This document includes House Committee Amendments incorporated into the bill on Thu, Jan 25, 2018 at 11:36 AM by lerror.
This document includes House Floor Amendments incorporated into the bill on Fri, Feb 2, 2018 at 1:21 PM by bbryner.
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Fri, Mar 2, 2018 at 4:32 PM by lpoole.
1     
SUBSTANCE ABUSE TREATMENT FACILITY PATIENT

2     
BROKERING

3     
2018 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Eric K. Hutchings

6     
Senate Sponsor: Gene Davis

7     

8     LONG TITLE
9     Committee Note:
10          The Health Reform Task Force recommended this bill.
11     General Description:
12          This bill makes remuneration for the referral of an individual for substance use disorder
13     treatment an unlawful act.
14     Highlighted Provisions:
15          This bill:
16          ▸     makes remuneration for the referral of an individual for substance use disorder
17     treatment a Ŝ→ [third degree felony] class A misdemeanor ←Ŝ ;
18          ▸     specifies permissible exceptions;
19          ▸     defines terms; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          26-36a-103, as last amended by Laws of Utah 2013, Chapter 32
28          26-36b-103, as enacted by Laws of Utah 2016, Chapter 279
29          62A-2-101, as last amended by Laws of Utah 2017, Chapters 29, 148, and 209
30          62A-2-116, as last amended by Laws of Utah 2016, Chapter 211
31          63G-2-305, as last amended by Laws of Utah 2017, Chapters 374, 382, and 415
32          77-7a-104, as last amended by Laws of Utah 2017, Chapter 415
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 26-36a-103 is amended to read:
36          26-36a-103. Definitions.
37          As used in this chapter:
38          (1) "Accountable care organization" means a managed care organization, as defined in
39     42 C.F.R. Sec. 438, that contracts with the department under the provisions of Section
40     26-18-405.
41          (2) "Assessment" means the Medicaid hospital provider assessment established by this
42     chapter.
43          (3) "Discharges" means the number of total hospital discharges reported on worksheet
44     S-3 Part I, column 15, lines 12, 14, and 14.01 of the 2552-96 Medicare Cost Report or on
45     Worksheet S-3 Part I, column 15, lines 14, 16, and 17 of the 2552-10 Medicare Cost Report for
46     the applicable assessment year.
47          (4) "Division" means the Division of Health Care Financing of the department.
48          (5) "Hospital":
49          (a) means a privately owned:
50          (i) general acute hospital operating in the state as defined in Section 26-21-2; and
51          (ii) specialty hospital operating in the state, which shall include a privately owned
52     hospital whose inpatient admissions are predominantly:
53          (A) rehabilitation;
54          (B) psychiatric;
55          (C) chemical dependency; or
56          (D) long-term acute care services; and
57          (b) does not include:
58          (i) [a residential care or treatment facility] a human services program, as defined in
59     Section 62A-2-101;
60          (ii) a hospital owned by the federal government, including the Veterans Administration
61     Hospital; or
62          (iii) a hospital that is owned by the state government, a state agency, or a political
63     subdivision of the state, including:
64          (A) a state-owned teaching hospital; and
65          (B) the Utah State Hospital.
66          (6) "Medicare cost report" means CMS-2552-96 or CMS-2552-10, the cost report for
67     electronic filing of hospitals.
68          (7) "State plan amendment" means a change or update to the state Medicaid plan.
69          Section 2. Section 26-36b-103 is amended to read:
70          26-36b-103. Definitions.
71          As used in this chapter:
72          (1) "Assessment" means the inpatient hospital assessment established by this chapter.
73          (2) "CMS" means the same as that term is defined in Section 26-18-411.
74          (3) "Discharges" means the number of total hospital discharges reported on:
75          (a) Worksheet S-3 Part I, column 15, lines 14, 16, and 17 of the 2552-10 Medicare cost
76     report for the applicable assessment year; or
77          (b) a similar report adopted by the department by administrative rule, if the report
78     under Subsection (3)(a) is no longer available.
79          (4) "Division" means the Division of Health Care Financing within the department.
80          (5) "Medicare cost report" means CMS-2552-10, the cost report for electronic filing of
81     hospitals.
82          (6) "Non-state government hospital":
83          (a) means a hospital owned by a non-state government entity; and
84          (b) does not include:
85          (i) the Utah State Hospital; or
86          (ii) a hospital owned by the federal government, including the Veterans Administration
87     Hospital.
88          (7) "Private hospital":
89          (a) means:
90          (i) a privately owned general acute hospital operating in the state as defined in Section
91     26-21-2; and
92          (ii) a privately owned specialty hospital operating in the state, which shall include a
93     privately owned hospital whose inpatient admissions are predominantly:
94          (A) rehabilitation;
95          (B) psychiatric;
96          (C) chemical dependency; or
97          (D) long-term acute care services; and
98          (b) does not include a [residential care or treatment facility] human services program,
99     as defined in Section 62A-2-101.
100          (8) "State teaching hospital" means a state owned teaching hospital that is part of an
101     institution of higher education.
102          Section 3. Section 62A-2-101 is amended to read:
103          62A-2-101. Definitions.
104          As used in this chapter:
105          (1) "Adult day care" means nonresidential care and supervision:
106          (a) for three or more adults for at least four but less than 24 hours a day; and
107          (b) that meets the needs of functionally impaired adults through a comprehensive
108     program that provides a variety of health, social, recreational, and related support services in a
109     protective setting.
110          (2) "Applicant" means a person who applies for an initial license or a license renewal
111     under this chapter.
112          (3) (a) "Associated with the licensee" means that an individual is:
113          (i) affiliated with a licensee as an owner, director, member of the governing body,
114     employee, agent, provider of care, department contractor, or volunteer; or
115          (ii) applying to become affiliated with a licensee in a capacity described in Subsection
116     (3)(a)(i).
117          (b) "Associated with the licensee" does not include:
118          (i) service on the following bodies, unless that service includes direct access to a child
119     or a vulnerable adult:
120          (A) a local mental health authority described in Section 17-43-301;
121          (B) a local substance abuse authority described in Section 17-43-201; or
122          (C) a board of an organization operating under a contract to provide mental health or
123     substance abuse programs, or services for the local mental health authority or substance abuse
124     authority; or
125          (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
126     at all times.
127          (4) (a) "Boarding school" means a private school that:
128          (i) uses a regionally accredited education program;
129          (ii) provides a residence to the school's students:
130          (A) for the purpose of enabling the school's students to attend classes at the school; and
131          (B) as an ancillary service to educating the students at the school;
132          (iii) has the primary purpose of providing the school's students with an education, as
133     defined in Subsection (4)(b)(i); and
134          (iv) (A) does not provide the treatment or services described in Subsection [(29)]
135     (33)(a); or
136          (B) provides the treatment or services described in Subsection [(29)] (33)(a) on a
137     limited basis, as described in Subsection (4)(b)(ii).
138          (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for
139     one or more of grades kindergarten through 12th grade.
140          (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or
141     services described in Subsection [(29)] (33)(a) on a limited basis if:
142          (A) the treatment or services described in Subsection [(29)] (33)(a) are provided only
143     as an incidental service to a student; and
144          (B) the school does not:
145          (I) specifically solicit a student for the purpose of providing the treatment or services
146     described in Subsection [(29)] (33)(a); or
147          (II) have a primary purpose of providing the treatment or services described in
148     Subsection [(29)] (33)(a).
149          (c) "Boarding school" does not include a therapeutic school.
150          (5) "Child" means a person under 18 years of age.
151          (6) "Child placing" means receiving, accepting, or providing custody or care for any
152     child, temporarily or permanently, for the purpose of:
153          (a) finding a person to adopt the child;
154          (b) placing the child in a home for adoption; or
155          (c) foster home placement.
156          (7) "Child-placing agency" means a person that engages in child placing.
157          (8) "Client" means an individual who receives or has received services from a licensee.
158          (9) "Day treatment" means specialized treatment that is provided to:
159          (a) a client less than 24 hours a day; and
160          (b) four or more persons who:
161          (i) are unrelated to the owner or provider; and
162          (ii) have emotional, psychological, developmental, physical, or behavioral
163     dysfunctions, impairments, or chemical dependencies.
164          (10) "Department" means the Department of Human Services.
165          (11) "Department contractor" means an individual who:
166          (a) provides services under a contract with the department; and
167          (b) due to the contract with the department, has or will likely have direct access to a
168     child or vulnerable adult.
169          (12) "Direct access" means that an individual has, or likely will have:
170          (a) contact with or access to a child or vulnerable adult that provides the individual
171     with an opportunity for personal communication or touch; or
172          (b) an opportunity to view medical, financial, or other confidential personal identifying
173     information of the child, the child's parents or legal guardians, or the vulnerable adult.
174          (13) "Directly supervised" means that an individual is being supervised under the
175     uninterrupted visual and auditory surveillance of another individual who has a current
176     background screening approval issued by the office.
177          (14) "Director" means the director of the Office of Licensing.
178          (15) "Domestic violence" means the same as that term is defined in Section 77-36-1.
179          (16) "Domestic violence treatment program" means a nonresidential program designed
180     to provide psychological treatment and educational services to perpetrators and victims of
181     domestic violence.
182          (17) "Elder adult" means a person 65 years of age or older.
183          (18) "Executive director" means the executive director of the department.
184          (19) "Foster home" means a residence that is licensed or certified by the Office of
185     Licensing for the full-time substitute care of a child.
186          (20) "Health benefit plan" means the same as that term is defined in Section
187     31A-22-619.6.
188          (21) "Health care provider" means the same as that term is defined in Section
189     78B-3-403.
190          (22) "Health insurer" means the same as that term is defined in Section 31A-22-615.5.
191          [(20)] (23) (a) "Human services program" means a:
192          (i) foster home;
193          (ii) therapeutic school;
194          (iii) youth program;
195          (iv) resource family home;
196          (v) recovery residence; or
197          (vi) facility or program that provides:
198          (A) secure treatment;
199          (B) inpatient treatment;
200          (C) residential treatment;
201          (D) residential support;
202          (E) adult day care;
203          (F) day treatment;
204          (G) outpatient treatment;
205          (H) domestic violence treatment;
206          (I) child-placing services;
207          (J) social detoxification; or
208          (K) any other human services that are required by contract with the department to be
209     licensed with the department.
210          (b) "Human services program" does not include a boarding school.
211          [(21)] (24) "Indian child" means the same as that term is defined in 25 U.S.C. Sec.
212     1903.
213          [(22)] (25) "Indian country" means the same as that term is defined in 18 U.S.C. Sec.
214     1151.
215          [(23)] (26) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec.
216     1903.
217          [(24)] (27) "Licensee" means an individual or a human services program licensed by
218     the office.
219          [(25)] (28) "Local government" means a city, town, metro township, or county.
220          [(26)] (29) "Minor" has the same meaning as "child."
221          [(27)] (30) "Office" means the Office of Licensing within the Department of Human
222     Services.
223          [(28)] (31) "Outpatient treatment" means individual, family, or group therapy or
224     counseling designed to improve and enhance social or psychological functioning for those
225     whose physical and emotional status allows them to continue functioning in their usual living
226     environment.
227          (32) "Practice group" or "group practice" means two or more health care providers
228     legally organized as a partnership, professional corporation, or similar association, for which:
229          (a) substantially all of the services of the health care providers who are members of the
230     group are provided through the group and are billed in the name of the group and amounts
231     received are treated as receipts of the group; and
232          (b) the overhead expenses of and the income from the practice are distributed in
233     accordance with methods previously determined by members of the group.
234          [(29)] (33) (a) "Recovery residence" means a home, residence, or facility that meets at
235     least two of the following requirements:
236          (i) provides a supervised living environment for individuals recovering from a
237     substance [abuse] use disorder;
238          (ii) provides a living environment in which more than half of the individuals in the
239     residence are recovering from a substance [abuse] use disorder;
240          (iii) provides or arranges for residents to receive services related to their recovery from
241     a substance [abuse] use disorder, either on or off site;
242          (iv) is held out as a living environment in which individuals recovering from substance
243     abuse disorders live together to encourage continued sobriety; or
244          (v) (A) receives public funding; or
245          (B) is run as a business venture, either for-profit or not-for-profit.
246          (b) "Recovery residence" does not mean:
247          (i) a residential treatment program;
248          (ii) residential support; or
249          (iii) a home, residence, or facility, in which:
250          (A) residents, by their majority vote, establish, implement, and enforce policies
251     governing the living environment, including the manner in which applications for residence are
252     approved and the manner in which residents are expelled;
253          (B) residents equitably share rent and housing-related expenses; and
254          (C) a landlord, owner, or operator does not receive compensation, other than fair
255     market rental income, for establishing, implementing, or enforcing policies governing the
256     living environment.
257          [(30)] (34) "Regular business hours" means:
258          (a) the hours during which services of any kind are provided to a client; or
259          (b) the hours during which a client is present at the facility of a licensee.
260          [(31)] (35) (a) "Residential support" means arranging for or providing the necessities of
261     life as a protective service to individuals or families who have a disability or who are
262     experiencing a dislocation or emergency that prevents them from providing these services for
263     themselves or their families.
264          (b) "Residential support" includes providing a supervised living environment for
265     persons with dysfunctions or impairments that are:
266          (i) emotional;
267          (ii) psychological;
268          (iii) developmental; or
269          (iv) behavioral.
270          (c) Treatment is not a necessary component of residential support.
271          (d) "Residential support" does not include:
272          (i) a recovery residence; or
273          (ii) residential services that are performed:
274          (A) exclusively under contract with the Division of Services for People with
275     Disabilities; or
276          (B) in a facility that serves fewer than four individuals.
277          [(32)] (36) (a) "Residential treatment" means a 24-hour group living environment for
278     four or more individuals unrelated to the owner or provider that offers room or board and
279     specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or
280     habilitation services for persons with emotional, psychological, developmental, or behavioral
281     dysfunctions, impairments, or chemical dependencies.
282          (b) "Residential treatment" does not include a:
283          (i) boarding school;
284          (ii) foster home; or
285          (iii) recovery residence.
286          [(33)] (37) "Residential treatment program" means a human services program that
287     provides:
288          (a) residential treatment; or
289          (b) secure treatment.
290          [(34)] (38) (a) "Secure treatment" means 24-hour specialized residential treatment or
291     care for persons whose current functioning is such that they cannot live independently or in a
292     less restrictive environment.
293          (b) "Secure treatment" differs from residential treatment to the extent that it requires
294     intensive supervision, locked doors, and other security measures that are imposed on residents
295     with neither their consent nor control.
296          [(35)] (39) "Social detoxification" means short-term residential services for persons
297     who are experiencing or have recently experienced drug or alcohol intoxication, that are
298     provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care
299     Facility Licensing and Inspection Act, and that include:
300          (a) room and board for persons who are unrelated to the owner or manager of the
301     facility;
302          (b) specialized rehabilitation to acquire sobriety; and
303          (c) aftercare services.
304          (40) "Substance abuse disorder" or "substance use disorder" mean the same as
305     "substance use disorder" is defined in Section 62A-15-1202.
306          [(36)] (41) "Substance abuse treatment program" or "substance use disorder treatment
307     program" means a program:
308          (a) designed to provide:
309          (i) specialized drug or alcohol treatment;
310          (ii) rehabilitation; or
311          (iii) habilitation services; and
312          (b) that provides the treatment or services described in Subsection [(36)] (40)(a) to
313     persons with:
314          (i) a diagnosed substance [abuse] use disorder; or
315          (ii) chemical dependency disorder.
316          [(37)] (42) "Therapeutic school" means a residential group living facility:
317          (a) for four or more individuals that are not related to:
318          (i) the owner of the facility; or
319          (ii) the primary service provider of the facility;
320          (b) that serves students who have a history of failing to function:
321          (i) at home;
322          (ii) in a public school; or
323          (iii) in a nonresidential private school; and
324          (c) that offers:
325          (i) room and board; and
326          (ii) an academic education integrated with:
327          (A) specialized structure and supervision; or
328          (B) services or treatment related to:
329          (I) a disability;
330          (II) emotional development;
331          (III) behavioral development;
332          (IV) familial development; or
333          (V) social development.
334          [(38)] (43) "Unrelated persons" means persons other than parents, legal guardians,
335     grandparents, brothers, sisters, uncles, or aunts.
336          [(39)] (44) "Vulnerable adult" means an elder adult or an adult who has a temporary or
337     permanent mental or physical impairment that substantially affects the person's ability to:
338          (a) provide personal protection;
339          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
340          (c) obtain services necessary for health, safety, or welfare;
341          (d) carry out the activities of daily living;
342          (e) manage the adult's own resources; or
343          (f) comprehend the nature and consequences of remaining in a situation of abuse,
344     neglect, or exploitation.
345          [(40)] (45) (a) "Youth program" means a nonresidential program designed to provide
346     behavioral, substance abuse, or mental health services to minors that:
347          (i) serves adjudicated or nonadjudicated youth;
348          (ii) charges a fee for its services;
349          (iii) may or may not provide host homes or other arrangements for overnight
350     accommodation of the youth;
351          (iv) may or may not provide all or part of its services in the outdoors;
352          (v) may or may not limit or censor access to parents or guardians; and
353          (vi) prohibits or restricts a minor's ability to leave the program at any time of the
354     minor's own free will.
355          (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
356     Scouts, 4-H, and other such organizations.
357          Section 4. Section 62A-2-116 is amended to read:
358          62A-2-116. Violation -- Criminal penalties.
359          (1) (a) A person who owns, establishes, conducts, maintains, manages, or operates a
360     human services program in violation of this chapter is guilty of a class A misdemeanor if the
361     violation endangers or harms the health, welfare, or safety of persons participating in that
362     program.
363          (b) Conviction in a criminal proceeding does not preclude the office from:
364          (i) assessing a civil penalty or an administrative penalty;
365          (ii) denying, placing conditions on, suspending, or revoking a license; or
366          (iii) seeking injunctive or equitable relief.
367          (2) Any person that violates a provision of this chapter, lawful orders of the office, or
368     rules adopted under this chapter may be assessed a penalty not to exceed the sum of $10,000
369     per violation, in:
370          (a) a judicial civil proceeding; or
371          (b) an administrative action in accordance with Title 63G, Chapter 4, Administrative
372     Procedures Act.
373          (3) Assessment of a judicial penalty or an administrative penalty does not preclude the
374     office from:
375          (a) seeking criminal penalties;
376          (b) denying, placing conditions on, suspending, or revoking a license; or
377          (c) seeking injunctive or equitable relief.
378          (4) The office may assess the human services program the cost incurred by the office in
379     placing a monitor.
380          (5) Notwithstanding Subsection (1)(a) and subject to Subsections (1)(b) and (2), an
381     individual is guilty of a Ŝ→ [third degree felony] class A misdemeanor ←Ŝ Ĥ→ [and, upon
381a1     conviction, Ĥ→ [shall] may ←Ĥ be
381a     imprisoned for not
382     more than five years] ←Ĥ if the individual knowingly and willfully offers, pays, promises to pay,
383     solicits, or receives any remuneration, including any commission, bonus, kickback, bribe, or
384     rebate, directly or indirectly, overtly or covertly, in cash or in kind, or engages in any split-fee
385     arrangement in return for:
386          (a) referring an individual to a person for the furnishing or arranging for the furnishing
387     of any item or service for the treatment of a substance use disorder; or
388          (b) receiving a referred individual for the furnishing or arranging for the furnishing of
389     any item or service for the treatment of a substance use disorder.
390          (6) Subsection (5) does not prohibit:
391          (a) any discount, payment, waiver of payment, or payment practice not prohibited by
392     42 U.S.C. Sec. 1320a-7(b) or regulations made under 42 U.S.C. Sec. 1320a-7(b);
393          (b) patient referrals within a practice group;
394          (c) payments by a health insurer who reimburses, provides, offers to provide, or
395     administers health, mental health, or substance use disorder goods or services under a health
396     benefit plan;
397          (d) payments to or by a health care provider, practice group, or substance use disorder
398     treatment program that has contracted with a Ĥ→ local mental health authority, a local substance
398a     abuse authority, a ←Ĥ health insurer, a health care purchasing group, or
399     the Medicare or Medicaid program to provide health, mental health, or substance use disorder
400     goods or services under a health benefit plan when the payments are for goods or services
401     under the plan; or
402          (e) payments by a health care provider, practice group, or substance use disorder
403     treatment program to a health, mental health, or substance use disorder information service that
404     provides information upon request and without charge to consumers about providers of health
405     care goods or services to enable consumers to select appropriate providers or facilities, if the
406     information service:
407          (i) does not attempt through standard questions for solicitation of consumer criteria or
408     through any other means to steer or lead a consumer to select or consider selection of a
409     particular health care provider, practice group, or substance use disorder treatment program;
410          (ii) does not provide or represent that the information service provides diagnostic or
411     counseling services or assessments of illness or injury and does not make any promises of cure
412     or guarantees of treatment; Ĥ→ and
413           [(iii) does not provide or arrange for transportation of a patient to or from the location
414     of a health care provider, practice group, or substance use disorder treatment program; and
415          (iv)] (iii) ←Ĥ charges and collects fees from a health care provider, practice group, or
415a     substance
416     use disorder treatment program participating in information services that are set in advance, are
417     consistent with the fair market value for those information services, and are not based on the
418     potential value of a patient or patients to a health care provider, practice group, or substance
419     use disorder treatment program of the goods or services provided by the health care provider,
420     practice group, or substance use disorder treatment program.
421          Section 5. Section 63G-2-305 is amended to read:
422          63G-2-305. Protected records.
423          The following records are protected if properly classified by a governmental entity:
424          (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
425     has provided the governmental entity with the information specified in Section 63G-2-309;
426          (2) commercial information or nonindividual financial information obtained from a
427     person if:
428          (a) disclosure of the information could reasonably be expected to result in unfair
429     competitive injury to the person submitting the information or would impair the ability of the
430     governmental entity to obtain necessary information in the future;
431          (b) the person submitting the information has a greater interest in prohibiting access
432     than the public in obtaining access; and
433          (c) the person submitting the information has provided the governmental entity with
434     the information specified in Section 63G-2-309;
435          (3) commercial or financial information acquired or prepared by a governmental entity
436     to the extent that disclosure would lead to financial speculations in currencies, securities, or
437     commodities that will interfere with a planned transaction by the governmental entity or cause
438     substantial financial injury to the governmental entity or state economy;
439          (4) records, the disclosure of which could cause commercial injury to, or confer a
440     competitive advantage upon a potential or actual competitor of, a commercial project entity as
441     defined in Subsection 11-13-103(4);
442          (5) test questions and answers to be used in future license, certification, registration,
443     employment, or academic examinations;
444          (6) records, the disclosure of which would impair governmental procurement
445     proceedings or give an unfair advantage to any person proposing to enter into a contract or
446     agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
447     Subsection (6) does not restrict the right of a person to have access to, after the contract or
448     grant has been awarded and signed by all parties, a bid, proposal, application, or other
449     information submitted to or by a governmental entity in response to:
450          (a) an invitation for bids;
451          (b) a request for proposals;
452          (c) a request for quotes;
453          (d) a grant; or
454          (e) other similar document;
455          (7) information submitted to or by a governmental entity in response to a request for
456     information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
457     the right of a person to have access to the information, after:
458          (a) a contract directly relating to the subject of the request for information has been
459     awarded and signed by all parties; or
460          (b) (i) a final determination is made not to enter into a contract that relates to the
461     subject of the request for information; and
462          (ii) at least two years have passed after the day on which the request for information is
463     issued;
464          (8) records that would identify real property or the appraisal or estimated value of real
465     or personal property, including intellectual property, under consideration for public acquisition
466     before any rights to the property are acquired unless:
467          (a) public interest in obtaining access to the information is greater than or equal to the
468     governmental entity's need to acquire the property on the best terms possible;
469          (b) the information has already been disclosed to persons not employed by or under a
470     duty of confidentiality to the entity;
471          (c) in the case of records that would identify property, potential sellers of the described
472     property have already learned of the governmental entity's plans to acquire the property;
473          (d) in the case of records that would identify the appraisal or estimated value of
474     property, the potential sellers have already learned of the governmental entity's estimated value
475     of the property; or
476          (e) the property under consideration for public acquisition is a single family residence
477     and the governmental entity seeking to acquire the property has initiated negotiations to acquire
478     the property as required under Section 78B-6-505;
479          (9) records prepared in contemplation of sale, exchange, lease, rental, or other
480     compensated transaction of real or personal property including intellectual property, which, if
481     disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
482     of the subject property, unless:
483          (a) the public interest in access is greater than or equal to the interests in restricting
484     access, including the governmental entity's interest in maximizing the financial benefit of the
485     transaction; or
486          (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
487     the value of the subject property have already been disclosed to persons not employed by or
488     under a duty of confidentiality to the entity;
489          (10) records created or maintained for civil, criminal, or administrative enforcement
490     purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
491     release of the records:
492          (a) reasonably could be expected to interfere with investigations undertaken for
493     enforcement, discipline, licensing, certification, or registration purposes;
494          (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
495     proceedings;
496          (c) would create a danger of depriving a person of a right to a fair trial or impartial
497     hearing;
498          (d) reasonably could be expected to disclose the identity of a source who is not
499     generally known outside of government and, in the case of a record compiled in the course of
500     an investigation, disclose information furnished by a source not generally known outside of
501     government if disclosure would compromise the source; or
502          (e) reasonably could be expected to disclose investigative or audit techniques,
503     procedures, policies, or orders not generally known outside of government if disclosure would
504     interfere with enforcement or audit efforts;
505          (11) records the disclosure of which would jeopardize the life or safety of an
506     individual;
507          (12) records the disclosure of which would jeopardize the security of governmental
508     property, governmental programs, or governmental recordkeeping systems from damage, theft,
509     or other appropriation or use contrary to law or public policy;
510          (13) records that, if disclosed, would jeopardize the security or safety of a correctional
511     facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
512     with the control and supervision of an offender's incarceration, treatment, probation, or parole;
513          (14) records that, if disclosed, would reveal recommendations made to the Board of
514     Pardons and Parole by an employee of or contractor for the Department of Corrections, the
515     Board of Pardons and Parole, or the Department of Human Services that are based on the
516     employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
517     jurisdiction;
518          (15) records and audit workpapers that identify audit, collection, and operational
519     procedures and methods used by the State Tax Commission, if disclosure would interfere with
520     audits or collections;
521          (16) records of a governmental audit agency relating to an ongoing or planned audit
522     until the final audit is released;
523          (17) records that are subject to the attorney client privilege;
524          (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer,
525     employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial,
526     quasi-judicial, or administrative proceeding;
527          (19) (a) (i) personal files of a state legislator, including personal correspondence to or
528     from a member of the Legislature; and
529          (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
530     legislative action or policy may not be classified as protected under this section; and
531          (b) (i) an internal communication that is part of the deliberative process in connection
532     with the preparation of legislation between:
533          (A) members of a legislative body;
534          (B) a member of a legislative body and a member of the legislative body's staff; or
535          (C) members of a legislative body's staff; and
536          (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
537     legislative action or policy may not be classified as protected under this section;
538          (20) (a) records in the custody or control of the Office of Legislative Research and
539     General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
540     legislation or contemplated course of action before the legislator has elected to support the
541     legislation or course of action, or made the legislation or course of action public; and
542          (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
543     Office of Legislative Research and General Counsel is a public document unless a legislator
544     asks that the records requesting the legislation be maintained as protected records until such
545     time as the legislator elects to make the legislation or course of action public;
546          (21) research requests from legislators to the Office of Legislative Research and
547     General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
548     in response to these requests;
549          (22) drafts, unless otherwise classified as public;
550          (23) records concerning a governmental entity's strategy about:
551          (a) collective bargaining; or
552          (b) imminent or pending litigation;
553          (24) records of investigations of loss occurrences and analyses of loss occurrences that
554     may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
555     Uninsured Employers' Fund, or similar divisions in other governmental entities;
556          (25) records, other than personnel evaluations, that contain a personal recommendation
557     concerning an individual if disclosure would constitute a clearly unwarranted invasion of
558     personal privacy, or disclosure is not in the public interest;
559          (26) records that reveal the location of historic, prehistoric, paleontological, or
560     biological resources that if known would jeopardize the security of those resources or of
561     valuable historic, scientific, educational, or cultural information;
562          (27) records of independent state agencies if the disclosure of the records would
563     conflict with the fiduciary obligations of the agency;
564          (28) records of an institution within the state system of higher education defined in
565     Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
566     retention decisions, and promotions, which could be properly discussed in a meeting closed in
567     accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
568     the final decisions about tenure, appointments, retention, promotions, or those students
569     admitted, may not be classified as protected under this section;
570          (29) records of the governor's office, including budget recommendations, legislative
571     proposals, and policy statements, that if disclosed would reveal the governor's contemplated
572     policies or contemplated courses of action before the governor has implemented or rejected
573     those policies or courses of action or made them public;
574          (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
575     revenue estimates, and fiscal notes of proposed legislation before issuance of the final
576     recommendations in these areas;
577          (31) records provided by the United States or by a government entity outside the state
578     that are given to the governmental entity with a requirement that they be managed as protected
579     records if the providing entity certifies that the record would not be subject to public disclosure
580     if retained by it;
581          (32) transcripts, minutes, or reports of the closed portion of a meeting of a public body
582     except as provided in Section 52-4-206;
583          (33) records that would reveal the contents of settlement negotiations but not including
584     final settlements or empirical data to the extent that they are not otherwise exempt from
585     disclosure;
586          (34) memoranda prepared by staff and used in the decision-making process by an
587     administrative law judge, a member of the Board of Pardons and Parole, or a member of any
588     other body charged by law with performing a quasi-judicial function;
589          (35) records that would reveal negotiations regarding assistance or incentives offered
590     by or requested from a governmental entity for the purpose of encouraging a person to expand
591     or locate a business in Utah, but only if disclosure would result in actual economic harm to the
592     person or place the governmental entity at a competitive disadvantage, but this section may not
593     be used to restrict access to a record evidencing a final contract;
594          (36) materials to which access must be limited for purposes of securing or maintaining
595     the governmental entity's proprietary protection of intellectual property rights including patents,
596     copyrights, and trade secrets;
597          (37) the name of a donor or a prospective donor to a governmental entity, including an
598     institution within the state system of higher education defined in Section 53B-1-102, and other
599     information concerning the donation that could reasonably be expected to reveal the identity of
600     the donor, provided that:
601          (a) the donor requests anonymity in writing;
602          (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
603     classified protected by the governmental entity under this Subsection (37); and
604          (c) except for an institution within the state system of higher education defined in
605     Section 53B-1-102, the governmental unit to which the donation is made is primarily engaged
606     in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
607     over the donor, a member of the donor's immediate family, or any entity owned or controlled
608     by the donor or the donor's immediate family;
609          (38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and
610     73-18-13;
611          (39) a notification of workers' compensation insurance coverage described in Section
612     34A-2-205;
613          (40) (a) the following records of an institution within the state system of higher
614     education defined in Section 53B-1-102, which have been developed, discovered, disclosed to,
615     or received by or on behalf of faculty, staff, employees, or students of the institution:
616          (i) unpublished lecture notes;
617          (ii) unpublished notes, data, and information:
618          (A) relating to research; and
619          (B) of:
620          (I) the institution within the state system of higher education defined in Section
621     53B-1-102; or
622          (II) a sponsor of sponsored research;
623          (iii) unpublished manuscripts;
624          (iv) creative works in process;
625          (v) scholarly correspondence; and
626          (vi) confidential information contained in research proposals;
627          (b) Subsection (40)(a) may not be construed to prohibit disclosure of public
628     information required pursuant to Subsection 53B-16-302(2)(a) or (b); and
629          (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
630          (41) (a) records in the custody or control of the Office of Legislative Auditor General
631     that would reveal the name of a particular legislator who requests a legislative audit prior to the
632     date that audit is completed and made public; and
633          (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
634     Office of the Legislative Auditor General is a public document unless the legislator asks that
635     the records in the custody or control of the Office of Legislative Auditor General that would
636     reveal the name of a particular legislator who requests a legislative audit be maintained as
637     protected records until the audit is completed and made public;
638          (42) records that provide detail as to the location of an explosive, including a map or
639     other document that indicates the location of:
640          (a) a production facility; or
641          (b) a magazine;
642          (43) information:
643          (a) contained in the statewide database of the Division of Aging and Adult Services
644     created by Section 62A-3-311.1; or
645          (b) received or maintained in relation to the Identity Theft Reporting Information
646     System (IRIS) established under Section 67-5-22;
647          (44) information contained in the Management Information System and Licensing
648     Information System described in Title 62A, Chapter 4a, Child and Family Services;
649          (45) information regarding National Guard operations or activities in support of the
650     National Guard's federal mission;
651          (46) records provided by any pawn or secondhand business to a law enforcement
652     agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
653     Secondhand Merchandise Transaction Information Act;
654          (47) information regarding food security, risk, and vulnerability assessments performed
655     by the Department of Agriculture and Food;
656          (48) except to the extent that the record is exempt from this chapter pursuant to Section
657     63G-2-106, records related to an emergency plan or program, a copy of which is provided to or
658     prepared or maintained by the Division of Emergency Management, and the disclosure of
659     which would jeopardize:
660          (a) the safety of the general public; or
661          (b) the security of:
662          (i) governmental property;
663          (ii) governmental programs; or
664          (iii) the property of a private person who provides the Division of Emergency
665     Management information;
666          (49) records of the Department of Agriculture and Food that provides for the
667     identification, tracing, or control of livestock diseases, including any program established under
668     Title 4, Chapter 24, Utah Livestock Brand and Anti-Theft Act, or Title 4, Chapter 31, Control
669     of Animal Disease;
670          (50) as provided in Section 26-39-501:
671          (a) information or records held by the Department of Health related to a complaint
672     regarding a child care program or residential child care which the department is unable to
673     substantiate; and
674          (b) information or records related to a complaint received by the Department of Health
675     from an anonymous complainant regarding a child care program or residential child care;
676          (51) unless otherwise classified as public under Section 63G-2-301 and except as
677     provided under Section 41-1a-116, an individual's home address, home telephone number, or
678     personal mobile phone number, if:
679          (a) the individual is required to provide the information in order to comply with a law,
680     ordinance, rule, or order of a government entity; and
681          (b) the subject of the record has a reasonable expectation that this information will be
682     kept confidential due to:
683          (i) the nature of the law, ordinance, rule, or order; and
684          (ii) the individual complying with the law, ordinance, rule, or order;
685          (52) the name, home address, work addresses, and telephone numbers of an individual
686     that is engaged in, or that provides goods or services for, medical or scientific research that is:
687          (a) conducted within the state system of higher education, as defined in Section
688     53B-1-102; and
689          (b) conducted using animals;
690          (53) an initial proposal under Title 63N, Chapter 13, Part 2, Government Procurement
691     Private Proposal Program, to the extent not made public by rules made under that chapter;
692          (54) in accordance with Section 78A-12-203, any record of the Judicial Performance
693     Evaluation Commission concerning an individual commissioner's vote on whether or not to
694     recommend that the voters retain a judge including information disclosed under Subsection
695     78A-12-203(5)(e);
696          (55) information collected and a report prepared by the Judicial Performance
697     Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
698     12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
699     the information or report;
700          (56) records contained in the Management Information System created in Section
701     62A-4a-1003;
702          (57) records provided or received by the Public Lands Policy Coordinating Office in
703     furtherance of any contract or other agreement made in accordance with Section 63J-4-603;
704          (58) information requested by and provided to the 911 Division under Section
705     63H-7a-302;
706          (59) in accordance with Section 73-10-33:
707          (a) a management plan for a water conveyance facility in the possession of the Division
708     of Water Resources or the Board of Water Resources; or
709          (b) an outline of an emergency response plan in possession of the state or a county or
710     municipality;
711          (60) the following records in the custody or control of the Office of Inspector General
712     of Medicaid Services, created in Section 63A-13-201:
713          (a) records that would disclose information relating to allegations of personal
714     misconduct, gross mismanagement, or illegal activity of a person if the information or
715     allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
716     through other documents or evidence, and the records relating to the allegation are not relied
717     upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
718     report or final audit report;
719          (b) records and audit workpapers to the extent they would disclose the identity of a
720     person who, during the course of an investigation or audit, communicated the existence of any
721     Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
722     regulation adopted under the laws of this state, a political subdivision of the state, or any
723     recognized entity of the United States, if the information was disclosed on the condition that
724     the identity of the person be protected;
725          (c) before the time that an investigation or audit is completed and the final
726     investigation or final audit report is released, records or drafts circulated to a person who is not
727     an employee or head of a governmental entity for the person's response or information;
728          (d) records that would disclose an outline or part of any investigation, audit survey
729     plan, or audit program; or
730          (e) requests for an investigation or audit, if disclosure would risk circumvention of an
731     investigation or audit;
732          (61) records that reveal methods used by the Office of Inspector General of Medicaid
733     Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or
734     abuse;
735          (62) information provided to the Department of Health or the Division of Occupational
736     and Professional Licensing under Subsection 58-68-304(3) or (4);
737          (63) a record described in Section 63G-12-210;
738          (64) captured plate data that is obtained through an automatic license plate reader
739     system used by a governmental entity as authorized in Section 41-6a-2003;
740          (65) any record in the custody of the Utah Office for Victims of Crime relating to a
741     victim, including:
742          (a) a victim's application or request for benefits;
743          (b) a victim's receipt or denial of benefits; and
744          (c) any administrative notes or records made or created for the purpose of, or used to,
745     evaluate or communicate a victim's eligibility for or denial of benefits from the Crime Victim
746     Reparations Fund;
747          (66) an audio or video recording created by a body-worn camera, as that term is
748     defined in Section 77-7a-103, that records sound or images inside a hospital or health care
749     facility as those terms are defined in Section 78B-3-403, inside a clinic of a health care
750     provider, as that term is defined in Section 78B-3-403, or inside a human service program as
751     that term is defined in [Subsection 62A-2-101(19)(a)(vi)] Section 62A-2-101, except for
752     recordings that:
753          (a) depict the commission of an alleged crime;
754          (b) record any encounter between a law enforcement officer and a person that results in
755     death or bodily injury, or includes an instance when an officer fires a weapon;
756          (c) record any encounter that is the subject of a complaint or a legal proceeding against
757     a law enforcement officer or law enforcement agency;
758          (d) contain an officer involved critical incident as defined in Subsection
759     76-2-408(1)(d); or
760          (e) have been requested for reclassification as a public record by a subject or
761     authorized agent of a subject featured in the recording; and
762          (67) a record pertaining to the search process for a president of an institution of higher
763     education described in Section 53B-2-102, except for application materials for a publicly
764     announced finalist.
765          Section 6. Section 77-7a-104 is amended to read:
766          77-7a-104. Activation and use of body-worn cameras.
767          (1) An officer using a body-worn camera shall verify that the equipment is properly
768     functioning as is reasonably within the officer's ability.
769          (2) An officer shall report any malfunctioning equipment to the officer's supervisor if:
770          (a) the body-worn camera issued to the officer is not functioning properly upon initial
771     inspection; or
772          (b) an officer determines that the officer's body-worn camera is not functioning
773     properly at any time while the officer is on duty.
774          (3) An officer shall wear the body-worn camera so that it is clearly visible to the person
775     being recorded.
776          (4) An officer shall activate the body-worn camera prior to any law enforcement
777     encounter, or as soon as reasonably possible.
778          (5) An officer shall record in an uninterrupted manner until after the conclusion of a
779     law enforcement encounter, except as an interruption of a recording is allowed under this
780     section.
781          (6) When going on duty and off duty, an officer who is issued a body-worn camera
782     shall record the officer's name, identification number, and the current time and date, unless the
783     information is already available due to the functionality of the body-worn camera.
784          (7) If a body-worn camera was present during a law enforcement encounter, the officer
785     shall document the presence of the body-worn camera in any report or other official record of a
786     contact.
787          (8) When a body-worn camera has been activated, the officer may not deactivate the
788     body-worn camera until the officer's direct participation in the law enforcement encounter is
789     complete, except as provided in Subsection (9).
790          (9) An officer may deactivate a body-worn camera:
791          (a) to consult with a supervisor or another officer;
792          (b) during a significant period of inactivity; and
793          (c) during a conversation with a sensitive victim of crime, a witness of a crime, or an
794     individual who wishes to report or discuss criminal activity if:
795          (i) the individual who is the subject of the recording requests that the officer deactivate
796     the officer's body-worn camera; and
797          (ii) the officer believes that the value of the information outweighs the value of the
798     potential recording and records the request by the individual to deactivate the body-worn
799     camera.
800          (10) If an officer deactivates a body-worn camera, the officer shall document the
801     reason for deactivating a body-worn camera in a written report.
802          (11) (a) For purposes of this Subsection (11):
803          (i) "Health care facility" means the same as that term is defined in Section 78B-3-403.
804          (ii) "Health care provider" means the same as that term is defined in Section
805     78B-3-403.
806          (iii) "Hospital" means the same as that term is defined in Section 78B-3-403.
807          (iv) "Human service program" means the same as that term is defined in [Subsection
808     62A-2-101(20)(a)(vi)] Section 62A-2-101.
809          (b) An officer may not activate a body-worn camera in a hospital, health care facility,
810     human service program, or the clinic of a health care provider, except during a law
811     enforcement encounter, and with notice under Section 77-7a-105.




Legislative Review Note
Office of Legislative Research and General Counsel