1     
OFFICE OF LICENSING AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Dean Sanpei

5     
Senate Sponsor: Curtis S. Bramble

6     

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, [a person] an individual, agency, firm,
30     corporation, association, or governmental unit[,] acting severally or jointly with any other
31     [person] individual, agency, firm, corporation, association, or governmental unit[,] may not
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 [12 months from the date of issuance] on the last day of the same month
61     the license was issued, one year following the date of issuance unless [it] the license has been:
62          (i) previously revoked by the office; [or]
63          (ii) voluntarily returned to the office by the licensee[.]; or
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 [24 months after the
77     day on which it is issued if] on the last day of the same month the license was issued, two years
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          [(d)] (e) "Personal identifying information" means:
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 [number] or other government-issued identification [number];
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 [Subsection] Subsections (13) and (14), an applicant shall
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 [10] three years before the day on
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 [has]:
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 [10] three years before the day on which the applicant submitted information under
244     Subsection (2)(a);

245          (iv) [pleaded no contest to or] is currently subject to a plea in abeyance or diversion
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; [or]
334          (f) the individual is only permitted to have direct access to a vulnerable adult who
335     voluntarily invites the individual to visit[.]; or
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          [(13) This section does not apply to a department contractor, or an applicant for an
363     initial license, or license renewal, regarding a substance abuse program that provides services
364     to adults only.]
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