Representative Gay Lynn Bennion proposes the following substitute bill:


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 creates additional requirements for the Office of Licensing.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires the office to regularly inspect a congregate care program;
14          ▸     creates a reporting requirement; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last
23     amended by Coordination Clause, Laws of Utah 2019, Chapter 193
24          62A-2-118, as last amended by Laws of Utah 2005, Chapter 188
25          62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last
26     amended by Coordination Clause, Laws of Utah 2020, Chapter 225
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 62A-2-101 is amended to read:
30          62A-2-101. Definitions.
31          As used in this chapter:
32          (1) "Adult day care" means nonresidential care and supervision:
33          (a) for three or more adults for at least four but less than 24 hours a day; and
34          (b) that meets the needs of functionally impaired adults through a comprehensive
35     program that provides a variety of health, social, recreational, and related support services in a
36     protective setting.
37          (2) "Applicant" means a person who applies for an initial license or a license renewal
38     under this chapter.
39          (3) (a) "Associated with the licensee" means that an individual is:
40          (i) affiliated with a licensee as an owner, director, member of the governing body,
41     employee, agent, provider of care, department contractor, or volunteer; or
42          (ii) applying to become affiliated with a licensee in a capacity described in Subsection
43     (3)(a)(i).
44          (b) "Associated with the licensee" does not include:
45          (i) service on the following bodies, unless that service includes direct access to a child
46     or a vulnerable adult:
47          (A) a local mental health authority described in Section 17-43-301;
48          (B) a local substance abuse authority described in Section 17-43-201; or
49          (C) a board of an organization operating under a contract to provide mental health or
50     substance abuse programs, or services for the local mental health authority or substance abuse
51     authority; or
52          (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
53     at all times.
54          (4) (a) "Boarding school" means a private school that:
55          (i) uses a regionally accredited education program;
56          (ii) provides a residence to the school's students:
57          (A) for the purpose of enabling the school's students to attend classes at the school; and
58          (B) as an ancillary service to educating the students at the school;
59          (iii) has the primary purpose of providing the school's students with an education, as
60     defined in Subsection (4)(b)(i); and
61          (iv) (A) does not provide the treatment or services described in Subsection [(33)]
62     (36)(a); or
63          (B) provides the treatment or services described in Subsection [(33)] (36)(a) on a
64     limited basis, as described in Subsection (4)(b)(ii).
65          (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for
66     one or more of grades kindergarten through 12th grade.
67          (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or
68     services described in Subsection [(33)] (36)(a) on a limited basis if:
69          (A) the treatment or services described in Subsection [(33)] (36)(a) are provided only
70     as an incidental service to a student; and
71          (B) the school does not:
72          (I) specifically solicit a student for the purpose of providing the treatment or services
73     described in Subsection [(33)] (36)(a); or
74          (II) have a primary purpose of providing the treatment or services described in
75     Subsection [(33)] (36)(a).
76          (c) "Boarding school" does not include a therapeutic school.
77          (5) "Child" means [a person] an individual under 18 years [of age] old.
78          (6) "Child placing" means receiving, accepting, or providing custody or care for any
79     child, temporarily or permanently, for the purpose of:
80          (a) finding a person to adopt the child;
81          (b) placing the child in a home for adoption; or
82          (c) foster home placement.
83          (7) "Child-placing agency" means a person that engages in child placing.
84          (8) "Client" means an individual who receives or has received services from a licensee.
85          (9) "Congregate care program" means any of the following that provide services to a
86     child:
87          (a) an outdoor youth program;
88          (b) a residential support program;
89          (c) a residential treatment program; or
90          (d) a therapeutic school.
91          [(9)] (10) "Day treatment" means specialized treatment that is provided to:
92          (a) a client less than 24 hours a day; and
93          (b) four or more persons who:
94          (i) are unrelated to the owner or provider; and
95          (ii) have emotional, psychological, developmental, physical, or behavioral
96     dysfunctions, impairments, or chemical dependencies.
97          [(10)] (11) "Department" means the Department of Human Services.
98          [(11)] (12) "Department contractor" means an individual who:
99          (a) provides services under a contract with the department; and
100          (b) due to the contract with the department, has or will likely have direct access to a
101     child or vulnerable adult.
102          [(12)] (13) "Direct access" means that an individual has, or likely will have:
103          (a) contact with or access to a child or vulnerable adult that provides the individual
104     with an opportunity for personal communication or touch; or
105          (b) an opportunity to view medical, financial, or other confidential personal identifying
106     information of the child, the child's parents or legal guardians, or the vulnerable adult.
107          [(13)] (14) "Directly supervised" means that an individual is being supervised under
108     the uninterrupted visual and auditory surveillance of another individual who has a current
109     background screening approval issued by the office.
110          [(14)] (15) "Director" means the director of the Office of Licensing.
111          [(15)] (16) "Domestic violence" means the same as that term is defined in Section
112     77-36-1.
113          [(16)] (17) "Domestic violence treatment program" means a nonresidential program
114     designed to provide psychological treatment and educational services to perpetrators and
115     victims of domestic violence.
116          [(17)] (18) "Elder adult" means a person 65 years [of age] old or older.
117          [(18)] (19) "Executive director" means the executive director of the department.
118          [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office
119     of Licensing for the full-time substitute care of a child.
120          [(20)] (21) "Health benefit plan" means the same as that term is defined in Section
121     31A-1-301.
122          [(21)] (22) "Health care provider" means the same as that term is defined in Section
123     78B-3-403.
124          [(22)] (23) "Health insurer" means the same as that term is defined in Section
125     31A-22-615.5.
126          [(23)] (24) (a) "Human services program" means [a]:
127          (i) a foster home;
128          (ii) a therapeutic school;
129          (iii) a youth program;
130          (iv) an outdoor youth program;
131          (v) a residential treatment program;
132          (vi) a residential support program;
133          [(iv)] (vii) a resource family home;
134          [(v)] (viii) a recovery residence; or
135          [(vi)] (ix) a facility or program that provides:
136          [(A) secure treatment;]
137          [(B) inpatient treatment;]
138          [(C) residential treatment;]
139          [(D) residential support;]
140          [(E)] (A) adult day care;
141          [(F)] (B) day treatment;
142          [(G)] (C) outpatient treatment;
143          [(H)] (D) domestic violence treatment;
144          [(I)] (E) child-placing services;
145          [(J)] (F) social detoxification; or
146          [(K)] (G) any other human services that are required by contract with the department to
147     be licensed with the department.
148          (b) "Human services program" does not include:
149          (i) a boarding school; or
150          (ii) a residential, vocational and life skills program, as defined in Section 13-53-102.
151          [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec.
152     1903.
153          [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec.
154     1151.
155          [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec.
156     1903.
157          (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or
158     care for an individual who:
159          (a) cannot live independently or in a less restrictive environment; and
160          (b) requires, without the individual's consent or control, the use of locked doors to care
161     for the individual.
162          [(27)] (29) "Licensee" means an individual or a human services program licensed by
163     the office.
164          [(28)] (30) "Local government" means a city, town, metro township, or county.
165          [(29)] (31) "Minor" has the same meaning as "child."
166          [(30)] (32) "Office" means the Office of Licensing within the Department of Human
167     Services.
168          (33) "Outdoor youth program" means a program that provides:
169          (a) services to a child that has:
170          (i) a chemical dependency; or
171          (ii) a dysfunction or impairment that is emotional, psychological, developmental, or
172     behavioral;
173          (b) a 24-hour outdoor group living environment; and
174          (c) (i) regular therapy, including group, individual, or supportive family therapy; or
175          (ii) informal therapy or similar services, including wilderness therapy, adventure
176     therapy, or outdoor behavioral healthcare.
177          [(31)] (34) "Outpatient treatment" means individual, family, or group therapy or
178     counseling designed to improve and enhance social or psychological functioning for those
179     whose physical and emotional status allows them to continue functioning in their usual living
180     environment.
181          [(32)] (35) "Practice group" or "group practice" means two or more health care
182     providers legally organized as a partnership, professional corporation, or similar association,
183     for which:
184          (a) substantially all of the services of the health care providers who are members of the
185     group are provided through the group and are billed in the name of the group and amounts
186     received are treated as receipts of the group; and
187          (b) the overhead expenses of and the income from the practice are distributed in
188     accordance with methods previously determined by members of the group.
189          [(33)] (36) (a) "Recovery residence" means a home, residence, or facility that meets at
190     least two of the following requirements:
191          (i) provides a supervised living environment for individuals recovering from a
192     substance use disorder;
193          (ii) provides a living environment in which more than half of the individuals in the
194     residence are recovering from a substance use disorder;
195          (iii) provides or arranges for residents to receive services related to their recovery from
196     a substance use disorder, either on or off site;
197          (iv) is held out as a living environment in which individuals recovering from substance
198     abuse disorders live together to encourage continued sobriety; or
199          (v) (A) receives public funding; or
200          (B) is run as a business venture, either for-profit or not-for-profit.
201          (b) "Recovery residence" does not mean:
202          (i) a residential treatment program;
203          (ii) residential support; or
204          (iii) a home, residence, or facility, in which:
205          (A) residents, by their majority vote, establish, implement, and enforce policies
206     governing the living environment, including the manner in which applications for residence are
207     approved and the manner in which residents are expelled;
208          (B) residents equitably share rent and housing-related expenses; and
209          (C) a landlord, owner, or operator does not receive compensation, other than fair
210     market rental income, for establishing, implementing, or enforcing policies governing the
211     living environment.
212          [(34)] (37) "Regular business hours" means:
213          (a) the hours during which services of any kind are provided to a client; or
214          (b) the hours during which a client is present at the facility of a licensee.
215          [(35)] (38) (a) "Residential support program" means [arranging for or providing] a
216     program that arranges for or provides the necessities of life as a protective service to
217     individuals or families who have a disability or who are experiencing a dislocation or
218     emergency that prevents them from providing these services for themselves or their families.
219          (b) "Residential support program" includes [providing] a program that provides a
220     supervised living environment for [persons] individuals with dysfunctions or impairments that
221     are:
222          (i) emotional;
223          (ii) psychological;
224          (iii) developmental; or
225          (iv) behavioral.
226          (c) Treatment is not a necessary component of a residential support program.
227          (d) "Residential support program" does not include:
228          (i) a recovery residence; or
229          (ii) a program that provides residential services that are performed:
230          (A) exclusively under contract with the department and provided to individuals through
231     the Division of Services for People with Disabilities; or
232          (B) in a facility that serves fewer than four individuals.
233          [(36)] (39) (a) "Residential treatment" means a 24-hour group living environment for
234     four or more individuals unrelated to the owner or provider that offers room or board and
235     specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or
236     habilitation services for persons with emotional, psychological, developmental, or behavioral
237     dysfunctions, impairments, or chemical dependencies.
238          (b) "Residential treatment" does not include a:
239          (i) boarding school;
240          (ii) foster home; or
241          (iii) recovery residence.
242          [(37)] (40) "Residential treatment program" means a [human services program] a
243     program or facility that provides:
244          (a) residential treatment; or
245          (b) intermediate secure treatment.
246          [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for
247     persons whose current functioning is such that they cannot live independently or in a less
248     restrictive environment.]
249          [(b) "Secure treatment" differs from residential treatment to the extent that it requires
250     intensive supervision, locked doors, and other security measures that are imposed on residents
251     with neither their consent nor control.]
252          [(39)] (41) "Social detoxification" means short-term residential services for persons
253     who are experiencing or have recently experienced drug or alcohol intoxication, that are
254     provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care
255     Facility Licensing and Inspection Act, and that include:
256          (a) room and board for persons who are unrelated to the owner or manager of the
257     facility;
258          (b) specialized rehabilitation to acquire sobriety; and
259          (c) aftercare services.
260          [(40)] (42) "Substance abuse disorder" or "substance use disorder" mean the same as
261     "substance use disorder" is defined in Section 62A-15-1202.
262          [(41)] (43) "Substance abuse treatment program" or "substance use disorder treatment
263     program" means a program:
264          (a) designed to provide:
265          (i) specialized drug or alcohol treatment;
266          (ii) rehabilitation; or
267          (iii) habilitation services; and
268          (b) that provides the treatment or services described in Subsection [(41)] (43)(a) to
269     persons with:
270          (i) a diagnosed substance use disorder; or
271          (ii) chemical dependency disorder.
272          [(42)] (44) "Therapeutic school" means a residential group living facility:
273          (a) for four or more individuals that are not related to:
274          (i) the owner of the facility; or
275          (ii) the primary service provider of the facility;
276          (b) that serves students who have a history of failing to function:
277          (i) at home;
278          (ii) in a public school; or
279          (iii) in a nonresidential private school; and
280          (c) that offers:
281          (i) room and board; and
282          (ii) an academic education integrated with:
283          (A) specialized structure and supervision; or
284          (B) services or treatment related to:
285          (I) a disability;
286          (II) emotional development;
287          (III) behavioral development;
288          (IV) familial development; or
289          (V) social development.
290          [(43)] (45) "Unrelated persons" means persons other than parents, legal guardians,
291     grandparents, brothers, sisters, uncles, or aunts.
292          [(44)] (46) "Vulnerable adult" means an elder adult or an adult who has a temporary or
293     permanent mental or physical impairment that substantially affects the person's ability to:
294          (a) provide personal protection;
295          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
296          (c) obtain services necessary for health, safety, or welfare;
297          (d) carry out the activities of daily living;
298          (e) manage the adult's own resources; or
299          (f) comprehend the nature and consequences of remaining in a situation of abuse,
300     neglect, or exploitation.
301          [(45)] (47) (a) "Youth program" means a [nonresidential] program designed to provide
302     behavioral, substance abuse, or mental health services to minors that:
303          (i) serves adjudicated or nonadjudicated youth;
304          (ii) charges a fee for its services;
305          (iii) may [or may not] provide host homes or other arrangements for overnight
306     accommodation of the youth;
307          (iv) may [or may not] provide all or part of its services in the outdoors;
308          (v) may [or may not] limit or censor access to parents or guardians; and
309          (vi) prohibits or restricts a minor's ability to leave the program at any time of the
310     minor's own free will.
311          (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
312     Scouts, 4-H, and other such organizations.
313          Section 2. Section 62A-2-118 is amended to read:
314          62A-2-118. Administrative inspections and reports.
315          (1) [The] (a) Subject to Subsection (1)(b), the office may, for the purpose of
316     ascertaining compliance with this chapter, enter and inspect on a routine basis the facility of a
317     licensee.
318          (b) The office shall enter and inspect a congregate care program at least once each
319     calendar quarter.
320          (c) If another government entity conducts an inspection of a congregate care program
321     that is substantially similar to an inspection conducted by the office, the office may conclude
322     the inspection satisfies an inspection described in Subsection (1)(b).
323          (2) Before conducting an inspection under Subsection (1), the office shall, after
324     identifying the person in charge:
325          (a) give proper identification;
326          (b) request to see the applicable license;
327          (c) describe the nature and purpose of the inspection; and
328          (d) if necessary, explain the authority of the office to conduct the inspection and the
329     penalty for refusing to permit the inspection as provided in Section 62A-2-116.
330          (3) In conducting an inspection under Subsection (1), the office may, after meeting the
331     requirements of Subsection (2):
332          (a) inspect the physical facilities;
333          (b) inspect and copy records and documents;
334          (c) interview officers, employees, clients, family members of clients, and others; and
335          (d) observe the licensee in operation.
336          (4) An inspection conducted under Subsection (1) shall be during regular business
337     hours and may be announced or unannounced.
338          (5) The licensee shall make copies of inspection reports available to the public upon
339     request.
340          (6) The provisions of this section apply to on-site inspections and do not restrict the
341     office from contacting family members, neighbors, or other individuals, or from seeking
342     information from other sources to determine compliance with this chapter.
343          (7) Before October 1, 2021, and each third year after 2021, the office shall submit a
344     written report to the Social Services Appropriations Subcommittee describing the following
345     information:
346          (a) the number of congregate care programs operating in the state;
347          (b) an average of the actual cost to the office for an inspection described in Subsection
348     (1)(b);
349          (c) the amount of a fee increase, if any, necessary to cover the office's actual cost for an
350     inspection described in Subsection (1)(b);
351          (d) the number of inspections described in Subsection (1)(b) that the office conducted;
352     and
353          (e) the number of inspections described in Subsection (1)(c) another government entity
354     conducted.
355          (8) Before October 1 of each year, the office shall submit a written report to the Health
356     and Human Services Interim Committee describing the following information for the prior
357     fiscal year:
358          (a) the number of congregate care programs operating in the state;
359          (b) the number of critical incidents that occurred in a congregate care program;
360          (c) the number of children that died while residing in a congregate care program;
361          (d) the number of times a child residing in a congregate care program attempted
362     suicide;
363          (e) the number of administrative actions the office initiated against a congregate care
364     program, including:
365          (i) a brief description of the underlying violation leading to the action; and
366          (ii) the outcome of the administrative action if known, including any imposed fines or
367     license restrictions;
368          (f) the average number of out-of-state children residing in a congregate care program in
369     the state;
370          (g) the number of complaints the office receives regarding a congregate care program,
371     including how many complaints lead to an investigation; and
372          (h) any other information the office determines is relevant for protecting a child
373     residing in a congregate care program.
374          (9) The office shall make rules in accordance with Title 63G, Chapter 3, Utah
375     Administrative Rulemaking Act, for obtaining the information described in Subsections (7) and
376     (8).
377          Section 3. Section 62A-2-120 is amended to read:
378          62A-2-120. Background check -- Direct access to children or vulnerable adults.
379          (1) As used in this section:
380          (a) (i) "Applicant" means:
381          (A) the same as that term is defined in Section 62A-2-101;
382          (B) an individual who is associated with a licensee and has or will likely have direct
383     access to a child or a vulnerable adult;
384          (C) an individual who provides respite care to a foster parent or an adoptive parent on
385     more than one occasion;
386          (D) a department contractor;
387          (E) a guardian submitting an application on behalf of an individual, other than the child
388     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
389     older and resides in a home, that is licensed or certified by the office, with the child or
390     vulnerable adult who is receiving services; or
391          (F) a guardian submitting an application on behalf of an individual, other than the child
392     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
393     older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
394          (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
395     of the Division of Child and Family Services or the Division of Juvenile Justice Services.
396          (b) "Application" means a background screening application to the office.
397          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
398     Public Safety, created in Section 53-10-201.
399          (d) "Incidental care" means occasional care, not in excess of five hours per week and
400     never overnight, for a foster child.
401          (e) "Personal identifying information" means:
402          (i) current name, former names, nicknames, and aliases;
403          (ii) date of birth;
404          (iii) physical address and email address;
405          (iv) telephone number;
406          (v) driver license or other government-issued identification;
407          (vi) social security number;
408          (vii) only for applicants who are 18 years [of age] old or older, fingerprints, in a form
409     specified by the office; and
410          (viii) other information specified by the office by rule made in accordance with Title
411     63G, Chapter 3, Utah Administrative Rulemaking Act.
412          (2) (a) Except as provided in Subsection (13), an applicant or a representative shall
413     submit the following to the office:
414          (i) personal identifying information;
415          (ii) a fee established by the office under Section 63J-1-504; and
416          (iii) a disclosure form, specified by the office, for consent for:
417          (A) an initial background check upon submission of the information described under
418     this Subsection (2)(a);
419          (B) ongoing monitoring of fingerprints and registries until no longer associated with a
420     licensee for 90 days;
421          (C) a background check when the office determines that reasonable cause exists; and
422          (D) retention of personal identifying information, including fingerprints, for
423     monitoring and notification as described in Subsections (3)(d) and (4).
424          (b) In addition to the requirements described in Subsection (2)(a), if an applicant
425     resided outside of the United States and its territories during the five years immediately
426     preceding the day on which the information described in Subsection (2)(a) is submitted to the
427     office, the office may require the applicant to submit documentation establishing whether the
428     applicant was convicted of a crime during the time that the applicant resided outside of the
429     United States or its territories.
430          (3) The office:
431          (a) shall perform the following duties as part of a background check of an applicant:
432          (i) check state and regional criminal background databases for the applicant's criminal
433     history by:
434          (A) submitting personal identifying information to the bureau for a search; or
435          (B) using the applicant's personal identifying information to search state and regional
436     criminal background databases as authorized under Section 53-10-108;
437          (ii) submit the applicant's personal identifying information and fingerprints to the
438     bureau for a criminal history search of applicable national criminal background databases;
439          (iii) search the Department of Human Services, Division of Child and Family Services'
440     Licensing Information System described in Section 62A-4a-1006;
441          (iv) search the Department of Human Services, Division of Aging and Adult Services'
442     vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
443          (v) search the juvenile court records for substantiated findings of severe child abuse or
444     neglect described in Section 78A-6-323; and
445          (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
446     under Section 78A-6-209;
447          (b) shall conduct a background check of an applicant for an initial background check
448     upon submission of the information described under Subsection (2)(a);
449          (c) may conduct all or portions of a background check of an applicant, as provided by
450     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
451     Rulemaking Act:
452          (i) for an annual renewal; or
453          (ii) when the office determines that reasonable cause exists;
454          (d) may submit an applicant's personal identifying information, including fingerprints,
455     to the bureau for checking, retaining, and monitoring of state and national criminal background
456     databases and for notifying the office of new criminal activity associated with the applicant;
457          (e) shall track the status of an approved applicant under this section to ensure that an
458     approved applicant is not required to duplicate the submission of the applicant's fingerprints if
459     the applicant applies for:
460          (i) more than one license;
461          (ii) direct access to a child or a vulnerable adult in more than one human services
462     program; or
463          (iii) direct access to a child or a vulnerable adult under a contract with the department;
464          (f) shall track the status of each license and each individual with direct access to a child
465     or a vulnerable adult and notify the bureau within 90 days after the day on which the license
466     expires or the individual's direct access to a child or a vulnerable adult ceases;
467          (g) shall adopt measures to strictly limit access to personal identifying information
468     solely to the individuals responsible for processing and entering the applications for
469     background checks and to protect the security of the personal identifying information the office
470     reviews under this Subsection (3);
471          (h) as necessary to comply with the federal requirement to check a state's child abuse
472     and neglect registry regarding any individual working in a congregate care [setting that serves
473     children] program, shall:
474          (i) search the Department of Human Services, Division of Child and Family Services'
475     Licensing Information System described in Section 62A-4a-1006; and
476          (ii) require the child abuse and neglect registry be checked in each state where an
477     applicant resided at any time during the five years immediately preceding the day on which the
478     applicant submits the information described in Subsection (2)(a) to the office; and
479          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
480     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
481     checks.
482          (4) (a) With the personal identifying information the office submits to the bureau under
483     Subsection (3), the bureau shall check against state and regional criminal background databases
484     for the applicant's criminal history.
485          (b) With the personal identifying information and fingerprints the office submits to the
486     bureau under Subsection (3), the bureau shall check against national criminal background
487     databases for the applicant's criminal history.
488          (c) Upon direction from the office, and with the personal identifying information and
489     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
490          (i) maintain a separate file of the fingerprints for search by future submissions to the
491     local and regional criminal records databases, including latent prints; and
492          (ii) monitor state and regional criminal background databases and identify criminal
493     activity associated with the applicant.
494          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
495     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
496     Investigation Next Generation Identification System for the purpose of:
497          (i) being searched by future submissions to the national criminal records databases,
498     including the Federal Bureau of Investigation Next Generation Identification System and latent
499     prints; and
500          (ii) monitoring national criminal background databases and identifying criminal
501     activity associated with the applicant.
502          (e) The Bureau shall notify and release to the office all information of criminal activity
503     associated with the applicant.
504          (f) Upon notice from the office that a license has expired or an individual's direct
505     access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
506          (i) discard and destroy any retained fingerprints; and
507          (ii) notify the Federal Bureau of Investigation when the license has expired or an
508     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
509     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
510     Investigation Next Generation Identification System.
511          (5) (a) After conducting the background check described in Subsections (3) and (4), the
512     office shall deny an application to an applicant who, within three years before the day on which
513     the applicant submits information to the office under Subsection (2) for a background check,
514     has been convicted of any of the following, regardless of whether the offense is a felony, a
515     misdemeanor, or an infraction:
516          (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
517     animals, or bestiality;
518          (ii) a violation of any pornography law, including sexual exploitation of a minor;
519          (iii) prostitution;
520          (iv) an offense included in:
521          (A) Title 76, Chapter 5, Offenses Against the Person;
522          (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
523          (C) Title 76, Chapter 7, Offenses Against the Family;
524          (v) aggravated arson, as described in Section 76-6-103;
525          (vi) aggravated burglary, as described in Section 76-6-203;
526          (vii) aggravated robbery, as described in Section 76-6-302;
527          (viii) identity fraud crime, as described in Section 76-6-1102; or
528          (ix) a felony or misdemeanor offense committed outside of the state that, if committed
529     in the state, would constitute a violation of an offense described in Subsections (5)(a)(i)
530     through (viii).
531          (b) If the office denies an application to an applicant based on a conviction described in
532     Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
533     Subsection (6).
534          (c) If the applicant will be working in a program serving only adults whose only
535     impairment is a mental health diagnosis, including that of a serious mental health disorder,
536     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
537     do not apply, and the office shall conduct a comprehensive review as described in Subsection
538     (6).
539          (6) (a) The office shall conduct a comprehensive review of an applicant's background
540     check if the applicant:
541          (i) has an open court case or a conviction for any felony offense, not described in
542     Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on
543     which the applicant submits the application;
544          (ii) has an open court case or a conviction for a misdemeanor offense, not described in
545     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
546     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
547     on which the applicant submits information to the office under Subsection (2) for a background
548     check;
549          (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
550     than three years before the day on which the applicant submitted information under Subsection
551     (2)(a);
552          (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
553     described in Subsection (5)(a);
554          (v) has a listing in the Department of Human Services, Division of Child and Family
555     Services' Licensing Information System described in Section 62A-4a-1006;
556          (vi) has a listing in the Department of Human Services, Division of Aging and Adult
557     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
558     62A-3-311.1;
559          (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
560     or neglect described in Section 78A-6-323;
561          (viii) has a record of an adjudication in juvenile court for an act that, if committed by
562     an adult, would be a felony or misdemeanor, if the applicant is:
563          (A) under 28 years [of age] old; or
564          (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to,
565     or is currently subject to a plea in abeyance or diversion agreement for a felony or a
566     misdemeanor offense described in Subsection (5)(a);
567          (ix) has a pending charge for an offense described in Subsection (5)(a); or
568          (x) is an applicant described in Subsection (5)(c).
569          (b) The comprehensive review described in Subsection (6)(a) shall include an
570     examination of:
571          (i) the date of the offense or incident;
572          (ii) the nature and seriousness of the offense or incident;
573          (iii) the circumstances under which the offense or incident occurred;
574          (iv) the age of the perpetrator when the offense or incident occurred;
575          (v) whether the offense or incident was an isolated or repeated incident;
576          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
577     adult, including:
578          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
579          (B) sexual abuse;
580          (C) sexual exploitation; or
581          (D) negligent treatment;
582          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
583     treatment received, or additional academic or vocational schooling completed;
584          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
585     which the applicant is applying; and
586          (ix) any other pertinent information presented to or publicly available to the committee
587     members.
588          (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
589     office shall deny an application to an applicant if the office finds that approval would likely
590     create a risk of harm to a child or a vulnerable adult.
591          (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
592     office may not deny an application to an applicant solely because the applicant was convicted
593     of an offense that occurred 10 or more years before the day on which the applicant submitted
594     the information required under Subsection (2)(a) if:
595          (i) the applicant has not committed another misdemeanor or felony offense after the
596     day on which the conviction occurred; and
597          (ii) the applicant has never been convicted of an offense described in Subsection
598     (14)(c).
599          (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
600     office may make rules, consistent with this chapter, to establish procedures for the
601     comprehensive review described in this Subsection (6).
602          (7) Subject to Subsection (10), the office shall approve an application to an applicant
603     who is not denied under Subsection (5), (6), or [(13)] (14).
604          (8) (a) The office may conditionally approve an application of an applicant, for a
605     maximum of 60 days after the day on which the office sends written notice to the applicant
606     under Subsection (12), without requiring that the applicant be directly supervised, if the office:
607          (i) is awaiting the results of the criminal history search of national criminal background
608     databases; and
609          (ii) would otherwise approve an application of the applicant under Subsection (7).
610          (b) The office may conditionally approve an application of an applicant, for a
611     maximum of one year after the day on which the office sends written notice to the applicant
612     under Subsection (12), without requiring that the applicant be directly supervised if the office:
613          (i) is awaiting the results of an out-of-state registry for providers other than foster and
614     adoptive parents; and
615          (ii) would otherwise approve an application of the applicant under Subsection (7).
616          (c) Upon receiving the results of the criminal history search of a national criminal
617     background database, the office shall approve or deny the application of the applicant in
618     accordance with Subsections (5) through (7).
619          (9) A licensee or department contractor may not permit an individual to have direct
620     access to a child or a vulnerable adult unless, subject to Subsection (10):
621          (a) the individual is associated with the licensee or department contractor and:
622          (i) the individual's application is approved by the office under this section;
623          (ii) the individual's application is conditionally approved by the office under
624     Subsection (8); or
625          (iii) (A) the individual has submitted the background check information described in
626     Subsection (2) to the office;
627          (B) the office has not determined whether to approve the applicant's application; and
628          (C) the individual is directly supervised by an individual who has a current background
629     screening approval issued by the office under this section and is associated with the licensee or
630     department contractor;
631          (b) (i) the individual is associated with the licensee or department contractor;
632          (ii) the individual has a current background screening approval issued by the office
633     under this section;
634          (iii) one of the following circumstances, that the office has not yet reviewed under
635     Subsection (6), applies to the individual:
636          (A) the individual was charged with an offense described in Subsection (5)(a);
637          (B) the individual is listed in the Licensing Information System, described in Section
638     62A-4a-1006;
639          (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
640     database, described in Section 62A-3-311.1;
641          (D) the individual has a record in the juvenile court of a substantiated finding of severe
642     child abuse or neglect, described in Section 78A-6-323; or
643          (E) the individual has a record of an adjudication in juvenile court for an act that, if
644     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
645     or (6); and
646          (iv) the individual is directly supervised by an individual who:
647          (A) has a current background screening approval issued by the office under this
648     section; and
649          (B) is associated with the licensee or department contractor;
650          (c) the individual:
651          (i) is not associated with the licensee or department contractor; and
652          (ii) is directly supervised by an individual who:
653          (A) has a current background screening approval issued by the office under this
654     section; and
655          (B) is associated with the licensee or department contractor;
656          (d) the individual is the parent or guardian of the child, or the guardian of the
657     vulnerable adult;
658          (e) the individual is approved by the parent or guardian of the child, or the guardian of
659     the vulnerable adult, to have direct access to the child or the vulnerable adult;
660          (f) the individual is only permitted to have direct access to a vulnerable adult who
661     voluntarily invites the individual to visit; or
662          (g) the individual only provides incidental care for a foster child on behalf of a foster
663     parent who has used reasonable and prudent judgment to select the individual to provide the
664     incidental care for the foster child.
665          (10) An individual may not have direct access to a child or a vulnerable adult if the
666     individual is prohibited by court order from having that access.
667          (11) Notwithstanding any other provision of this section, an individual for whom the
668     office denies an application may not have direct access to a child or vulnerable adult unless the
669     office approves a subsequent application by the individual.
670          (12) (a) Within 30 days after the day on which the office receives the background
671     check information for an applicant, the office shall give notice of the clearance status to:
672          (i) the applicant, and the licensee or department contractor, of the office's decision
673     regarding the background check and findings; and
674          (ii) the applicant of any convictions and potentially disqualifying charges and
675     adjudications found in the search.
676          (b) With the notice described in Subsection (12)(a), the office shall also give the
677     applicant the details of any comprehensive review conducted under Subsection (6).
678          (c) If the notice under Subsection (12)(a) states that the applicant's application is
679     denied, the notice shall further advise the applicant that the applicant may, under Subsection
680     62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
681     challenge the office's decision.
682          (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
683     office shall make rules, consistent with this chapter:
684          (i) defining procedures for the challenge of the office's background check decision
685     described in Subsection (12)(c); and
686          (ii) expediting the process for renewal of a license under the requirements of this
687     section and other applicable sections.
688          (13) An individual or a department contractor who provides services in an adults only
689     substance use disorder program, as defined by rule, is exempt from this section. This
690     exemption does not extend to a program director or a member, as defined by Section
691     62A-2-108, of the program.
692          (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
693     of this section, if the background check of an applicant is being conducted for the purpose of
694     giving clearance status to an applicant seeking a position in a congregate care [facility]
695     program, an applicant for a one-time adoption, an applicant seeking to provide a prospective
696     foster home, or an applicant seeking to provide a prospective adoptive home, the office shall:
697          (i) check the child abuse and neglect registry in each state where each applicant resided
698     in the five years immediately preceding the day on which the applicant applied to be a foster
699     parent or adoptive parent, to determine whether the prospective foster parent or prospective
700     adoptive parent is listed in the registry as having a substantiated or supported finding of child
701     abuse or neglect; and
702          (ii) check the child abuse and neglect registry in each state where each adult living in
703     the home of the applicant described in Subsection (14)(a)(i) resided in the five years
704     immediately preceding the day on which the applicant applied to be a foster parent or adoptive
705     parent, to determine whether the adult is listed in the registry as having a substantiated or
706     supported finding of child abuse or neglect.
707          (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
708          (i) federal law or rule permits otherwise; or
709          (ii) the requirements would prohibit the Division of Child and Family Services or a
710     court from placing a child with:
711          (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
712          (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
713     or 78A-6-307.5, pending completion of the background check described in Subsection (5).
714          (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an
715     applicant seeking a position in a congregate care [facility] program, an applicant for a one-time
716     adoption, an applicant to become a prospective foster parent, or an applicant to become a
717     prospective adoptive parent if the applicant has been convicted of:
718          (i) a felony involving conduct that constitutes any of the following:
719          (A) child abuse, as described in Section 76-5-109;
720          (B) commission of domestic violence in the presence of a child, as described in Section
721     76-5-109.1;
722          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
723          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
724          (E) aggravated murder, as described in Section 76-5-202;
725          (F) murder, as described in Section 76-5-203;
726          (G) manslaughter, as described in Section 76-5-205;
727          (H) child abuse homicide, as described in Section 76-5-208;
728          (I) homicide by assault, as described in Section 76-5-209;
729          (J) kidnapping, as described in Section 76-5-301;
730          (K) child kidnapping, as described in Section 76-5-301.1;
731          (L) aggravated kidnapping, as described in Section 76-5-302;
732          (M) human trafficking of a child, as described in Section 76-5-308.5;
733          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
734          (O) sexual exploitation of a minor, as described in Section 76-5b-201;
735          (P) aggravated arson, as described in Section 76-6-103;
736          (Q) aggravated burglary, as described in Section 76-6-203;
737          (R) aggravated robbery, as described in Section 76-6-302; or
738          (S) domestic violence, as described in Section 77-36-1; or
739          (ii) an offense committed outside the state that, if committed in the state, would
740     constitute a violation of an offense described in Subsection (14)(c)(i).
741          (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
742     license renewal to a prospective foster parent or a prospective adoptive parent if, within the five
743     years immediately preceding the day on which the individual's application or license would
744     otherwise be approved, the applicant was convicted of a felony involving conduct that
745     constitutes a violation of any of the following:
746          (i) aggravated assault, as described in Section 76-5-103;
747          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
748          (iii) mayhem, as described in Section 76-5-105;
749          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
750          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
751          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
752     Act;
753          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
754     Precursor Act; or
755          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
756          (e) In addition to the circumstances described in Subsection (6)(a), the office shall
757     conduct the comprehensive review of an applicant's background check pursuant to this section
758     if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
759     child abuse and neglect registry of another state as having a substantiated or supported finding
760     of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.