1     
OFFICE OF LICENSING AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Gay Lynn Bennion

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill requires the division of licensing to assess a fee for congregate care program
10     licenses.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     requires the office to regularly inspect a congregate care program;
15          ▸     requires a congregate care program to pay:
16               •     a capacity fee; and
17               •     if the congregate care program does not serve a certain percentage of state
18     clients, a higher capacity fee; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last
27     amended by Coordination Clause, Laws of Utah 2019, Chapter 193
28          62A-2-118, as last amended by Laws of Utah 2005, Chapter 188
29          62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last
30     amended by Coordination Clause, Laws of Utah 2020, Chapter 225
31     ENACTS:
32          62A-2-123, Utah Code Annotated 1953
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 62A-2-101 is amended to read:
36          62A-2-101. Definitions.
37          As used in this chapter:
38          (1) "Adult day care" means nonresidential care and supervision:
39          (a) for three or more adults for at least four but less than 24 hours a day; and
40          (b) that meets the needs of functionally impaired adults through a comprehensive
41     program that provides a variety of health, social, recreational, and related support services in a
42     protective setting.
43          (2) "Applicant" means a person who applies for an initial license or a license renewal
44     under this chapter.
45          (3) (a) "Associated with the licensee" means that an individual is:
46          (i) affiliated with a licensee as an owner, director, member of the governing body,
47     employee, agent, provider of care, department contractor, or volunteer; or
48          (ii) applying to become affiliated with a licensee in a capacity described in Subsection
49     (3)(a)(i).
50          (b) "Associated with the licensee" does not include:
51          (i) service on the following bodies, unless that service includes direct access to a child
52     or a vulnerable adult:
53          (A) a local mental health authority described in Section 17-43-301;
54          (B) a local substance abuse authority described in Section 17-43-201; or
55          (C) a board of an organization operating under a contract to provide mental health or
56     substance abuse programs, or services for the local mental health authority or substance abuse
57     authority; or
58          (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
59     at all times.
60          (4) (a) "Boarding school" means a private school that:
61          (i) uses a regionally accredited education program;
62          (ii) provides a residence to the school's students:
63          (A) for the purpose of enabling the school's students to attend classes at the school; and
64          (B) as an ancillary service to educating the students at the school;
65          (iii) has the primary purpose of providing the school's students with an education, as
66     defined in Subsection (4)(b)(i); and
67          (iv) (A) does not provide the treatment or services described in Subsection [(33)]
68     (36)(a); or
69          (B) provides the treatment or services described in Subsection [(33)] (36)(a) on a
70     limited basis, as described in Subsection (4)(b)(ii).
71          (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for
72     one or more of grades kindergarten through 12th grade.
73          (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or
74     services described in Subsection [(33)] (36)(a) on a limited basis if:
75          (A) the treatment or services described in Subsection [(33)] (36)(a) are provided only
76     as an incidental service to a student; and
77          (B) the school does not:
78          (I) specifically solicit a student for the purpose of providing the treatment or services
79     described in Subsection [(33)] (36)(a); or
80          (II) have a primary purpose of providing the treatment or services described in
81     Subsection [(33)] (36)(a).
82          (c) "Boarding school" does not include a therapeutic school.
83          (5) "Child" means [a person] an individual under 18 years [of age] old.
84          (6) "Child placing" means receiving, accepting, or providing custody or care for any
85     child, temporarily or permanently, for the purpose of:
86          (a) finding a person to adopt the child;
87          (b) placing the child in a home for adoption; or
88          (c) foster home placement.
89          (7) "Child-placing agency" means a person that engages in child placing.
90          (8) "Client" means an individual who receives or has received services from a licensee.
91          (9) "Congregate care program" means any of the following that provide services to a
92     child:
93          (a) an outdoor youth program;
94          (b) a residential support program;
95          (c) a residential treatment program; or
96          (d) a therapeutic school.
97          [(9)] (10) "Day treatment" means specialized treatment that is provided to:
98          (a) a client less than 24 hours a day; and
99          (b) four or more persons who:
100          (i) are unrelated to the owner or provider; and
101          (ii) have emotional, psychological, developmental, physical, or behavioral
102     dysfunctions, impairments, or chemical dependencies.
103          [(10)] (11) "Department" means the Department of Human Services.
104          [(11)] (12) "Department contractor" means an individual who:
105          (a) provides services under a contract with the department; and
106          (b) due to the contract with the department, has or will likely have direct access to a
107     child or vulnerable adult.
108          [(12)] (13) "Direct access" means that an individual has, or likely will have:
109          (a) contact with or access to a child or vulnerable adult that provides the individual
110     with an opportunity for personal communication or touch; or
111          (b) an opportunity to view medical, financial, or other confidential personal identifying
112     information of the child, the child's parents or legal guardians, or the vulnerable adult.
113          [(13)] (14) "Directly supervised" means that an individual is being supervised under
114     the uninterrupted visual and auditory surveillance of another individual who has a current
115     background screening approval issued by the office.
116          [(14)] (15) "Director" means the director of the Office of Licensing.
117          [(15)] (16) "Domestic violence" means the same as that term is defined in Section
118     77-36-1.
119          [(16)] (17) "Domestic violence treatment program" means a nonresidential program
120     designed to provide psychological treatment and educational services to perpetrators and
121     victims of domestic violence.
122          [(17)] (18) "Elder adult" means a person 65 years [of age] old or older.
123          [(18)] (19) "Executive director" means the executive director of the department.
124          [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office
125     of Licensing for the full-time substitute care of a child.
126          [(20)] (21) "Health benefit plan" means the same as that term is defined in Section
127     31A-1-301.
128          [(21)] (22) "Health care provider" means the same as that term is defined in Section
129     78B-3-403.
130          [(22)] (23) "Health insurer" means the same as that term is defined in Section
131     31A-22-615.5.
132          [(23)] (24) (a) "Human services program" means [a]:
133          (i) a foster home;
134          (ii) a therapeutic school;
135          (iii) a youth program;
136          (iv) an outdoor youth program;
137          (v) a residential treatment program;
138          (vi) a residential support program;
139          [(iv)] (vii) a resource family home;
140          [(v)] (viii) a recovery residence; or
141          [(vi)] (ix) a facility or program that provides:
142          [(A) secure treatment;]
143          [(B) inpatient treatment;]
144          [(C) residential treatment;]
145          [(D) residential support;]
146          [(E)] (A) adult day care;
147          [(F)] (B) day treatment;
148          [(G)] (C) outpatient treatment;
149          [(H)] (D) domestic violence treatment;
150          [(I)] (E) child-placing services;
151          [(J)] (F) social detoxification; or
152          [(K)] (G) any other human services that are required by contract with the department to
153     be licensed with the department.
154          (b) "Human services program" does not include:
155          (i) a boarding school; or
156          (ii) a residential, vocational and life skills program, as defined in Section 13-53-102.
157          [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec.
158     1903.
159          [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec.
160     1151.
161          [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec.
162     1903.
163          (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or
164     care for an individual who:
165          (a) cannot live independently or in a less restrictive environment; and
166          (b) requires, without the individual's consent or control, the use of locked doors to care
167     for the individual.
168          [(27)] (29) "Licensee" means an individual or a human services program licensed by
169     the office.
170          [(28)] (30) "Local government" means a city, town, metro township, or county.
171          [(29)] (31) "Minor" has the same meaning as "child."
172          [(30)] (32) "Office" means the Office of Licensing within the Department of Human
173     Services.
174          (33) "Outdoor youth program" means a program that provides:
175          (a) services to a child that has:
176          (i) a chemical dependency; or
177          (ii) a dysfunction or impairment that is emotional, psychological, developmental, or
178     behavioral;
179          (b) a 24-hour outdoor group living environment; and
180          (c) (i) regular therapy, including group, individual, or supportive family therapy; or
181          (ii) informal therapy or similar services, including wilderness therapy, adventure
182     therapy, or outdoor behavioral healthcare.
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          [(33)] (36) (a) "Recovery residence" means a home, residence, or facility that meets at
196     least two of the following requirements:
197          (i) provides a supervised living environment for individuals recovering from a
198     substance use disorder;
199          (ii) provides a living environment in which more than half of the individuals in the
200     residence are recovering from a substance use disorder;
201          (iii) provides or arranges for residents to receive services related to their recovery from
202     a substance use disorder, either on or off site;
203          (iv) is held out as a living environment in which individuals recovering from substance
204     abuse disorders live together to encourage continued sobriety; or
205          (v) (A) receives public funding; or
206          (B) is run as a business venture, either for-profit or not-for-profit.
207          (b) "Recovery residence" does not mean:
208          (i) a residential treatment program;
209          (ii) residential support; or
210          (iii) a home, residence, or facility, in which:
211          (A) residents, by their majority vote, establish, implement, and enforce policies
212     governing the living environment, including the manner in which applications for residence are
213     approved and the manner in which residents are expelled;
214          (B) residents equitably share rent and housing-related expenses; and
215          (C) a landlord, owner, or operator does not receive compensation, other than fair
216     market rental income, for establishing, implementing, or enforcing policies governing the
217     living environment.
218          [(34)] (37) "Regular business hours" means:
219          (a) the hours during which services of any kind are provided to a client; or
220          (b) the hours during which a client is present at the facility of a licensee.
221          [(35)] (38) (a) "Residential support program" means [arranging for or providing] a
222     program that arranges for or provides the necessities of life as a protective service to
223     individuals or families who have a disability or who are experiencing a dislocation or
224     emergency that prevents them from providing these services for themselves or their families.
225          (b) "Residential support program" includes [providing] a program that provides a
226     supervised living environment for [persons] individuals with dysfunctions or impairments that
227     are:
228          (i) emotional;
229          (ii) psychological;
230          (iii) developmental; or
231          (iv) behavioral.
232          (c) Treatment is not a necessary component of a residential support program.
233          (d) "Residential support program" does not include:
234          (i) a recovery residence; or
235          (ii) a program that provides residential services that are performed:
236          (A) exclusively under contract with the department and provided to individuals through
237     the Division of Services for People with Disabilities; or
238          (B) in a facility that serves fewer than four individuals.
239          [(36)] (39) (a) "Residential treatment" means a 24-hour group living environment for
240     four or more individuals unrelated to the owner or provider that offers room or board and
241     specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or
242     habilitation services for persons with emotional, psychological, developmental, or behavioral
243     dysfunctions, impairments, or chemical dependencies.
244          (b) "Residential treatment" does not include a:
245          (i) boarding school;
246          (ii) foster home; or
247          (iii) recovery residence.
248          [(37)] (40) "Residential treatment program" means a [human services program] a
249     program or facility that provides:
250          (a) residential treatment; or
251          (b) intermediate secure treatment.
252          [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for
253     persons whose current functioning is such that they cannot live independently or in a less
254     restrictive environment.]
255          [(b) "Secure treatment" differs from residential treatment to the extent that it requires
256     intensive supervision, locked doors, and other security measures that are imposed on residents
257     with neither their consent nor control.]
258          [(39)] (41) "Social detoxification" means short-term residential services for persons
259     who are experiencing or have recently experienced drug or alcohol intoxication, that are
260     provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care
261     Facility Licensing and Inspection Act, and that include:
262          (a) room and board for persons who are unrelated to the owner or manager of the
263     facility;
264          (b) specialized rehabilitation to acquire sobriety; and
265          (c) aftercare services.
266          [(40)] (42) "Substance abuse disorder" or "substance use disorder" mean the same as
267     "substance use disorder" is defined in Section 62A-15-1202.
268          [(41)] (43) "Substance abuse treatment program" or "substance use disorder treatment
269     program" means a program:
270          (a) designed to provide:
271          (i) specialized drug or alcohol treatment;
272          (ii) rehabilitation; or
273          (iii) habilitation services; and
274          (b) that provides the treatment or services described in Subsection [(41)] (43)(a) to
275     persons with:
276          (i) a diagnosed substance use disorder; or
277          (ii) chemical dependency disorder.
278          [(42)] (44) "Therapeutic school" means a residential group living facility:
279          (a) for four or more individuals that are not related to:
280          (i) the owner of the facility; or
281          (ii) the primary service provider of the facility;
282          (b) that serves students who have a history of failing to function:
283          (i) at home;
284          (ii) in a public school; or
285          (iii) in a nonresidential private school; and
286          (c) that offers:
287          (i) room and board; and
288          (ii) an academic education integrated with:
289          (A) specialized structure and supervision; or
290          (B) services or treatment related to:
291          (I) a disability;
292          (II) emotional development;
293          (III) behavioral development;
294          (IV) familial development; or
295          (V) social development.
296          [(43)] (45) "Unrelated persons" means persons other than parents, legal guardians,
297     grandparents, brothers, sisters, uncles, or aunts.
298          [(44)] (46) "Vulnerable adult" means an elder adult or an adult who has a temporary or
299     permanent mental or physical impairment that substantially affects the person's ability to:
300          (a) provide personal protection;
301          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
302          (c) obtain services necessary for health, safety, or welfare;
303          (d) carry out the activities of daily living;
304          (e) manage the adult's own resources; or
305          (f) comprehend the nature and consequences of remaining in a situation of abuse,
306     neglect, or exploitation.
307          [(45)] (47) (a) "Youth program" means a [nonresidential] program designed to provide
308     behavioral, substance abuse, or mental health services to minors that:
309          (i) serves adjudicated or nonadjudicated youth;
310          (ii) charges a fee for its services;
311          (iii) may [or may not] provide host homes or other arrangements for overnight
312     accommodation of the youth;
313          (iv) may [or may not] provide all or part of its services in the outdoors;
314          (v) may [or may not] limit or censor access to parents or guardians; and
315          (vi) prohibits or restricts a minor's ability to leave the program at any time of the
316     minor's own free will.
317          (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
318     Scouts, 4-H, and other such organizations.
319          Section 2. Section 62A-2-118 is amended to read:
320          62A-2-118. Administrative inspections.
321          (1) [The] (a) Subject to Subsection (1)(b), the office may, for the purpose of
322     ascertaining compliance with this chapter, enter and inspect on a routine basis the facility of a
323     licensee.
324          (b) The office shall enter and inspect a congregate care program at least once each
325     calendar quarter.
326          (c) If another government entity conducts an inspection of a congregate care program
327     that is substantially similar to an inspection conducted by the office, the office may conclude
328     the inspection satisfies an inspection described in Subsection (1)(b).
329          (2) Before conducting an inspection under Subsection (1), the office shall, after
330     identifying the person in charge:
331          (a) give proper identification;
332          (b) request to see the applicable license;
333          (c) describe the nature and purpose of the inspection; and
334          (d) if necessary, explain the authority of the office to conduct the inspection and the
335     penalty for refusing to permit the inspection as provided in Section 62A-2-116.
336          (3) In conducting an inspection under Subsection (1), the office may, after meeting the
337     requirements of Subsection (2):
338          (a) inspect the physical facilities;
339          (b) inspect and copy records and documents;
340          (c) interview officers, employees, clients, family members of clients, and others; and
341          (d) observe the licensee in operation.
342          (4) An inspection conducted under Subsection (1) shall be during regular business
343     hours and may be announced or unannounced.
344          (5) The licensee shall make copies of inspection reports available to the public upon
345     request.
346          (6) The provisions of this section apply to on-site inspections and do not restrict the
347     office from contacting family members, neighbors, or other individuals, or from seeking
348     information from other sources to determine compliance with this chapter.
349          Section 3. Section 62A-2-120 is amended to read:
350          62A-2-120. Background check -- Direct access to children or vulnerable adults.
351          (1) As used in this section:
352          (a) (i) "Applicant" means:
353          (A) the same as that term is defined in Section 62A-2-101;
354          (B) an individual who is associated with a licensee and has or will likely have direct
355     access to a child or a vulnerable adult;
356          (C) an individual who provides respite care to a foster parent or an adoptive parent on
357     more than one occasion;
358          (D) a department contractor;
359          (E) a guardian submitting an application on behalf of an individual, other than the child
360     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
361     older and resides in a home, that is licensed or certified by the office, with the child or
362     vulnerable adult who is receiving services; or
363          (F) a guardian submitting an application on behalf of an individual, other than the child
364     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
365     older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
366          (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
367     of the Division of Child and Family Services or the Division of Juvenile Justice Services.
368          (b) "Application" means a background screening application to the office.
369          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
370     Public Safety, created in Section 53-10-201.
371          (d) "Incidental care" means occasional care, not in excess of five hours per week and
372     never overnight, for a foster child.
373          (e) "Personal identifying information" means:
374          (i) current name, former names, nicknames, and aliases;
375          (ii) date of birth;
376          (iii) physical address and email address;
377          (iv) telephone number;
378          (v) driver license or other government-issued identification;
379          (vi) social security number;
380          (vii) only for applicants who are 18 years [of age] old or older, fingerprints, in a form
381     specified by the office; and
382          (viii) other information specified by the office by rule made in accordance with Title
383     63G, Chapter 3, Utah Administrative Rulemaking Act.
384          (2) (a) Except as provided in Subsection (13), an applicant or a representative shall
385     submit the following to the office:
386          (i) personal identifying information;
387          (ii) a fee established by the office under Section 63J-1-504; and
388          (iii) a disclosure form, specified by the office, for consent for:
389          (A) an initial background check upon submission of the information described under
390     this Subsection (2)(a);
391          (B) ongoing monitoring of fingerprints and registries until no longer associated with a
392     licensee for 90 days;
393          (C) a background check when the office determines that reasonable cause exists; and
394          (D) retention of personal identifying information, including fingerprints, for
395     monitoring and notification as described in Subsections (3)(d) and (4).
396          (b) In addition to the requirements described in Subsection (2)(a), if an applicant
397     resided outside of the United States and its territories during the five years immediately
398     preceding the day on which the information described in Subsection (2)(a) is submitted to the
399     office, the office may require the applicant to submit documentation establishing whether the
400     applicant was convicted of a crime during the time that the applicant resided outside of the
401     United States or its territories.
402          (3) The office:
403          (a) shall perform the following duties as part of a background check of an applicant:
404          (i) check state and regional criminal background databases for the applicant's criminal
405     history by:
406          (A) submitting personal identifying information to the bureau for a search; or
407          (B) using the applicant's personal identifying information to search state and regional
408     criminal background databases as authorized under Section 53-10-108;
409          (ii) submit the applicant's personal identifying information and fingerprints to the
410     bureau for a criminal history search of applicable national criminal background databases;
411          (iii) search the Department of Human Services, Division of Child and Family Services'
412     Licensing Information System described in Section 62A-4a-1006;
413          (iv) search the Department of Human Services, Division of Aging and Adult Services'
414     vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
415          (v) search the juvenile court records for substantiated findings of severe child abuse or
416     neglect described in Section 78A-6-323; and
417          (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
418     under Section 78A-6-209;
419          (b) shall conduct a background check of an applicant for an initial background check
420     upon submission of the information described under Subsection (2)(a);
421          (c) may conduct all or portions of a background check of an applicant, as provided by
422     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
423     Rulemaking Act:
424          (i) for an annual renewal; or
425          (ii) when the office determines that reasonable cause exists;
426          (d) may submit an applicant's personal identifying information, including fingerprints,
427     to the bureau for checking, retaining, and monitoring of state and national criminal background
428     databases and for notifying the office of new criminal activity associated with the applicant;
429          (e) shall track the status of an approved applicant under this section to ensure that an
430     approved applicant is not required to duplicate the submission of the applicant's fingerprints if
431     the applicant applies for:
432          (i) more than one license;
433          (ii) direct access to a child or a vulnerable adult in more than one human services
434     program; or
435          (iii) direct access to a child or a vulnerable adult under a contract with the department;
436          (f) shall track the status of each license and each individual with direct access to a child
437     or a vulnerable adult and notify the bureau within 90 days after the day on which the license
438     expires or the individual's direct access to a child or a vulnerable adult ceases;
439          (g) shall adopt measures to strictly limit access to personal identifying information
440     solely to the individuals responsible for processing and entering the applications for
441     background checks and to protect the security of the personal identifying information the office
442     reviews under this Subsection (3);
443          (h) as necessary to comply with the federal requirement to check a state's child abuse
444     and neglect registry regarding any individual working in a congregate care [setting that serves
445     children] program, shall:
446          (i) search the Department of Human Services, Division of Child and Family Services'
447     Licensing Information System described in Section 62A-4a-1006; and
448          (ii) require the child abuse and neglect registry be checked in each state where an
449     applicant resided at any time during the five years immediately preceding the day on which the
450     applicant submits the information described in Subsection (2)(a) to the office; and
451          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
452     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
453     checks.
454          (4) (a) With the personal identifying information the office submits to the bureau under
455     Subsection (3), the bureau shall check against state and regional criminal background databases
456     for the applicant's criminal history.
457          (b) With the personal identifying information and fingerprints the office submits to the
458     bureau under Subsection (3), the bureau shall check against national criminal background
459     databases for the applicant's criminal history.
460          (c) Upon direction from the office, and with the personal identifying information and
461     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
462          (i) maintain a separate file of the fingerprints for search by future submissions to the
463     local and regional criminal records databases, including latent prints; and
464          (ii) monitor state and regional criminal background databases and identify criminal
465     activity associated with the applicant.
466          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
467     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
468     Investigation Next Generation Identification System for the purpose of:
469          (i) being searched by future submissions to the national criminal records databases,
470     including the Federal Bureau of Investigation Next Generation Identification System and latent
471     prints; and
472          (ii) monitoring national criminal background databases and identifying criminal
473     activity associated with the applicant.
474          (e) The Bureau shall notify and release to the office all information of criminal activity
475     associated with the applicant.
476          (f) Upon notice from the office that a license has expired or an individual's direct
477     access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
478          (i) discard and destroy any retained fingerprints; and
479          (ii) notify the Federal Bureau of Investigation when the license has expired or an
480     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
481     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
482     Investigation Next Generation Identification System.
483          (5) (a) After conducting the background check described in Subsections (3) and (4), the
484     office shall deny an application to an applicant who, within three years before the day on which
485     the applicant submits information to the office under Subsection (2) for a background check,
486     has been convicted of any of the following, regardless of whether the offense is a felony, a
487     misdemeanor, or an infraction:
488          (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
489     animals, or bestiality;
490          (ii) a violation of any pornography law, including sexual exploitation of a minor;
491          (iii) prostitution;
492          (iv) an offense included in:
493          (A) Title 76, Chapter 5, Offenses Against the Person;
494          (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
495          (C) Title 76, Chapter 7, Offenses Against the Family;
496          (v) aggravated arson, as described in Section 76-6-103;
497          (vi) aggravated burglary, as described in Section 76-6-203;
498          (vii) aggravated robbery, as described in Section 76-6-302;
499          (viii) identity fraud crime, as described in Section 76-6-1102; or
500          (ix) a felony or misdemeanor offense committed outside of the state that, if committed
501     in the state, would constitute a violation of an offense described in Subsections (5)(a)(i)
502     through (viii).
503          (b) If the office denies an application to an applicant based on a conviction described in
504     Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
505     Subsection (6).
506          (c) If the applicant will be working in a program serving only adults whose only
507     impairment is a mental health diagnosis, including that of a serious mental health disorder,
508     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
509     do not apply, and the office shall conduct a comprehensive review as described in Subsection
510     (6).
511          (6) (a) The office shall conduct a comprehensive review of an applicant's background
512     check if the applicant:
513          (i) has an open court case or a conviction for any felony offense, not described in
514     Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on
515     which the applicant submits the application;
516          (ii) has an open court case or a conviction for a misdemeanor offense, not described in
517     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
518     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
519     on which the applicant submits information to the office under Subsection (2) for a background
520     check;
521          (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
522     than three years before the day on which the applicant submitted information under Subsection
523     (2)(a);
524          (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
525     described in Subsection (5)(a);
526          (v) has a listing in the Department of Human Services, Division of Child and Family
527     Services' Licensing Information System described in Section 62A-4a-1006;
528          (vi) has a listing in the Department of Human Services, Division of Aging and Adult
529     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
530     62A-3-311.1;
531          (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
532     or neglect described in Section 78A-6-323;
533          (viii) has a record of an adjudication in juvenile court for an act that, if committed by
534     an adult, would be a felony or misdemeanor, if the applicant is:
535          (A) under 28 years [of age] old; or
536          (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to,
537     or is currently subject to a plea in abeyance or diversion agreement for a felony or a
538     misdemeanor offense described in Subsection (5)(a);
539          (ix) has a pending charge for an offense described in Subsection (5)(a); or
540          (x) is an applicant described in Subsection (5)(c).
541          (b) The comprehensive review described in Subsection (6)(a) shall include an
542     examination of:
543          (i) the date of the offense or incident;
544          (ii) the nature and seriousness of the offense or incident;
545          (iii) the circumstances under which the offense or incident occurred;
546          (iv) the age of the perpetrator when the offense or incident occurred;
547          (v) whether the offense or incident was an isolated or repeated incident;
548          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
549     adult, including:
550          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
551          (B) sexual abuse;
552          (C) sexual exploitation; or
553          (D) negligent treatment;
554          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
555     treatment received, or additional academic or vocational schooling completed;
556          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
557     which the applicant is applying; and
558          (ix) any other pertinent information presented to or publicly available to the committee
559     members.
560          (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
561     office shall deny an application to an applicant if the office finds that approval would likely
562     create a risk of harm to a child or a vulnerable adult.
563          (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
564     office may not deny an application to an applicant solely because the applicant was convicted
565     of an offense that occurred 10 or more years before the day on which the applicant submitted
566     the information required under Subsection (2)(a) if:
567          (i) the applicant has not committed another misdemeanor or felony offense after the
568     day on which the conviction occurred; and
569          (ii) the applicant has never been convicted of an offense described in Subsection
570     (14)(c).
571          (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
572     office may make rules, consistent with this chapter, to establish procedures for the
573     comprehensive review described in this Subsection (6).
574          (7) Subject to Subsection (10), the office shall approve an application to an applicant
575     who is not denied under Subsection (5), (6), or [(13)] (14).
576          (8) (a) The office may conditionally approve an application of an applicant, for a
577     maximum of 60 days after the day on which the office sends written notice to the applicant
578     under Subsection (12), without requiring that the applicant be directly supervised, if the office:
579          (i) is awaiting the results of the criminal history search of national criminal background
580     databases; and
581          (ii) would otherwise approve an application of the applicant under Subsection (7).
582          (b) The office may conditionally approve an application of an applicant, for a
583     maximum of one year 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 an out-of-state registry for providers other than foster and
586     adoptive parents; and
587          (ii) would otherwise approve an application of the applicant under Subsection (7).
588          (c) Upon receiving the results of the criminal history search of a national criminal
589     background database, the office shall approve or deny the application of the applicant in
590     accordance with Subsections (5) through (7).
591          (9) A licensee or department contractor may not permit an individual to have direct
592     access to a child or a vulnerable adult unless, subject to Subsection (10):
593          (a) the individual is associated with the licensee or department contractor and:
594          (i) the individual's application is approved by the office under this section;
595          (ii) the individual's application is conditionally approved by the office under
596     Subsection (8); or
597          (iii) (A) the individual has submitted the background check information described in
598     Subsection (2) to the office;
599          (B) the office has not determined whether to approve the applicant's application; and
600          (C) the individual is directly supervised by an individual who has a current background
601     screening approval issued by the office under this section and is associated with the licensee or
602     department contractor;
603          (b) (i) the individual is associated with the licensee or department contractor;
604          (ii) the individual has a current background screening approval issued by the office
605     under this section;
606          (iii) one of the following circumstances, that the office has not yet reviewed under
607     Subsection (6), applies to the individual:
608          (A) the individual was charged with an offense described in Subsection (5)(a);
609          (B) the individual is listed in the Licensing Information System, described in Section
610     62A-4a-1006;
611          (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
612     database, described in Section 62A-3-311.1;
613          (D) the individual has a record in the juvenile court of a substantiated finding of severe
614     child abuse or neglect, described in Section 78A-6-323; or
615          (E) the individual has a record of an adjudication in juvenile court for an act that, if
616     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
617     or (6); and
618          (iv) the individual is directly supervised by an individual who:
619          (A) has a current background screening approval issued by the office under this
620     section; and
621          (B) is associated with the licensee or department contractor;
622          (c) the individual:
623          (i) is not associated with the licensee or department contractor; and
624          (ii) 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          (d) the individual is the parent or guardian of the child, or the guardian of the
629     vulnerable adult;
630          (e) the individual is approved by the parent or guardian of the child, or the guardian of
631     the vulnerable adult, to have direct access to the child or the vulnerable adult;
632          (f) the individual is only permitted to have direct access to a vulnerable adult who
633     voluntarily invites the individual to visit; or
634          (g) the individual only provides incidental care for a foster child on behalf of a foster
635     parent who has used reasonable and prudent judgment to select the individual to provide the
636     incidental care for the foster child.
637          (10) An individual may not have direct access to a child or a vulnerable adult if the
638     individual is prohibited by court order from having that access.
639          (11) Notwithstanding any other provision of this section, an individual for whom the
640     office denies an application may not have direct access to a child or vulnerable adult unless the
641     office approves a subsequent application by the individual.
642          (12) (a) Within 30 days after the day on which the office receives the background
643     check information for an applicant, the office shall give notice of the clearance status to:
644          (i) the applicant, and the licensee or department contractor, of the office's decision
645     regarding the background check and findings; and
646          (ii) the applicant of any convictions and potentially disqualifying charges and
647     adjudications found in the search.
648          (b) With the notice described in Subsection (12)(a), the office shall also give the
649     applicant the details of any comprehensive review conducted under Subsection (6).
650          (c) If the notice under Subsection (12)(a) states that the applicant's application is
651     denied, the notice shall further advise the applicant that the applicant may, under Subsection
652     62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
653     challenge the office's decision.
654          (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
655     office shall make rules, consistent with this chapter:
656          (i) defining procedures for the challenge of the office's background check decision
657     described in Subsection (12)(c); and
658          (ii) expediting the process for renewal of a license under the requirements of this
659     section and other applicable sections.
660          (13) An individual or a department contractor who provides services in an adults only
661     substance use disorder program, as defined by rule, is exempt from this section. This
662     exemption does not extend to a program director or a member, as defined by Section
663     62A-2-108, of the program.
664          (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
665     of this section, if the background check of an applicant is being conducted for the purpose of
666     giving clearance status to an applicant seeking a position in a congregate care [facility]
667     program, an applicant for a one-time adoption, an applicant seeking to provide a prospective
668     foster home, or an applicant seeking to provide a prospective adoptive home, the office shall:
669          (i) check the child abuse and neglect registry in each state where each applicant resided
670     in the five years immediately preceding the day on which the applicant applied to be a foster
671     parent or adoptive parent, to determine whether the prospective foster parent or prospective
672     adoptive parent is listed in the registry as having a substantiated or supported finding of child
673     abuse or neglect; and
674          (ii) check the child abuse and neglect registry in each state where each adult living in
675     the home of the applicant described in Subsection (14)(a)(i) resided in the five years
676     immediately preceding the day on which the applicant applied to be a foster parent or adoptive
677     parent, to determine whether the adult is listed in the registry as having a substantiated or
678     supported finding of child abuse or neglect.
679          (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
680          (i) federal law or rule permits otherwise; or
681          (ii) the requirements would prohibit the Division of Child and Family Services or a
682     court from placing a child with:
683          (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
684          (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
685     or 78A-6-307.5, pending completion of the background check described in Subsection (5).
686          (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an
687     applicant seeking a position in a congregate care [facility] program, an applicant for a one-time
688     adoption, an applicant to become a prospective foster parent, or an applicant to become a
689     prospective adoptive parent if the applicant has been convicted of:
690          (i) a felony involving conduct that constitutes any of the following:
691          (A) child abuse, as described in Section 76-5-109;
692          (B) commission of domestic violence in the presence of a child, as described in Section
693     76-5-109.1;
694          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
695          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
696          (E) aggravated murder, as described in Section 76-5-202;
697          (F) murder, as described in Section 76-5-203;
698          (G) manslaughter, as described in Section 76-5-205;
699          (H) child abuse homicide, as described in Section 76-5-208;
700          (I) homicide by assault, as described in Section 76-5-209;
701          (J) kidnapping, as described in Section 76-5-301;
702          (K) child kidnapping, as described in Section 76-5-301.1;
703          (L) aggravated kidnapping, as described in Section 76-5-302;
704          (M) human trafficking of a child, as described in Section 76-5-308.5;
705          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
706          (O) sexual exploitation of a minor, as described in Section 76-5b-201;
707          (P) aggravated arson, as described in Section 76-6-103;
708          (Q) aggravated burglary, as described in Section 76-6-203;
709          (R) aggravated robbery, as described in Section 76-6-302; or
710          (S) domestic violence, as described in Section 77-36-1; or
711          (ii) an offense committed outside the state that, if committed in the state, would
712     constitute a violation of an offense described in Subsection (14)(c)(i).
713          (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
714     license renewal to a prospective foster parent or a prospective adoptive parent if, within the five
715     years immediately preceding the day on which the individual's application or license would
716     otherwise be approved, the applicant was convicted of a felony involving conduct that
717     constitutes a violation of any of the following:
718          (i) aggravated assault, as described in Section 76-5-103;
719          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
720          (iii) mayhem, as described in Section 76-5-105;
721          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
722          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
723          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
724     Act;
725          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
726     Precursor Act; or
727          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
728          (e) In addition to the circumstances described in Subsection (6)(a), the office shall
729     conduct the comprehensive review of an applicant's background check pursuant to this section
730     if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
731     child abuse and neglect registry of another state as having a substantiated or supported finding
732     of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
733          Section 4. Section 62A-2-123 is enacted to read:
734          62A-2-123. Congregate care program fees.
735          (1) As used in this section:
736          (a) "Bed capacity" means:
737          (i) a congregate care program's total number of beds; multiplied by
738          (ii) the number of days the congregate care program fills at least one bed during the
739     prior fiscal year.
740          (b) "Per licensed capacity fee" means a fee for each bed a congregate care program
741     licenses with the office.
742          (c) "State bed total" means the total number of beds occupied by a state client for each
743     day a congregate care program fills at least one bed during the prior fiscal year.
744          (d) "State client" means a child in the custody of the state of Utah.
745          (e) "State client use" means the total percentage of:
746          (i) a congregate care program's state bed total; divided by
747          (ii) the congregate care program's bed capacity.
748          (2) (a) In addition to any other fees assessed by the office, a congregate care program
749     shall pay the office a per licensed capacity fee.
750          (b) If a congregate care program's state client use is less than 25%, the congregate care
751     program shall pay a per licensed capacity fee that is at least $125.
752          (3) On or before July 31, and each subsequent July 31, a congregate care program shall
753     provide the office the congregate care program's:
754          (a) bed capacity for the prior fiscal year, including the totals used to calculate the bed
755     capacity; and
756          (b) state bed total for the prior year.
757          (4) The office may audit a congregate care program to verify the accuracy of the
758     information described in Subsection (3).
759          (5) The office shall establish each fee described in Subsection (2) in accordance with
760     Subsection 63J-1-504.