offenses Against the Family;
224 (v) aggravated arson, as described in Section 76-6-103;
225 (vi) aggravated burglary, as described in Section 76-6-203;
226 (vii) aggravated robbery, as described in Section 76-6-302;
227 (viii) identity fraud crime, as described in Section 76-6-1102; or
228 (ix) a conviction for a felony or misdemeanor offense committed outside of the state
229 that, if committed in the state, would constitute a violation of an offense described in
230 Subsections (5)(a)(i) through (viii).
231 (b) If the office denies an application to an applicant based on a conviction described in
232 Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
233 Subsection (6).
234 (6) (a) The office shall conduct a comprehensive review of an applicant's background
235 check if the applicant [
236 (i) has a conviction for any felony offense, not described in Subsection (5)(a),
237 regardless of the date of the conviction;
238 (ii) has a conviction for a misdemeanor offense, not described in Subsection (5)(a), and
239 designated by the office, by rule, in accordance with Title 63G, Chapter 3, Utah Administrative
240 Rulemaking Act, if the conviction is within five years before the day on which the applicant
241 submits information to the office under Subsection (2) for a background check;
242 (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
243 than [
244 Subsection (2)(a);
245 (iv) [
246 agreement for any offense described in Subsection (5)(a);
247 (v) has a listing in the Department of Human Services, Division of Child and Family
248 Services' Licensing Information System described in Section 62A-4a-1006;
249 (vi) has a listing in the Department of Human Services, Division of Aging and Adult
250 Services' vulnerable adult abuse, neglect, or exploitation database described in Section
251 62A-3-311.1;
252 (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
253 or neglect described in Section 78A-6-323;
254 (viii) has a record of an adjudication in juvenile court for an act that, if committed by
255 an adult, would be a felony or misdemeanor, if the applicant is:
256 (A) under 28 years of age; or
257 (B) 28 years of age or older and has been convicted of, has pleaded no contest to, or is
258 currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor
259 offense described in Subsection (5)(a); or
260 (ix) has a pending charge for an offense described in Subsection (5)(a).
261 (b) The comprehensive review described in Subsection (6)(a) shall include an
262 examination of:
263 (i) the date of the offense or incident;
264 (ii) the nature and seriousness of the offense or incident;
265 (iii) the circumstances under which the offense or incident occurred;
266 (iv) the age of the perpetrator when the offense or incident occurred;
267 (v) whether the offense or incident was an isolated or repeated incident;
268 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
269 adult, including:
270 (A) actual or threatened, nonaccidental physical or mental harm;
271 (B) sexual abuse;
272 (C) sexual exploitation; or
273 (D) negligent treatment;
274 (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
275 treatment received, or additional academic or vocational schooling completed; and
276 (viii) any other pertinent information.
277 (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
278 office shall deny an application to an applicant if the office finds that approval would likely
279 create a risk of harm to a child or a vulnerable adult.
280 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
281 office may make rules, consistent with this chapter, to establish procedures for the
282 comprehensive review described in this Subsection (6).
283 (7) Subject to Subsection (10), the office shall approve an application to an applicant
284 who is not denied under Subsection (5), (6), or (13).
285 (8) (a) The office may conditionally approve an application of an applicant, for a
286 maximum of 60 days after the day on which the office sends written notice to the applicant
287 under Subsection (12), without requiring that the applicant be directly supervised, if the office:
288 (i) is awaiting the results of the criminal history search of national criminal background
289 databases; and
290 (ii) would otherwise approve an application of the applicant under Subsection (7).
291 (b) Upon receiving the results of the criminal history search of national criminal
292 background databases, the office shall approve or deny the application of the applicant in
293 accordance with Subsections (5) through (7).
294 (9) A licensee or department contractor may not permit an individual to have direct
295 access to a child or a vulnerable adult unless, subject to Subsection (10):
296 (a) the individual is associated with the licensee or department contractor and:
297 (i) the individual's application is approved by the office under this section;
298 (ii) the individual's application is conditionally approved by the office under
299 Subsection (8); or
300 (iii) (A) the individual has submitted the background check information described in
301 Subsection (2) to the office;
302 (B) the office has not determined whether to approve the applicant's application; and
303 (C) the individual is directly supervised by an individual who has a current background
304 screening approval issued by the office under this section and is associated with the licensee or
305 department contractor;
306 (b) (i) the individual is associated with the licensee or department contractor;
307 (ii) the individual has a current background screening approval issued by the office
308 under this section;
309 (iii) one of the following circumstances, that the office has not yet reviewed under
310 Subsection (6), applies to the individual:
311 (A) the individual was charged with an offense described in Subsection (5)(a);
312 (B) the individual is listed in the Licensing Information System, described in Section
313 62A-4a-1006;
314 (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
315 database, described in Section 62A-3-311.1;
316 (D) the individual has a record in the juvenile court of a substantiated finding of severe
317 child abuse or neglect, described in Section 78A-6-323; or
318 (E) the individual has a record of an adjudication in juvenile court for an act that, if
319 committed by an adult, would be a felony or a misdemeanor; and
320 (iv) the individual is directly supervised by an individual who:
321 (A) has a current background screening approval issued by the office under this
322 section; and
323 (B) is associated with the licensee or department contractor;
324 (c) the individual:
325 (i) is not associated with the licensee or department contractor; and
326 (ii) is directly supervised by an individual who:
327 (A) has a current background screening approval issued by the office under this
328 section; and
329 (B) is associated with the licensee or department contractor;
330 (d) the individual is the parent or guardian of the child, or the guardian of the
331 vulnerable adult;
332 (e) the individual is approved by the parent or guardian of the child, or the guardian of
333 the vulnerable adult, to have direct access to the child or the vulnerable adult; [
334 (f) the individual is only permitted to have direct access to a vulnerable adult who
335 voluntarily invites the individual to visit[
336 (g) the individual only provides incidental care for a foster child on behalf of a foster
337 parent who has used reasonable and prudent judgment to select the individual to provide the
338 incidental care for the foster child.
339 (10) An individual may not have direct access to a child or a vulnerable adult if the
340 individual is prohibited by court order from having that access.
341 (11) Notwithstanding any other provision of this section, an individual for whom the
342 office denies an application may not have supervised or unsupervised direct access to a child or
343 vulnerable adult unless the office approves a subsequent application by the individual.
344 (12) (a) Within 30 days after the day on which the office receives the background
345 check information for an applicant, the office shall give written notice to:
346 (i) the applicant, and the licensee or department contractor, of the office's decision
347 regarding the background check and findings; and
348 (ii) the applicant of any convictions and potentially disqualifying charges and
349 adjudications found in the search.
350 (b) With the notice described in Subsection (12)(a), the office shall also give the
351 applicant the details of any comprehensive review conducted under Subsection (6).
352 (c) If the notice under Subsection (12)(a) states that the applicant's application is
353 denied, the notice shall further advise the applicant that the applicant may, under Subsection
354 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
355 challenge the office's decision.
356 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
357 office shall make rules, consistent with this chapter:
358 (i) defining procedures for the challenge of its background check decision described in
359 Subsection (12)(c); and
360 (ii) expediting the process for renewal of a license under the requirements of this
361 section and other applicable sections.
362 [
363
364
365 (13) An individual or a department contractor who provides services in an adults only
366 substance use disorder program, as defined by rule, is exempt from this section. This
367 exemption does not extend to a program director or a member, as defined by Section
368 62A-2-108, of the program.
369 (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
370 of this section, if the background check of an applicant is being conducted for the purpose of
371 licensing a prospective foster home or approving a prospective adoptive placement of a child in
372 state custody, the office shall:
373 (i) check the child abuse and neglect registry in each state where each applicant resided
374 in the five years immediately preceding the day on which the applicant applied to be a foster
375 parent or adoptive parent, to determine whether the prospective foster parent or prospective
376 adoptive parent is listed in the registry as having a substantiated or supported finding of child
377 abuse or neglect; and
378 (ii) check the child abuse and neglect registry in each state where each adult living in
379 the home of the applicant described in Subsection (14)(a)(i) resided in the five years
380 immediately preceding the day on which the applicant applied to be a foster parent or adoptive
381 parent, to determine whether the adult is listed in the registry as having a substantiated or
382 supported finding of child abuse or neglect.
383 (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
384 (i) federal law or rule permits otherwise; or
385 (ii) the requirements would prohibit the Division of Child and Family Services or a
386 court from placing a child with:
387 (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
388 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
389 or 78A-6-307.5, pending completion of the background check described in Subsection (5).
390 (c) Notwithstanding Subsections (5) through (9), the office shall deny a license or a
391 license renewal to a prospective foster parent or a prospective adoptive parent if the applicant
392 has been convicted of:
393 (i) a felony involving conduct that constitutes any of the following:
394 (A) child abuse, as described in Section 76-5-109;
395 (B) commission of domestic violence in the presence of a child, as described in Section
396 76-5-109.1;
397 (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
398 (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
399 (E) aggravated murder, as described in Section 76-5-202;
400 (F) murder, as described in Section 76-5-203;
401 (G) manslaughter, as described in Section 76-5-205;
402 (H) child abuse homicide, as described in Section 76-5-208;
403 (I) homicide by assault, as described in Section 76-5-209;
404 (J) kidnapping, as described in Section 76-5-301;
405 (K) child kidnapping, as described in Section 76-5-301.1;
406 (L) aggravated kidnapping, as described in Section 76-5-302;
407 (M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
408 (N) sexual exploitation of a minor, as described in Section 76-5b-201;
409 (O) aggravated arson, as described in Section 76-6-103;
410 (P) aggravated burglary, as described in Section 76-6-203;
411 (Q) aggravated robbery, as described in Section 76-6-302; or
412 (R) domestic violence, as described in Section 77-36-1; or
413 (ii) an offense committed outside the state that, if committed in the state, would
414 constitute a violation of an offense described in Subsection (14)(c)(i).
415 (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
416 license renewal to a prospective foster parent or a prospective adoptive parent if, within the
417 five years immediately preceding the day on which the individual's application or license would
418 otherwise be approved, the applicant was convicted of a felony involving conduct that
419 constitutes a violation of any of the following:
420 (i) aggravated assault, as described in Section 76-5-103;
421 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
422 (iii) mayhem, as described in Section 76-5-105;
423 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
424 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
425 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
426 Act;
427 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
428 Precursor Act; or
429 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
430 (e) In addition to the circumstances described in Subsection (6)(a), the office shall
431 conduct the comprehensive review of an applicant's background check pursuant to this section
432 if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
433 child abuse and neglect registry of another state as having a substantiated or supported finding
434 of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
Legislative Review Note
Office of Legislative Research and General Counsel