1     
CONGREGATE CARE PROGRAM AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marsha Judkins

5     
Senate Sponsor: Michael K. McKell

6     

7     LONG TITLE
8     General Description:
9          This bill regulates congregate care programs.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires a congregate care program to maintain certain information for a child
14     whose parent or guardian:
15               •     does not live in the state; and
16               •     contracts with the congregate care program;
17          ▸     requires a congregate care program to assist the state in locating and returning a
18     child who leaves the program;
19          ▸     establishes a penalty for a congregate care program that fails to comply with the
20     provisions of this bill; and
21          ▸     makes technical and conforming changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:

28          62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last
29     amended by Coordination Clause, Laws of Utah 2019, Chapter 193
30          62A-2-112, as last amended by Laws of Utah 2018, Chapter 203
31          62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last
32     amended by Coordination Clause, Laws of Utah 2020, Chapter 225
33     ENACTS:
34          62A-2-123, Utah Code Annotated 1953
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 62A-2-101 is amended to read:
38          62A-2-101. Definitions.
39          As used in this chapter:
40          (1) "Adult day care" means nonresidential care and supervision:
41          (a) for three or more adults for at least four but less than 24 hours a day; and
42          (b) that meets the needs of functionally impaired adults through a comprehensive
43     program that provides a variety of health, social, recreational, and related support services in a
44     protective setting.
45          (2) "Applicant" means a person who applies for an initial license or a license renewal
46     under this chapter.
47          (3) (a) "Associated with the licensee" means that an individual is:
48          (i) affiliated with a licensee as an owner, director, member of the governing body,
49     employee, agent, provider of care, department contractor, or volunteer; or
50          (ii) applying to become affiliated with a licensee in a capacity described in Subsection
51     (3)(a)(i).
52          (b) "Associated with the licensee" does not include:
53          (i) service on the following bodies, unless that service includes direct access to a child
54     or a vulnerable adult:
55          (A) a local mental health authority described in Section 17-43-301;
56          (B) a local substance abuse authority described in Section 17-43-201; or
57          (C) a board of an organization operating under a contract to provide mental health or
58     substance abuse programs, or services for the local mental health authority or substance abuse

59     authority; or
60          (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
61     at all times.
62          (4) (a) "Boarding school" means a private school that:
63          (i) uses a regionally accredited education program;
64          (ii) provides a residence to the school's students:
65          (A) for the purpose of enabling the school's students to attend classes at the school; and
66          (B) as an ancillary service to educating the students at the school;
67          (iii) has the primary purpose of providing the school's students with an education, as
68     defined in Subsection (4)(b)(i); and
69          (iv) (A) does not provide the treatment or services described in Subsection [(33)(a)]
70     (37)(a); or
71          (B) provides the treatment or services described in Subsection [(33)(a)] (37)(a) on a
72     limited basis, as described in Subsection (4)(b)(ii).
73          (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for
74     one or more of grades kindergarten through 12th grade.
75          (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or
76     services described in Subsection [(33)(a)] (37)(a) on a limited basis if:
77          (A) the treatment or services described in Subsection [(33)(a)] (37)(a) are provided
78     only as an incidental service to a student; and
79          (B) the school does not:
80          (I) specifically solicit a student for the purpose of providing the treatment or services
81     described in Subsection [(33)(a)] (37)(a); or
82          (II) have a primary purpose of providing the treatment or services described in
83     Subsection [(33)(a)] (37)(a).
84          (c) "Boarding school" does not include a therapeutic school.
85          (5) "Child" means [a person] an individual under 18 years [of age] old.
86          (6) "Child placing" means receiving, accepting, or providing custody or care for any
87     child, temporarily or permanently, for the purpose of:
88          (a) finding a person to adopt the child;
89          (b) placing the child in a home for adoption; or

90          (c) foster home placement.
91          (7) "Child-placing agency" means a person that engages in child placing.
92          (8) "Client" means an individual who receives or has received services from a licensee.
93          (9) "Congregate care program" means any of the following that provide services to a
94     child:
95          (a) an outdoor youth program;
96          (b) a residential support program;
97          (c) a residential treatment program; or
98          (d) a therapeutic school.
99          [(9)] (10) "Day treatment" means specialized treatment that is provided to:
100          (a) a client less than 24 hours a day; and
101          (b) four or more persons who:
102          (i) are unrelated to the owner or provider; and
103          (ii) have emotional, psychological, developmental, physical, or behavioral
104     dysfunctions, impairments, or chemical dependencies.
105          [(10)] (11) "Department" means the Department of Human Services.
106          [(11)] (12) "Department contractor" means an individual who:
107          (a) provides services under a contract with the department; and
108          (b) due to the contract with the department, has or will likely have direct access to a
109     child or vulnerable adult.
110          [(12)] (13) "Direct access" means that an individual has, or likely will have:
111          (a) contact with or access to a child or vulnerable adult that provides the individual
112     with an opportunity for personal communication or touch; or
113          (b) an opportunity to view medical, financial, or other confidential personal identifying
114     information of the child, the child's parents or legal guardians, or the vulnerable adult.
115          [(13)] (14) "Directly supervised" means that an individual is being supervised under
116     the uninterrupted visual and auditory surveillance of another individual who has a current
117     background screening approval issued by the office.
118          [(14)] (15) "Director" means the director of the Office of Licensing.
119          [(15)] (16) "Domestic violence" means the same as that term is defined in Section
120     77-36-1.

121          [(16)] (17) "Domestic violence treatment program" means a nonresidential program
122     designed to provide psychological treatment and educational services to perpetrators and
123     victims of domestic violence.
124          [(17)] (18) "Elder adult" means a person 65 years [of age] old or older.
125          [(18)] (19) "Executive director" means the executive director of the department.
126          [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office
127     of Licensing for the full-time substitute care of a child.
128          [(20)] (21) "Health benefit plan" means the same as that term is defined in Section
129     31A-1-301.
130          [(21)] (22) "Health care provider" means the same as that term is defined in Section
131     78B-3-403.
132          [(22)] (23) "Health insurer" means the same as that term is defined in Section
133     31A-22-615.5.
134          [(23)] (24) (a) "Human services program" means [a]:
135          (i) a foster home;
136          (ii) a therapeutic school;
137          (iii) a youth program;
138          (iv) an outdoor youth program;
139          (v) a residential treatment program;
140          (vi) a residential support program;
141          [(iv)] (vii) a resource family home;
142          [(v)] (viii) a recovery residence; or
143          [(vi)] (ix) a facility or program that provides:
144          [(A) secure treatment;]
145          [(B) inpatient treatment;]
146          [(C) residential treatment;]
147          [(D) residential support;]
148          [(E)] (A) adult day care;
149          [(F)] (B) day treatment;
150          [(G)] (C) outpatient treatment;
151          [(H)] (D) domestic violence treatment;

152          [(I)] (E) child-placing services;
153          [(J)] (F) social detoxification; or
154          [(K)] (G) any other human services that are required by contract with the department to
155     be licensed with the department.
156          (b) "Human services program" does not include:
157          (i) a boarding school; or
158          (ii) a residential, vocational and life skills program, as defined in Section 13-53-102.
159          [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec.
160     1903.
161          [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec.
162     1151.
163          [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec.
164     1903.
165          (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or
166     care for an individual who:
167          (a) cannot live independently or in a less restrictive environment; and
168          (b) requires, without the individual's consent or control, the use of locked doors to care
169     for the individual.
170          [(27)] (29) "Licensee" means an individual or a human services program licensed by
171     the office.
172          [(28)] (30) "Local government" means a city, town, metro township, or county.
173          [(29)] (31) "Minor" has the same meaning as "child."
174          [(30)] (32) "Office" means the Office of Licensing within the Department of Human
175     Services.
176          (33) "Outdoor youth program" means a program that provides:
177          (a) services to a child that has:
178          (i) a chemical dependency; or
179          (ii) a dysfunction or impairment that is emotional, psychological, developmental,
180     physical, or behavioral;
181          (b) a 24-hour outdoor group living environment; and
182          (c) regular therapy, including group, individual, or supportive family therapy.

183          [(31)] (34) "Outpatient treatment" means individual, family, or group therapy or
184     counseling designed to improve and enhance social or psychological functioning for those
185     whose physical and emotional status allows them to continue functioning in their usual living
186     environment.
187          [(32)] (35) "Practice group" or "group practice" means two or more health care
188     providers legally organized as a partnership, professional corporation, or similar association,
189     for which:
190          (a) substantially all of the services of the health care providers who are members of the
191     group are provided through the group and are billed in the name of the group and amounts
192     received are treated as receipts of the group; and
193          (b) the overhead expenses of and the income from the practice are distributed in
194     accordance with methods previously determined by members of the group.
195          (36) "Private-placement child" means a child whose parent or guardian enters into a
196     contract with a congregate care program for the child to receive services.
197          [(33)] (37) (a) "Recovery residence" means a home, residence, or facility that meets at
198     least two of the following requirements:
199          (i) provides a supervised living environment for individuals recovering from a
200     substance use disorder;
201          (ii) provides a living environment in which more than half of the individuals in the
202     residence are recovering from a substance use disorder;
203          (iii) provides or arranges for residents to receive services related to their recovery from
204     a substance use disorder, either on or off site;
205          (iv) is held out as a living environment in which individuals recovering from substance
206     abuse disorders live together to encourage continued sobriety; or
207          (v) (A) receives public funding; or
208          (B) is run as a business venture, either for-profit or not-for-profit.
209          (b) "Recovery residence" does not mean:
210          (i) a residential treatment program;
211          (ii) residential support program; or
212          (iii) a home, residence, or facility, in which:
213          (A) residents, by their majority vote, establish, implement, and enforce policies

214     governing the living environment, including the manner in which applications for residence are
215     approved and the manner in which residents are expelled;
216          (B) residents equitably share rent and housing-related expenses; and
217          (C) a landlord, owner, or operator does not receive compensation, other than fair
218     market rental income, for establishing, implementing, or enforcing policies governing the
219     living environment.
220          [(34)] (38) "Regular business hours" means:
221          (a) the hours during which services of any kind are provided to a client; or
222          (b) the hours during which a client is present at the facility of a licensee.
223          [(35)] (39) (a) "Residential support program" means [arranging for or providing] a
224     program that arranges for or provides the necessities of life as a protective service to
225     individuals or families who have a disability or who are experiencing a dislocation or
226     emergency that prevents them from providing these services for themselves or their families.
227          (b) "Residential support program" includes [providing] a program that provides a
228     supervised living environment for [persons] individuals with dysfunctions or impairments that
229     are:
230          (i) emotional;
231          (ii) psychological;
232          (iii) developmental; or
233          (iv) behavioral.
234          (c) Treatment is not a necessary component of a residential support program.
235          (d) "Residential support program" does not include:
236          (i) a recovery residence; or
237          (ii) residential services that are performed:
238          (A) exclusively under contract with the Division of Services for People with
239     Disabilities; or
240          (B) in a facility that serves fewer than four individuals.
241          [(36)] (40) (a) "Residential treatment" means a 24-hour group living environment for
242     four or more individuals unrelated to the owner or provider that offers room or board and
243     specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or
244     habilitation services for persons with emotional, psychological, developmental, or behavioral

245     dysfunctions, impairments, or chemical dependencies.
246          (b) "Residential treatment" does not include a:
247          (i) boarding school;
248          (ii) foster home; or
249          (iii) recovery residence.
250          [(37)] (41) "Residential treatment program" means a [human services program]
251     program or facility that provides:
252          (a) residential treatment; or
253          (b) intermediate secure treatment.
254          [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for
255     persons whose current functioning is such that they cannot live independently or in a less
256     restrictive environment.]
257          [(b) "Secure treatment" differs from residential treatment to the extent that it requires
258     intensive supervision, locked doors, and other security measures that are imposed on residents
259     with neither their consent nor control.]
260          [(39)] (42) "Social detoxification" means short-term residential services for persons
261     who are experiencing or have recently experienced drug or alcohol intoxication, that are
262     provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care
263     Facility Licensing and Inspection Act, and that include:
264          (a) room and board for persons who are unrelated to the owner or manager of the
265     facility;
266          (b) specialized rehabilitation to acquire sobriety; and
267          (c) aftercare services.
268          [(40)] (43) "Substance abuse disorder" or "substance use disorder" mean the same as
269     "substance use disorder" is defined in Section 62A-15-1202.
270          [(41)] (44) "Substance abuse treatment program" or "substance use disorder treatment
271     program" means a program:
272          (a) designed to provide:
273          (i) specialized drug or alcohol treatment;
274          (ii) rehabilitation; or
275          (iii) habilitation services; and

276          (b) that provides the treatment or services described in Subsection [(41)(a)] (44)(a) to
277     persons with:
278          (i) a diagnosed substance use disorder; or
279          (ii) chemical dependency disorder.
280          [(42)] (45) "Therapeutic school" means a residential group living facility:
281          (a) for four or more individuals that are not related to:
282          (i) the owner of the facility; or
283          (ii) the primary service provider of the facility;
284          (b) that serves students who have a history of failing to function:
285          (i) at home;
286          (ii) in a public school; or
287          (iii) in a nonresidential private school; and
288          (c) that offers:
289          (i) room and board; and
290          (ii) an academic education integrated with:
291          (A) specialized structure and supervision; or
292          (B) services or treatment related to:
293          (I) a disability;
294          (II) emotional development;
295          (III) behavioral development;
296          (IV) familial development; or
297          (V) social development.
298          [(43)] (46) "Unrelated persons" means persons other than parents, legal guardians,
299     grandparents, brothers, sisters, uncles, or aunts.
300          [(44)] (47) "Vulnerable adult" means an elder adult or an adult who has a temporary or
301     permanent mental or physical impairment that substantially affects the person's ability to:
302          (a) provide personal protection;
303          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
304          (c) obtain services necessary for health, safety, or welfare;
305          (d) carry out the activities of daily living;
306          (e) manage the adult's own resources; or

307          (f) comprehend the nature and consequences of remaining in a situation of abuse,
308     neglect, or exploitation.
309          [(45)] (48) (a) "Youth program" means a nonresidential program designed to provide
310     behavioral, substance abuse, or mental health services to minors that:
311          (i) serves adjudicated or nonadjudicated youth;
312          (ii) charges a fee for its services;
313          (iii) may [or may not] provide host homes or other arrangements for overnight
314     accommodation of the youth;
315          (iv) may [or may not] provide all or part of its services in the outdoors;
316          (v) may [or may not] limit or censor access to parents or guardians; and
317          (vi) prohibits or restricts a minor's ability to leave the program at any time of the
318     minor's own free will.
319          (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
320     Scouts, 4-H, and other such organizations.
321          Section 2. Section 62A-2-112 is amended to read:
322          62A-2-112. Violations -- Penalties.
323          (1) As used in this section, "health care provider" means a person licensed to provide
324     health care services under this chapter.
325          (2) The office may deny, place conditions on, suspend, or revoke a human services
326     license, if it finds, related to the human services program:
327          (a) that there has been a failure to comply with the rules established under this chapter;
328          (b) evidence of aiding, abetting, or permitting the commission of any illegal act; or
329          (c) evidence of conduct adverse to the standards required to provide services and
330     promote public trust, including aiding, abetting, or permitting the commission of abuse,
331     neglect, exploitation, harm, mistreatment, or fraud.
332          (3) The office may restrict or prohibit new admissions to a human services program, if
333     it finds:
334          (a) that there has been a failure to comply with rules established under this chapter;
335          (b) evidence of aiding, abetting, or permitting the commission of any illegal act; or
336          (c) evidence of conduct adverse to the standards required to provide services and
337     promote public trust, including aiding, abetting, or permitting the commission of abuse,

338     neglect, exploitation, harm, mistreatment, or fraud.
339          (4) (a) The office may assess a fine of up to $500 per violation against a health care
340     provider that violates Section 31A-26-313.
341          (b) The office shall waive the fine described in Subsection (4)(a) if:
342          (i) the health care provider demonstrates to the office that the health care provider
343     mitigated and reversed any damage to the insured caused by the health care provider or third
344     party's violation; or
345          (ii) the insured does not pay the full amount due on the bill that is the subject of the
346     violation, including any interest, fees, costs, and expenses, within 120 days after the day on
347     which the health care provider or third party makes a report to a credit bureau or takes an action
348     in violation of Section 31A-26-313.
349          (5) If a congregate care program knowingly fails to comply with the provisions of
350     Section 62A-2-123, the office may impose a penalty on the congregate care program that is less
351     than or equal to the cost of care incurred by the state for a private-placement child described in
352     Subsection 62A-2-123(3).
353          (6) The office shall make rules for calculating the cost of care described in Subsection
354     (5) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
355          Section 3. Section 62A-2-120 is amended to read:
356          62A-2-120. Background check -- Direct access to children or vulnerable adults.
357          (1) As used in this section:
358          (a) (i) "Applicant" means:
359          (A) the same as that term is defined in Section 62A-2-101;
360          (B) an individual who is associated with a licensee and has or will likely have direct
361     access to a child or a vulnerable adult;
362          (C) an individual who provides respite care to a foster parent or an adoptive parent on
363     more than one occasion;
364          (D) a department contractor;
365          (E) a guardian submitting an application on behalf of an individual, other than the child
366     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
367     older and resides in a home, that is licensed or certified by the office, with the child or
368     vulnerable adult who is receiving services; or

369          (F) a guardian submitting an application on behalf of an individual, other than the child
370     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
371     older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
372          (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
373     of the Division of Child and Family Services or the Division of Juvenile Justice Services.
374          (b) "Application" means a background screening application to the office.
375          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
376     Public Safety, created in Section 53-10-201.
377          (d) "Incidental care" means occasional care, not in excess of five hours per week and
378     never overnight, for a foster child.
379          (e) "Personal identifying information" means:
380          (i) current name, former names, nicknames, and aliases;
381          (ii) date of birth;
382          (iii) physical address and email address;
383          (iv) telephone number;
384          (v) driver license or other government-issued identification;
385          (vi) social security number;
386          (vii) only for applicants who are 18 years of age or older, fingerprints, in a form
387     specified by the office; and
388          (viii) other information specified by the office by rule made in accordance with Title
389     63G, Chapter 3, Utah Administrative Rulemaking Act.
390          (2) (a) Except as provided in Subsection (13), an applicant or a representative shall
391     submit the following to the office:
392          (i) personal identifying information;
393          (ii) a fee established by the office under Section 63J-1-504; and
394          (iii) a disclosure form, specified by the office, for consent for:
395          (A) an initial background check upon submission of the information described under
396     this Subsection (2)(a);
397          (B) ongoing monitoring of fingerprints and registries until no longer associated with a
398     licensee for 90 days;
399          (C) a background check when the office determines that reasonable cause exists; and

400          (D) retention of personal identifying information, including fingerprints, for
401     monitoring and notification as described in Subsections (3)(d) and (4).
402          (b) In addition to the requirements described in Subsection (2)(a), if an applicant
403     resided outside of the United States and its territories during the five years immediately
404     preceding the day on which the information described in Subsection (2)(a) is submitted to the
405     office, the office may require the applicant to submit documentation establishing whether the
406     applicant was convicted of a crime during the time that the applicant resided outside of the
407     United States or its territories.
408          (3) The office:
409          (a) shall perform the following duties as part of a background check of an applicant:
410          (i) check state and regional criminal background databases for the applicant's criminal
411     history by:
412          (A) submitting personal identifying information to the bureau for a search; or
413          (B) using the applicant's personal identifying information to search state and regional
414     criminal background databases as authorized under Section 53-10-108;
415          (ii) submit the applicant's personal identifying information and fingerprints to the
416     bureau for a criminal history search of applicable national criminal background databases;
417          (iii) search the Department of Human Services, Division of Child and Family Services'
418     Licensing Information System described in Section 62A-4a-1006;
419          (iv) search the Department of Human Services, Division of Aging and Adult Services'
420     vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
421          (v) search the juvenile court records for substantiated findings of severe child abuse or
422     neglect described in Section 78A-6-323; and
423          (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
424     under Section 78A-6-209;
425          (b) shall conduct a background check of an applicant for an initial background check
426     upon submission of the information described under Subsection (2)(a);
427          (c) may conduct all or portions of a background check of an applicant, as provided by
428     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
429     Rulemaking Act:
430          (i) for an annual renewal; or

431          (ii) when the office determines that reasonable cause exists;
432          (d) may submit an applicant's personal identifying information, including fingerprints,
433     to the bureau for checking, retaining, and monitoring of state and national criminal background
434     databases and for notifying the office of new criminal activity associated with the applicant;
435          (e) shall track the status of an approved applicant under this section to ensure that an
436     approved applicant is not required to duplicate the submission of the applicant's fingerprints if
437     the applicant applies for:
438          (i) more than one license;
439          (ii) direct access to a child or a vulnerable adult in more than one human services
440     program; or
441          (iii) direct access to a child or a vulnerable adult under a contract with the department;
442          (f) shall track the status of each license and each individual with direct access to a child
443     or a vulnerable adult and notify the bureau within 90 days after the day on which the license
444     expires or the individual's direct access to a child or a vulnerable adult ceases;
445          (g) shall adopt measures to strictly limit access to personal identifying information
446     solely to the individuals responsible for processing and entering the applications for
447     background checks and to protect the security of the personal identifying information the office
448     reviews under this Subsection (3);
449          (h) as necessary to comply with the federal requirement to check a state's child abuse
450     and neglect registry regarding any individual working in a congregate care [setting that serves
451     children] program, shall:
452          (i) search the Department of Human Services, Division of Child and Family Services'
453     Licensing Information System described in Section 62A-4a-1006; and
454          (ii) require the child abuse and neglect registry be checked in each state where an
455     applicant resided at any time during the five years immediately preceding the day on which the
456     applicant submits the information described in Subsection (2)(a) to the office; and
457          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
458     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
459     checks.
460          (4) (a) With the personal identifying information the office submits to the bureau under
461     Subsection (3), the bureau shall check against state and regional criminal background databases

462     for the applicant's criminal history.
463          (b) With the personal identifying information and fingerprints the office submits to the
464     bureau under Subsection (3), the bureau shall check against national criminal background
465     databases for the applicant's criminal history.
466          (c) Upon direction from the office, and with the personal identifying information and
467     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
468          (i) maintain a separate file of the fingerprints for search by future submissions to the
469     local and regional criminal records databases, including latent prints; and
470          (ii) monitor state and regional criminal background databases and identify criminal
471     activity associated with the applicant.
472          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
473     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
474     Investigation Next Generation Identification System for the purpose of:
475          (i) being searched by future submissions to the national criminal records databases,
476     including the Federal Bureau of Investigation Next Generation Identification System and latent
477     prints; and
478          (ii) monitoring national criminal background databases and identifying criminal
479     activity associated with the applicant.
480          (e) The Bureau shall notify and release to the office all information of criminal activity
481     associated with the applicant.
482          (f) Upon notice from the office that a license has expired or an individual's direct
483     access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
484          (i) discard and destroy any retained fingerprints; and
485          (ii) notify the Federal Bureau of Investigation when the license has expired or an
486     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
487     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
488     Investigation Next Generation Identification System.
489          (5) (a) After conducting the background check described in Subsections (3) and (4), the
490     office shall deny an application to an applicant who, within three years before the day on which
491     the applicant submits information to the office under Subsection (2) for a background check,
492     has been convicted of any of the following, regardless of whether the offense is a felony, a

493     misdemeanor, or an infraction:
494          (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
495     animals, or bestiality;
496          (ii) a violation of any pornography law, including sexual exploitation of a minor;
497          (iii) prostitution;
498          (iv) an offense included in:
499          (A) Title 76, Chapter 5, Offenses Against the Person;
500          (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
501          (C) Title 76, Chapter 7, Offenses Against the Family;
502          (v) aggravated arson, as described in Section 76-6-103;
503          (vi) aggravated burglary, as described in Section 76-6-203;
504          (vii) aggravated robbery, as described in Section 76-6-302;
505          (viii) identity fraud crime, as described in Section 76-6-1102; or
506          (ix) a felony or misdemeanor offense committed outside of the state that, if committed
507     in the state, would constitute a violation of an offense described in Subsections (5)(a)(i)
508     through (viii).
509          (b) If the office denies an application to an applicant based on a conviction described in
510     Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
511     Subsection (6).
512          (c) If the applicant will be working in a program serving only adults whose only
513     impairment is a mental health diagnosis, including that of a serious mental health disorder,
514     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
515     do not apply, and the office shall conduct a comprehensive review as described in Subsection
516     (6).
517          (6) (a) The office shall conduct a comprehensive review of an applicant's background
518     check if the applicant:
519          (i) has an open court case or a conviction for any felony offense, not described in
520     Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on
521     which the applicant submits the application;
522          (ii) has an open court case or a conviction for a misdemeanor offense, not described in
523     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter

524     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
525     on which the applicant submits information to the office under Subsection (2) for a background
526     check;
527          (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
528     than three years before the day on which the applicant submitted information under Subsection
529     (2)(a);
530          (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
531     described in Subsection (5)(a);
532          (v) has a listing in the Department of Human Services, Division of Child and Family
533     Services' Licensing Information System described in Section 62A-4a-1006;
534          (vi) has a listing in the Department of Human Services, Division of Aging and Adult
535     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
536     62A-3-311.1;
537          (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
538     or neglect described in Section 78A-6-323;
539          (viii) has a record of an adjudication in juvenile court for an act that, if committed by
540     an adult, would be a felony or misdemeanor, if the applicant is:
541          (A) under 28 years [of age] old; or
542          (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to,
543     or is currently subject to a plea in abeyance or diversion agreement for a felony or a
544     misdemeanor offense described in Subsection (5)(a);
545          (ix) has a pending charge for an offense described in Subsection (5)(a); or
546          (x) is an applicant described in Subsection (5)(c).
547          (b) The comprehensive review described in Subsection (6)(a) shall include an
548     examination of:
549          (i) the date of the offense or incident;
550          (ii) the nature and seriousness of the offense or incident;
551          (iii) the circumstances under which the offense or incident occurred;
552          (iv) the age of the perpetrator when the offense or incident occurred;
553          (v) whether the offense or incident was an isolated or repeated incident;
554          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable

555     adult, including:
556          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
557          (B) sexual abuse;
558          (C) sexual exploitation; or
559          (D) negligent treatment;
560          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
561     treatment received, or additional academic or vocational schooling completed;
562          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
563     which the applicant is applying; and
564          (ix) any other pertinent information presented to or publicly available to the committee
565     members.
566          (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
567     office shall deny an application to an applicant if the office finds that approval would likely
568     create a risk of harm to a child or a vulnerable adult.
569          (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
570     office may not deny an application to an applicant solely because the applicant was convicted
571     of an offense that occurred 10 or more years before the day on which the applicant submitted
572     the information required under Subsection (2)(a) if:
573          (i) the applicant has not committed another misdemeanor or felony offense after the
574     day on which the conviction occurred; and
575          (ii) the applicant has never been convicted of an offense described in Subsection
576     (14)(c).
577          (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
578     office may make rules, consistent with this chapter, to establish procedures for the
579     comprehensive review described in this Subsection (6).
580          (7) Subject to Subsection (10), the office shall approve an application to an applicant
581     who is not denied under Subsection (5), (6), or [(13)] (14).
582          (8) (a) The office may conditionally approve an application of an applicant, for a
583     maximum of 60 days after the day on which the office sends written notice to the applicant
584     under Subsection (12), without requiring that the applicant be directly supervised, if the office:
585          (i) is awaiting the results of the criminal history search of national criminal background

586     databases; and
587          (ii) would otherwise approve an application of the applicant under Subsection (7).
588          (b) The office may conditionally approve an application of an applicant, for a
589     maximum of one year after the day on which the office sends written notice to the applicant
590     under Subsection (12), without requiring that the applicant be directly supervised if the office:
591          (i) is awaiting the results of an out-of-state registry for providers other than foster and
592     adoptive parents; and
593          (ii) would otherwise approve an application of the applicant under Subsection (7).
594          (c) Upon receiving the results of the criminal history search of a national criminal
595     background database, the office shall approve or deny the application of the applicant in
596     accordance with Subsections (5) through (7).
597          (9) A licensee or department contractor may not permit an individual to have direct
598     access to a child or a vulnerable adult unless, subject to Subsection (10):
599          (a) the individual is associated with the licensee or department contractor and:
600          (i) the individual's application is approved by the office under this section;
601          (ii) the individual's application is conditionally approved by the office under
602     Subsection (8); or
603          (iii) (A) the individual has submitted the background check information described in
604     Subsection (2) to the office;
605          (B) the office has not determined whether to approve the applicant's application; and
606          (C) the individual is directly supervised by an individual who has a current background
607     screening approval issued by the office under this section and is associated with the licensee or
608     department contractor;
609          (b) (i) the individual is associated with the licensee or department contractor;
610          (ii) the individual has a current background screening approval issued by the office
611     under this section;
612          (iii) one of the following circumstances, that the office has not yet reviewed under
613     Subsection (6), applies to the individual:
614          (A) the individual was charged with an offense described in Subsection (5)(a);
615          (B) the individual is listed in the Licensing Information System, described in Section
616     62A-4a-1006;

617          (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
618     database, described in Section 62A-3-311.1;
619          (D) the individual has a record in the juvenile court of a substantiated finding of severe
620     child abuse or neglect, described in Section 78A-6-323; or
621          (E) the individual has a record of an adjudication in juvenile court for an act that, if
622     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
623     or (6); and
624          (iv) the individual is directly supervised by an individual who:
625          (A) has a current background screening approval issued by the office under this
626     section; and
627          (B) is associated with the licensee or department contractor;
628          (c) the individual:
629          (i) is not associated with the licensee or department contractor; and
630          (ii) is directly supervised by an individual who:
631          (A) has a current background screening approval issued by the office under this
632     section; and
633          (B) is associated with the licensee or department contractor;
634          (d) the individual is the parent or guardian of the child, or the guardian of the
635     vulnerable adult;
636          (e) the individual is approved by the parent or guardian of the child, or the guardian of
637     the vulnerable adult, to have direct access to the child or the vulnerable adult;
638          (f) the individual is only permitted to have direct access to a vulnerable adult who
639     voluntarily invites the individual to visit; or
640          (g) the individual only provides incidental care for a foster child on behalf of a foster
641     parent who has used reasonable and prudent judgment to select the individual to provide the
642     incidental care for the foster child.
643          (10) An individual may not have direct access to a child or a vulnerable adult if the
644     individual is prohibited by court order from having that access.
645          (11) Notwithstanding any other provision of this section, an individual for whom the
646     office denies an application may not have direct access to a child or vulnerable adult unless the
647     office approves a subsequent application by the individual.

648          (12) (a) Within 30 days after the day on which the office receives the background
649     check information for an applicant, the office shall give notice of the clearance status to:
650          (i) the applicant, and the licensee or department contractor, of the office's decision
651     regarding the background check and findings; and
652          (ii) the applicant of any convictions and potentially disqualifying charges and
653     adjudications found in the search.
654          (b) With the notice described in Subsection (12)(a), the office shall also give the
655     applicant the details of any comprehensive review conducted under Subsection (6).
656          (c) If the notice under Subsection (12)(a) states that the applicant's application is
657     denied, the notice shall further advise the applicant that the applicant may, under Subsection
658     62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
659     challenge the office's decision.
660          (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
661     office shall make rules, consistent with this chapter:
662          (i) defining procedures for the challenge of the office's background check decision
663     described in Subsection (12)(c); and
664          (ii) expediting the process for renewal of a license under the requirements of this
665     section and other applicable sections.
666          (13) An individual or a department contractor who provides services in an adults only
667     substance use disorder program, as defined by rule, is exempt from this section. This
668     exemption does not extend to a program director or a member, as defined by Section
669     62A-2-108, of the program.
670          (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
671     of this section, if the background check of an applicant is being conducted for the purpose of
672     giving clearance status to an applicant seeking a position in a congregate care [facility]
673     program, an applicant for a one-time adoption, an applicant seeking to provide a prospective
674     foster home, or an applicant seeking to provide a prospective adoptive home, the office shall:
675          (i) check the child abuse and neglect registry in each state where each applicant resided
676     in the five years immediately preceding the day on which the applicant applied to be a foster
677     parent or adoptive parent, to determine whether the prospective foster parent or prospective
678     adoptive parent is listed in the registry as having a substantiated or supported finding of child

679     abuse or neglect; and
680          (ii) check the child abuse and neglect registry in each state where each adult living in
681     the home of the applicant described in Subsection (14)(a)(i) resided in the five years
682     immediately preceding the day on which the applicant applied to be a foster parent or adoptive
683     parent, to determine whether the adult is listed in the registry as having a substantiated or
684     supported finding of child abuse or neglect.
685          (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
686          (i) federal law or rule permits otherwise; or
687          (ii) the requirements would prohibit the Division of Child and Family Services or a
688     court from placing a child with:
689          (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
690          (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
691     or 78A-6-307.5, pending completion of the background check described in Subsection (5).
692          (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an
693     applicant seeking a position in a congregate care [facility] program, an applicant for a one-time
694     adoption, an applicant to become a prospective foster parent, or an applicant to become a
695     prospective adoptive parent if the applicant has been convicted of:
696          (i) a felony involving conduct that constitutes any of the following:
697          (A) child abuse, as described in Section 76-5-109;
698          (B) commission of domestic violence in the presence of a child, as described in Section
699     76-5-109.1;
700          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
701          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
702          (E) aggravated murder, as described in Section 76-5-202;
703          (F) murder, as described in Section 76-5-203;
704          (G) manslaughter, as described in Section 76-5-205;
705          (H) child abuse homicide, as described in Section 76-5-208;
706          (I) homicide by assault, as described in Section 76-5-209;
707          (J) kidnapping, as described in Section 76-5-301;
708          (K) child kidnapping, as described in Section 76-5-301.1;
709          (L) aggravated kidnapping, as described in Section 76-5-302;

710          (M) human trafficking of a child, as described in Section 76-5-308.5;
711          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
712          (O) sexual exploitation of a minor, as described in Section 76-5b-201;
713          (P) aggravated arson, as described in Section 76-6-103;
714          (Q) aggravated burglary, as described in Section 76-6-203;
715          (R) aggravated robbery, as described in Section 76-6-302; or
716          (S) domestic violence, as described in Section 77-36-1; or
717          (ii) an offense committed outside the state that, if committed in the state, would
718     constitute a violation of an offense described in Subsection (14)(c)(i).
719          (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
720     license renewal to a prospective foster parent or a prospective adoptive parent if, within the five
721     years immediately preceding the day on which the individual's application or license would
722     otherwise be approved, the applicant was convicted of a felony involving conduct that
723     constitutes a violation of any of the following:
724          (i) aggravated assault, as described in Section 76-5-103;
725          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
726          (iii) mayhem, as described in Section 76-5-105;
727          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
728          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
729          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
730     Act;
731          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
732     Precursor Act; or
733          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
734          (e) In addition to the circumstances described in Subsection (6)(a), the office shall
735     conduct the comprehensive review of an applicant's background check pursuant to this section
736     if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
737     child abuse and neglect registry of another state as having a substantiated or supported finding
738     of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
739          Section 4. Section 62A-2-123 is enacted to read:
740          62A-2-123. Congregate care program requirements.

741          (1) As used in this section, "disruption plan" means a child specific plan used:
742          (a) when the private-placement child stops receiving services from a congregate care
743     program; and
744          (b) for transporting a private-placement child to a parent or guardian or to another
745     congregate care program.
746          (2) A congregate care program shall keep the following for a private-placement child
747     whose parent or guardian lives outside the state:
748          (a) regularly updated contact information for the parent or guardian that lives outside
749     the state; and
750          (b) a disruption plan.
751          (3) If a private-placement child whose parent or guardian resides outside the state
752     leaves a congregate care program without following the child's disruption plan, the congregate
753     care program shall:
754          (a) notify the parent or guardian, office, and local law enforcement authorities;
755          (b) assist the state in locating the private-placement child; and
756          (c) after the child is located, transport the private-placement child:
757          (i) to a parent or guardian;
758          (ii) back to the congregate care program; or
759          (iii) to another congregate care program.
760          (4) This section does not apply to a guardian that is a state or agency.
761          (5) The office shall make rules in accordance with Title 63G, Chapter 3, Utah
762     Administrative Rulemaking Act, describing:
763          (a) additional mandatory provisions for a disruption plan; and
764          (b) how a congregate care program shall notify the office when a private-placement
765     child begins receiving services.