This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 9, 2021 at 11:27 AM by lpoole.
Senator Michael K. McKell proposes the following substitute bill:


1     
HUMAN SERVICES PROGRAM AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Michael K. McKell

5     
House Sponsor: Brady Brammer

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions related to human services programs.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     provides incident reporting requirements for persons licensed by the Office of
14     Licensing;
15          ▸     requires the Office of Licensing to review certain policies and procedures
16     established by a human services program;
17          ▸     requires a human services program to publicly post the Office of Licensing's contact
18     information;
19          ▸     requires the Office of Licensing to inspect each congregate care program multiple
20     times a year;
21          ▸     describes when a congregate care program may use a restraint or seclusion;
22          ▸     requires a congregate care program to maintain suicide prevention policies;
23          ▸     prohibits a human services program from engaging in sex and gender based
24     discrimination; and
25          ▸     makes technical changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          None
30     Utah Code Sections Affected:
31     AMENDS:
32          62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last
33     amended by Coordination Clause, Laws of Utah 2019, Chapter 193
34          62A-2-106, as last amended by Laws of Utah 2017, Chapter 148
35          62A-2-118, as last amended by Laws of Utah 2005, Chapter 188
36          62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last
37     amended by Coordination Clause, Laws of Utah 2020, Chapter 225
38     ENACTS:
39          62A-2-123, Utah Code Annotated 1953
40          62A-2-124, Utah Code Annotated 1953
41     

42     Be it enacted by the Legislature of the state of Utah:
43          Section 1. Section 62A-2-101 is amended to read:
44          62A-2-101. Definitions.
45          As used in this chapter:
46          (1) "Adult day care" means nonresidential care and supervision:
47          (a) for three or more adults for at least four but less than 24 hours a day; and
48          (b) that meets the needs of functionally impaired adults through a comprehensive
49     program that provides a variety of health, social, recreational, and related support services in a
50     protective setting.
51          (2) "Applicant" means a person who applies for an initial license or a license renewal
52     under this chapter.
53          (3) (a) "Associated with the licensee" means that an individual is:
54          (i) affiliated with a licensee as an owner, director, member of the governing body,
55     employee, agent, provider of care, department contractor, or volunteer; or
56          (ii) applying to become affiliated with a licensee in a capacity described in Subsection
57     (3)(a)(i).
58          (b) "Associated with the licensee" does not include:
59          (i) service on the following bodies, unless that service includes direct access to a child
60     or a vulnerable adult:
61          (A) a local mental health authority described in Section 17-43-301;
62          (B) a local substance abuse authority described in Section 17-43-201; or
63          (C) a board of an organization operating under a contract to provide mental health or
64     substance abuse programs, or services for the local mental health authority or substance abuse
65     authority; or
66          (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
67     at all times.
68          (4) (a) "Boarding school" means a private school that:
69          (i) uses a regionally accredited education program;
70          (ii) provides a residence to the school's students:
71          (A) for the purpose of enabling the school's students to attend classes at the school; and
72          (B) as an ancillary service to educating the students at the school;
73          (iii) has the primary purpose of providing the school's students with an education, as
74     defined in Subsection (4)(b)(i); and
75          (iv) (A) does not provide the treatment or services described in Subsection [(33)(a)]
76     (36)(a); or
77          (B) provides the treatment or services described in Subsection [(33)(a)] (36)(a) on a
78     limited basis, as described in Subsection (4)(b)(ii).
79          (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for
80     one or more of grades kindergarten through 12th grade.
81          (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or
82     services described in Subsection [(33)(a)] (36)(a) on a limited basis if:
83          (A) the treatment or services described in Subsection [(33)(a)] (36)(a) are provided
84     only as an incidental service to a student; and
85          (B) the school does not:
86          (I) specifically solicit a student for the purpose of providing the treatment or services
87     described in Subsection [(33)(a)] (36)(a); or
88          (II) have a primary purpose of providing the treatment or services described in
89     Subsection [(33)(a)] (36)(a).
90          (c) "Boarding school" does not include a therapeutic school.
91          (5) "Child" means [a person] an individual under 18 years [of age] old.
92          (6) "Child placing" means receiving, accepting, or providing custody or care for any
93     child, temporarily or permanently, for the purpose of:
94          (a) finding a person to adopt the child;
95          (b) placing the child in a home for adoption; or
96          (c) foster home placement.
97          (7) "Child-placing agency" means a person that engages in child placing.
98          (8) "Client" means an individual who receives or has received services from a licensee.
99          (9) "Congregate care program" means any of the following that provide services to a
100     child:
101          (a) an outdoor youth program;
102          (b) a residential support program;
103          (c) a residential treatment program; or
104          (d) a therapeutic school.
105          [(9)] (10) "Day treatment" means specialized treatment that is provided to:
106          (a) a client less than 24 hours a day; and
107          (b) four or more persons who:
108          (i) are unrelated to the owner or provider; and
109          (ii) have emotional, psychological, developmental, physical, or behavioral
110     dysfunctions, impairments, or chemical dependencies.
111          [(10)] (11) "Department" means the Department of Human Services.
112          [(11)] (12) "Department contractor" means an individual who:
113          (a) provides services under a contract with the department; and
114          (b) due to the contract with the department, has or will likely have direct access to a
115     child or vulnerable adult.
116          [(12)] (13) "Direct access" means that an individual has, or likely will have:
117          (a) contact with or access to a child or vulnerable adult that provides the individual
118     with an opportunity for personal communication or touch; or
119          (b) an opportunity to view medical, financial, or other confidential personal identifying
120     information of the child, the child's parents or legal guardians, or the vulnerable adult.
121          [(13)] (14) "Directly supervised" means that an individual is being supervised under
122     the uninterrupted visual and auditory surveillance of another individual who has a current
123     background screening approval issued by the office.
124          [(14)] (15) "Director" means the director of the Office of Licensing.
125          [(15)] (16) "Domestic violence" means the same as that term is defined in Section
126     77-36-1.
127          [(16)] (17) "Domestic violence treatment program" means a nonresidential program
128     designed to provide psychological treatment and educational services to perpetrators and
129     victims of domestic violence.
130          [(17)] (18) "Elder adult" means a person 65 years [of age] old or older.
131          [(18)] (19) "Executive director" means the executive director of the department.
132          [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office
133     of Licensing for the full-time substitute care of a child.
134          [(20)] (21) "Health benefit plan" means the same as that term is defined in Section
135     31A-1-301.
136          [(21)] (22) "Health care provider" means the same as that term is defined in Section
137     78B-3-403.
138          [(22)] (23) "Health insurer" means the same as that term is defined in Section
139     31A-22-615.5.
140          [(23)] (24) (a) "Human services program" means [a]:
141          (i) a foster home;
142          (ii) a therapeutic school;
143          (iii) a youth program;
144          (iv) an outdoor youth program;
145          (v) a residential treatment program;
146          (vi) a residential support program;
147          [(iv)] (vii) a resource family home;
148          [(v)] (viii) a recovery residence; or
149          [(vi)] (ix) a facility or program that provides:
150          [(A) secure treatment;]
151          [(B) inpatient treatment;]
152          [(C) residential treatment;]
153          [(D) residential support;]
154          [(E)] (A) adult day care;
155          [(F)] (B) day treatment;
156          [(G)] (C) outpatient treatment;
157          [(H)] (D) domestic violence treatment;
158          [(I)] (E) child-placing services;
159          [(J)] (F) social detoxification; or
160          [(K)] (G) any other human services that are required by contract with the department to
161     be licensed with the department.
162          (b) "Human services program" does not include:
163          (i) a boarding school; or
164          (ii) a residential, vocational and life skills program, as defined in Section 13-53-102.
165          [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec.
166     1903.
167          [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec.
168     1151.
169          [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec.
170     1903.
171          (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or
172     care for an individual who:
173          (a) cannot live independently or in a less restrictive environment; and
174          (b) requires, without the individual's consent or control, the use of locked doors to care
175     for the individual.
176          [(27)] (29) "Licensee" means an individual or a human services program licensed by
177     the office.
178          [(28)] (30) "Local government" means a city, town, metro township, or county.
179          [(29)] (31) "Minor" has the same meaning as "child."
180          [(30)] (32) "Office" means the Office of Licensing within the Department of Human
181     Services.
182          (33) "Outdoor youth program" means a program that provides:
183          (a) services to a child that has:
184          (i) a chemical dependency; or
185          (ii) a dysfunction or impairment that is emotional, psychological, developmental, or
186     behavioral;
187          (b) a 24-hour outdoor group living environment; and
188          (c) (i) regular therapy, including group, individual, or supportive family therapy; or
189          (ii) informal therapy or similar services, including wilderness therapy, adventure
190     therapy, or outdoor behavioral healthcare.
191          [(31)] (34) "Outpatient treatment" means individual, family, or group therapy or
192     counseling designed to improve and enhance social or psychological functioning for those
193     whose physical and emotional status allows them to continue functioning in their usual living
194     environment.
195          [(32)] (35) "Practice group" or "group practice" means two or more health care
196     providers legally organized as a partnership, professional corporation, or similar association,
197     for which:
198          (a) substantially all of the services of the health care providers who are members of the
199     group are provided through the group and are billed in the name of the group and amounts
200     received are treated as receipts of the group; and
201          (b) the overhead expenses of and the income from the practice are distributed in
202     accordance with methods previously determined by members of the group.
203          [(33)] (36) (a) "Recovery residence" means a home, residence, or facility that meets at
204     least two of the following requirements:
205          (i) provides a supervised living environment for individuals recovering from a
206     substance use disorder;
207          (ii) provides a living environment in which more than half of the individuals in the
208     residence are recovering from a substance use disorder;
209          (iii) provides or arranges for residents to receive services related to their recovery from
210     a substance use disorder, either on or off site;
211          (iv) is held out as a living environment in which individuals recovering from substance
212     abuse disorders live together to encourage continued sobriety; or
213          (v) (A) receives public funding; or
214          (B) is run as a business venture, either for-profit or not-for-profit.
215          (b) "Recovery residence" does not mean:
216          (i) a residential treatment program;
217          (ii) residential support; or
218          (iii) a home, residence, or facility, in which:
219          (A) residents, by their majority vote, establish, implement, and enforce policies
220     governing the living environment, including the manner in which applications for residence are
221     approved and the manner in which residents are expelled;
222          (B) residents equitably share rent and housing-related expenses; and
223          (C) a landlord, owner, or operator does not receive compensation, other than fair
224     market rental income, for establishing, implementing, or enforcing policies governing the
225     living environment.
226          [(34)] (37) "Regular business hours" means:
227          (a) the hours during which services of any kind are provided to a client; or
228          (b) the hours during which a client is present at the facility of a licensee.
229          [(35)] (38) (a) "Residential support program" means [arranging for or providing] a
230     program that arranges for or provides the necessities of life as a protective service to
231     individuals or families who have a disability or who are experiencing a dislocation or
232     emergency that prevents them from providing these services for themselves or their families.
233          (b) "Residential support program" includes [providing] a program that provides a
234     supervised living environment for [persons] individuals with dysfunctions or impairments that
235     are:
236          (i) emotional;
237          (ii) psychological;
238          (iii) developmental; or
239          (iv) behavioral.
240          (c) Treatment is not a necessary component of a residential support program.
241          (d) "Residential support program" does not include:
242          (i) a recovery residence; or
243          (ii) a program that provides residential services that are performed:
244          (A) exclusively under contract with the department and provided to individuals through
245     the Division of Services for People with Disabilities; or
246          (B) in a facility that serves fewer than four individuals.
247          [(36)] (39) (a) "Residential treatment" means a 24-hour group living environment for
248     four or more individuals unrelated to the owner or provider that offers room or board and
249     specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or
250     habilitation services for persons with emotional, psychological, developmental, or behavioral
251     dysfunctions, impairments, or chemical dependencies.
252          (b) "Residential treatment" does not include a:
253          (i) boarding school;
254          (ii) foster home; or
255          (iii) recovery residence.
256          [(37)] (40) "Residential treatment program" means a [human services program] a
257     program or facility that provides:
258          (a) residential treatment; or
259          (b) intermediate secure treatment.
260          [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for
261     persons whose current functioning is such that they cannot live independently or in a less
262     restrictive environment.]
263          [(b) "Secure treatment" differs from residential treatment to the extent that it requires
264     intensive supervision, locked doors, and other security measures that are imposed on residents
265     with neither their consent nor control.]
266          (41) "Seclusion" means the involuntary confinement of an individual in a room or an
267     area:
268          (a) away from the individual's peers; and
269          (b) in a manner that physically prevents the individual from leaving the room or area.
270          [(39)] (42) "Social detoxification" means short-term residential services for persons
271     who are experiencing or have recently experienced drug or alcohol intoxication, that are
272     provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care
273     Facility Licensing and Inspection Act, and that include:
274          (a) room and board for persons who are unrelated to the owner or manager of the
275     facility;
276          (b) specialized rehabilitation to acquire sobriety; and
277          (c) aftercare services.
278          [(40)] (43) "Substance abuse disorder" or "substance use disorder" mean the same as
279     "substance use disorder" is defined in Section 62A-15-1202.
280          [(41)] (44) "Substance abuse treatment program" or "substance use disorder treatment
281     program" means a program:
282          (a) designed to provide:
283          (i) specialized drug or alcohol treatment;
284          (ii) rehabilitation; or
285          (iii) habilitation services; and
286          (b) that provides the treatment or services described in Subsection [(41)] (44)(a) to
287     persons with:
288          (i) a diagnosed substance use disorder; or
289          (ii) chemical dependency disorder.
290          [(42)] (45) "Therapeutic school" means a residential group living facility:
291          (a) for four or more individuals that are not related to:
292          (i) the owner of the facility; or
293          (ii) the primary service provider of the facility;
294          (b) that serves students who have a history of failing to function:
295          (i) at home;
296          (ii) in a public school; or
297          (iii) in a nonresidential private school; and
298          (c) that offers:
299          (i) room and board; and
300          (ii) an academic education integrated with:
301          (A) specialized structure and supervision; or
302          (B) services or treatment related to:
303          (I) a disability;
304          (II) emotional development;
305          (III) behavioral development;
306          (IV) familial development; or
307          (V) social development.
308          [(43)] (46) "Unrelated persons" means persons other than parents, legal guardians,
309     grandparents, brothers, sisters, uncles, or aunts.
310          [(44)] (47) "Vulnerable adult" means an elder adult or an adult who has a temporary or
311     permanent mental or physical impairment that substantially affects the person's ability to:
312          (a) provide personal protection;
313          (b) provide necessities such as food, shelter, clothing, or mental or other health care;
314          (c) obtain services necessary for health, safety, or welfare;
315          (d) carry out the activities of daily living;
316          (e) manage the adult's own resources; or
317          (f) comprehend the nature and consequences of remaining in a situation of abuse,
318     neglect, or exploitation.
319          [(45)] (48) (a) "Youth program" means a [nonresidential] program designed to provide
320     behavioral, substance abuse, or mental health services to minors that:
321          (i) serves adjudicated or nonadjudicated youth;
322          (ii) charges a fee for its services;
323          (iii) may [or may not] provide host homes or other arrangements for overnight
324     accommodation of the youth;
325          (iv) may [or may not] provide all or part of its services in the outdoors;
326          (v) may [or may not] limit or censor access to parents or guardians; and
327          (vi) prohibits or restricts a minor's ability to leave the program at any time of the
328     minor's own free will.
329          (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl
330     Scouts, 4-H, and other such organizations.
331          Section 2. Section 62A-2-106 is amended to read:
332          62A-2-106. Office responsibilities.
333          (1) Subject to the requirements of federal and state law, the office shall:
334          (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
335     Rulemaking Act, to establish:
336          (i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for
337     licensees, that shall be limited to:
338          (A) fire safety;
339          (B) food safety;
340          (C) sanitation;
341          (D) infectious disease control;
342          (E) safety of the:
343          (I) physical facility and grounds; and
344          (II) area and community surrounding the physical facility;
345          (F) transportation safety;
346          (G) emergency preparedness and response;
347          (H) the administration of medical standards and procedures, consistent with the related
348     provisions of this title;
349          (I) staff and client safety and protection;
350          (J) the administration and maintenance of client and service records;
351          (K) staff qualifications and training, including standards for permitting experience to
352     be substituted for education, unless prohibited by law;
353          (L) staff to client ratios;
354          (M) access to firearms; and
355          (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud;
356          (ii) basic health and safety standards for therapeutic schools, that shall be limited to:
357          (A) fire safety, except that the standards are limited to those required by law or rule
358     under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act;
359          (B) food safety;
360          (C) sanitation;
361          (D) infectious disease control, except that the standards are limited to:
362          (I) those required by law or rule under Title 26, Utah Health Code, or Title 26A, Local
363     Health Authorities; and
364          (II) requiring a separate room for clients who are sick;
365          (E) safety of the physical facility and grounds, except that the standards are limited to
366     those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks
367     Act;
368          (F) transportation safety;
369          (G) emergency preparedness and response;
370          (H) access to appropriate medical care, including:
371          (I) subject to the requirements of law, designation of a person who is authorized to
372     dispense medication; and
373          (II) storing, tracking, and securing medication;
374          (I) staff and client safety and protection that permits the school to provide for the direct
375     supervision of clients at all times;
376          (J) the administration and maintenance of client and service records;
377          (K) staff qualifications and training, including standards for permitting experience to
378     be substituted for education, unless prohibited by law;
379          (L) staff to client ratios;
380          (M) access to firearms; and
381          (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud;
382          (iii) procedures and standards for permitting a licensee to:
383          (A) provide in the same facility and under the same conditions as children, residential
384     treatment services to a person 18 years old or older who:
385          (I) begins to reside at the licensee's residential treatment facility before the person's
386     18th birthday;
387          (II) has resided at the licensee's residential treatment facility continuously since the
388     time described in Subsection (1)(a)(iii)(A)(I);
389          (III) has not completed the course of treatment for which the person began residing at
390     the licensee's residential treatment facility; and
391          (IV) voluntarily consents to complete the course of treatment described in Subsection
392     (1)(a)(iii)(A)(III); or
393          (B) (I) provide residential treatment services to a child who is:
394          (Aa) [12 years old or older] at least 12 years old or, as approved by the office, younger
395     than 12 years old; and
396          (Bb) under the custody of the Department of Human Services, or one of its divisions;
397     and
398          (II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I),
399     residential treatment services to a person who is:
400          (Aa) at least 18 years old, but younger than 21 years old; and
401          (Bb) under the custody of the Department of Human Services, or one of its divisions;
402          (iv) minimum administration and financial requirements for licensees;
403          (v) guidelines for variances from rules established under this Subsection (1);
404          (vi) ethical standards, as described in Subsection 78B-6-106(3), and minimum
405     responsibilities of a child-placing agency that provides adoption services and that is licensed
406     under this chapter;
407          (vii) what constitutes an "outpatient treatment program" for purposes of this chapter;
408          (viii) a procedure requiring a licensee to provide an insurer the licensee's records
409     related to any services or supplies billed to the insurer, and a procedure allowing the licensee
410     and the insurer to contact the Insurance Department to resolve any disputes;
411          (ix) a protocol for the office to investigate and process complaints about licensees;
412     [and]
413          (x) a procedure for [licensees to report incidents;] a licensee to:
413a     Ŝ→      (A) report the use of a restraint or seclusion within one business day after the day on
413b     which the use of the restraint or seclusion occurs; and ←Ŝ
414          Ŝ→ [(A)] (B) ←Ŝ report a critical incident within one business day after the day on which
414a     the
415     incident occurs; Ŝ→ [and
416          (B) provide a monthly report of all incidents during which the licensee used a restraint
417     or seclusion;] ←Ŝ
418          (xi) guidelines for the policies and procedures described in Sections 62A-2-123 and
419     62A-2-124;
420          (xii) a procedure for the office to review and approve the policies and procedures
421     described in Sections 62A-2-123 and 62A-2-124; and
422          (xiii) a requirement that each human services program publicly post information that
423     informs an individual how to submit a complaint about a human services program to the office.
424          (b) enforce rules relating to the office;
425          (c) issue licenses in accordance with this chapter;
426          (d) if the United States Department of State executes an agreement with the office that
427     designates the office to act as an accrediting entity in accordance with the Intercountry
428     Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to
429     provide intercountry adoption services pursuant to:
430          (i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and
431          (ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L.
432     No. 106-279;
433          (e) make rules to implement the provisions of Subsection (1)(d);
434          (f) conduct surveys and inspections of licensees and facilities in accordance with
435     Section 62A-2-118;
436          (g) collect licensure fees;
437          (h) notify licensees of the name of a person within the department to contact when
438     filing a complaint;
439          (i) investigate complaints regarding any licensee or human services program;
440          (j) have access to all records, correspondence, and financial data required to be
441     maintained by a licensee;
442          (k) have authority to interview any client, family member of a client, employee, or
443     officer of a licensee;
444          (l) have authority to deny, condition, revoke, suspend, or extend any license issued by
445     the department under this chapter by following the procedures and requirements of Title 63G,
446     Chapter 4, Administrative Procedures Act;
447          (m) electronically post notices of agency action issued to a human services program,
448     with the exception of a foster home, on the office's website, in accordance with Title 63G,
449     Chapter 2, Government Records Access and Management Act; and
450          (n) upon receiving a local government's request under Section 62A-2-108.4, notify the
451     local government of new human services program license applications, except for foster
452     homes, for human services programs located within the local government's jurisdiction.
453          (2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a
454     licensee to establish and comply with an emergency response plan that requires clients and staff
455     to:
456          (a) immediately report to law enforcement any significant criminal activity, as defined
457     by rule, committed:
458          (i) on the premises where the licensee operates its human services program;
459          (ii) by or against its clients; or
460          (iii) by or against a staff member while the staff member is on duty;
461          (b) immediately report to emergency medical services any medical emergency, as
462     defined by rule:
463          (i) on the premises where the licensee operates its human services program;
464          (ii) involving its clients; or
465          (iii) involving a staff member while the staff member is on duty; and
466          (c) immediately report other emergencies that occur on the premises where the licensee
467     operates its human services program to the appropriate emergency services agency.
468          Section 3. Section 62A-2-118 is amended to read:
469          62A-2-118. Administrative inspections.
470          (1) (a) [The] Subject to Subsection (1)(b), the office may, for the purpose of
471     ascertaining compliance with this chapter, enter and inspect on a routine basis the facility of a
472     licensee.
473          (b) Ŝ→ (i) ←Ŝ The office shall enter and inspect a congregate care program at least once
473a     each
474     calendar quarter.
474a     Ŝ→ (ii) At least two of the inspections described in Subsection (1)(b)(i) shall be unannounced.
474b      ←Ŝ
475          (c) If another government entity conducts an inspection that is substantially similar to
476     an inspection conducted by the office, the office may conclude the inspection satisfies an
477     inspection described in Subsection (1)(b).
478          (2) Before conducting an inspection under Subsection (1), the office shall, after
479     identifying the person in charge:
480          (a) give proper identification;
481          (b) request to see the applicable license;
482          (c) describe the nature and purpose of the inspection; and
483          (d) if necessary, explain the authority of the office to conduct the inspection and the
484     penalty for refusing to permit the inspection as provided in Section 62A-2-116.
485          (3) In conducting an inspection under Subsection (1), the office may, after meeting the
486     requirements of Subsection (2):
487          (a) inspect the physical facilities;
488          (b) inspect and copy records and documents;
489          (c) interview officers, employees, clients, family members of clients, and others; and
490          (d) observe the licensee in operation.
491          (4) An inspection conducted under Subsection (1) shall be during regular business
492     hours and may be announced or unannounced.
493          (5) The licensee shall make copies of inspection reports available to the public upon
494     request.
495          (6) The provisions of this section apply to on-site inspections and do not restrict the
496     office from contacting family members, neighbors, or other individuals, or from seeking
497     information from other sources to determine compliance with this chapter.
498          Section 4. Section 62A-2-120 is amended to read:
499          62A-2-120. Background check -- Direct access to children or vulnerable adults.
500          (1) As used in this section:
501          (a) (i) "Applicant" means:
502          (A) the same as that term is defined in Section 62A-2-101;
503          (B) an individual who is associated with a licensee and has or will likely have direct
504     access to a child or a vulnerable adult;
505          (C) an individual who provides respite care to a foster parent or an adoptive parent on
506     more than one occasion;
507          (D) a department contractor;
508          (E) a guardian submitting an application on behalf of an individual, other than the child
509     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
510     older and resides in a home, that is licensed or certified by the office, with the child or
511     vulnerable adult who is receiving services; or
512          (F) a guardian submitting an application on behalf of an individual, other than the child
513     or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or
514     older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
515          (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
516     of the Division of Child and Family Services or the Division of Juvenile Justice Services.
517          (b) "Application" means a background screening application to the office.
518          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
519     Public Safety, created in Section 53-10-201.
520          (d) "Incidental care" means occasional care, not in excess of five hours per week and
521     never overnight, for a foster child.
522          (e) "Personal identifying information" means:
523          (i) current name, former names, nicknames, and aliases;
524          (ii) date of birth;
525          (iii) physical address and email address;
526          (iv) telephone number;
527          (v) driver license or other government-issued identification;
528          (vi) social security number;
529          (vii) only for applicants who are 18 years [of age] old or older, fingerprints, in a form
530     specified by the office; and
531          (viii) other information specified by the office by rule made in accordance with Title
532     63G, Chapter 3, Utah Administrative Rulemaking Act.
533          (2) (a) Except as provided in Subsection (13), an applicant or a representative shall
534     submit the following to the office:
535          (i) personal identifying information;
536          (ii) a fee established by the office under Section 63J-1-504; and
537          (iii) a disclosure form, specified by the office, for consent for:
538          (A) an initial background check upon submission of the information described under
539     this Subsection (2)(a);
540          (B) ongoing monitoring of fingerprints and registries until no longer associated with a
541     licensee for 90 days;
542          (C) a background check when the office determines that reasonable cause exists; and
543          (D) retention of personal identifying information, including fingerprints, for
544     monitoring and notification as described in Subsections (3)(d) and (4).
545          (b) In addition to the requirements described in Subsection (2)(a), if an applicant
546     resided outside of the United States and its territories during the five years immediately
547     preceding the day on which the information described in Subsection (2)(a) is submitted to the
548     office, the office may require the applicant to submit documentation establishing whether the
549     applicant was convicted of a crime during the time that the applicant resided outside of the
550     United States or its territories.
551          (3) The office:
552          (a) shall perform the following duties as part of a background check of an applicant:
553          (i) check state and regional criminal background databases for the applicant's criminal
554     history by:
555          (A) submitting personal identifying information to the bureau for a search; or
556          (B) using the applicant's personal identifying information to search state and regional
557     criminal background databases as authorized under Section 53-10-108;
558          (ii) submit the applicant's personal identifying information and fingerprints to the
559     bureau for a criminal history search of applicable national criminal background databases;
560          (iii) search the Department of Human Services, Division of Child and Family Services'
561     Licensing Information System described in Section 62A-4a-1006;
562          (iv) search the Department of Human Services, Division of Aging and Adult Services'
563     vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
564          (v) search the juvenile court records for substantiated findings of severe child abuse or
565     neglect described in Section 78A-6-323; and
566          (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
567     under Section 78A-6-209;
568          (b) shall conduct a background check of an applicant for an initial background check
569     upon submission of the information described under Subsection (2)(a);
570          (c) may conduct all or portions of a background check of an applicant, as provided by
571     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
572     Rulemaking Act:
573          (i) for an annual renewal; or
574          (ii) when the office determines that reasonable cause exists;
575          (d) may submit an applicant's personal identifying information, including fingerprints,
576     to the bureau for checking, retaining, and monitoring of state and national criminal background
577     databases and for notifying the office of new criminal activity associated with the applicant;
578          (e) shall track the status of an approved applicant under this section to ensure that an
579     approved applicant is not required to duplicate the submission of the applicant's fingerprints if
580     the applicant applies for:
581          (i) more than one license;
582          (ii) direct access to a child or a vulnerable adult in more than one human services
583     program; or
584          (iii) direct access to a child or a vulnerable adult under a contract with the department;
585          (f) shall track the status of each license and each individual with direct access to a child
586     or a vulnerable adult and notify the bureau within 90 days after the day on which the license
587     expires or the individual's direct access to a child or a vulnerable adult ceases;
588          (g) shall adopt measures to strictly limit access to personal identifying information
589     solely to the individuals responsible for processing and entering the applications for
590     background checks and to protect the security of the personal identifying information the office
591     reviews under this Subsection (3);
592          (h) as necessary to comply with the federal requirement to check a state's child abuse
593     and neglect registry regarding any individual working in a congregate care [setting that serves
594     children] program, shall:
595          (i) search the Department of Human Services, Division of Child and Family Services'
596     Licensing Information System described in Section 62A-4a-1006; and
597          (ii) require the child abuse and neglect registry be checked in each state where an
598     applicant resided at any time during the five years immediately preceding the day on which the
599     applicant submits the information described in Subsection (2)(a) to the office; and
600          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
601     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
602     checks.
603          (4) (a) With the personal identifying information the office submits to the bureau under
604     Subsection (3), the bureau shall check against state and regional criminal background databases
605     for the applicant's criminal history.
606          (b) With the personal identifying information and fingerprints the office submits to the
607     bureau under Subsection (3), the bureau shall check against national criminal background
608     databases for the applicant's criminal history.
609          (c) Upon direction from the office, and with the personal identifying information and
610     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
611          (i) maintain a separate file of the fingerprints for search by future submissions to the
612     local and regional criminal records databases, including latent prints; and
613          (ii) monitor state and regional criminal background databases and identify criminal
614     activity associated with the applicant.
615          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
616     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
617     Investigation Next Generation Identification System for the purpose of:
618          (i) being searched by future submissions to the national criminal records databases,
619     including the Federal Bureau of Investigation Next Generation Identification System and latent
620     prints; and
621          (ii) monitoring national criminal background databases and identifying criminal
622     activity associated with the applicant.
623          (e) The Bureau shall notify and release to the office all information of criminal activity
624     associated with the applicant.
625          (f) Upon notice from the office that a license has expired or an individual's direct
626     access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
627          (i) discard and destroy any retained fingerprints; and
628          (ii) notify the Federal Bureau of Investigation when the license has expired or an
629     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
630     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
631     Investigation Next Generation Identification System.
632          (5) (a) After conducting the background check described in Subsections (3) and (4), the
633     office shall deny an application to an applicant who, within three years before the day on which
634     the applicant submits information to the office under Subsection (2) for a background check,
635     has been convicted of any of the following, regardless of whether the offense is a felony, a
636     misdemeanor, or an infraction:
637          (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
638     animals, or bestiality;
639          (ii) a violation of any pornography law, including sexual exploitation of a minor;
640          (iii) prostitution;
641          (iv) an offense included in:
642          (A) Title 76, Chapter 5, Offenses Against the Person;
643          (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
644          (C) Title 76, Chapter 7, Offenses Against the Family;
645          (v) aggravated arson, as described in Section 76-6-103;
646          (vi) aggravated burglary, as described in Section 76-6-203;
647          (vii) aggravated robbery, as described in Section 76-6-302;
648          (viii) identity fraud crime, as described in Section 76-6-1102; or
649          (ix) a felony or misdemeanor offense committed outside of the state that, if committed
650     in the state, would constitute a violation of an offense described in Subsections (5)(a)(i)
651     through (viii).
652          (b) If the office denies an application to an applicant based on a conviction described in
653     Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
654     Subsection (6).
655          (c) If the applicant will be working in a program serving only adults whose only
656     impairment is a mental health diagnosis, including that of a serious mental health disorder,
657     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
658     do not apply, and the office shall conduct a comprehensive review as described in Subsection
659     (6).
660          (6) (a) The office shall conduct a comprehensive review of an applicant's background
661     check if the applicant:
662          (i) has an open court case or a conviction for any felony offense, not described in
663     Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on
664     which the applicant submits the application;
665          (ii) has an open court case or a conviction for a misdemeanor offense, not described in
666     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
667     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
668     on which the applicant submits information to the office under Subsection (2) for a background
669     check;
670          (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
671     than three years before the day on which the applicant submitted information under Subsection
672     (2)(a);
673          (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
674     described in Subsection (5)(a);
675          (v) has a listing in the Department of Human Services, Division of Child and Family
676     Services' Licensing Information System described in Section 62A-4a-1006;
677          (vi) has a listing in the Department of Human Services, Division of Aging and Adult
678     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
679     62A-3-311.1;
680          (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
681     or neglect described in Section 78A-6-323;
682          (viii) has a record of an adjudication in juvenile court for an act that, if committed by
683     an adult, would be a felony or misdemeanor, if the applicant is:
684          (A) under 28 years [of age] old; or
685          (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to,
686     or is currently subject to a plea in abeyance or diversion agreement for a felony or a
687     misdemeanor offense described in Subsection (5)(a);
688          (ix) has a pending charge for an offense described in Subsection (5)(a); or
689          (x) is an applicant described in Subsection (5)(c).
690          (b) The comprehensive review described in Subsection (6)(a) shall include an
691     examination of:
692          (i) the date of the offense or incident;
693          (ii) the nature and seriousness of the offense or incident;
694          (iii) the circumstances under which the offense or incident occurred;
695          (iv) the age of the perpetrator when the offense or incident occurred;
696          (v) whether the offense or incident was an isolated or repeated incident;
697          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
698     adult, including:
699          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
700          (B) sexual abuse;
701          (C) sexual exploitation; or
702          (D) negligent treatment;
703          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
704     treatment received, or additional academic or vocational schooling completed;
705          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
706     which the applicant is applying; and
707          (ix) any other pertinent information presented to or publicly available to the committee
708     members.
709          (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
710     office shall deny an application to an applicant if the office finds that approval would likely
711     create a risk of harm to a child or a vulnerable adult.
712          (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
713     office may not deny an application to an applicant solely because the applicant was convicted
714     of an offense that occurred 10 or more years before the day on which the applicant submitted
715     the information required under Subsection (2)(a) if:
716          (i) the applicant has not committed another misdemeanor or felony offense after the
717     day on which the conviction occurred; and
718          (ii) the applicant has never been convicted of an offense described in Subsection
719     (14)(c).
720          (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
721     office may make rules, consistent with this chapter, to establish procedures for the
722     comprehensive review described in this Subsection (6).
723          (7) Subject to Subsection (10), the office shall approve an application to an applicant
724     who is not denied under Subsection (5), (6), or [(13)] (14).
725          (8) (a) The office may conditionally approve an application of an applicant, for a
726     maximum of 60 days after the day on which the office sends written notice to the applicant
727     under Subsection (12), without requiring that the applicant be directly supervised, if the office:
728          (i) is awaiting the results of the criminal history search of national criminal background
729     databases; and
730          (ii) would otherwise approve an application of the applicant under Subsection (7).
731          (b) The office may conditionally approve an application of an applicant, for a
732     maximum of one year after the day on which the office sends written notice to the applicant
733     under Subsection (12), without requiring that the applicant be directly supervised if the office:
734          (i) is awaiting the results of an out-of-state registry for providers other than foster and
735     adoptive parents; and
736          (ii) would otherwise approve an application of the applicant under Subsection (7).
737          (c) Upon receiving the results of the criminal history search of a national criminal
738     background database, the office shall approve or deny the application of the applicant in
739     accordance with Subsections (5) through (7).
740          (9) A licensee or department contractor may not permit an individual to have direct
741     access to a child or a vulnerable adult unless, subject to Subsection (10):
742          (a) the individual is associated with the licensee or department contractor and:
743          (i) the individual's application is approved by the office under this section;
744          (ii) the individual's application is conditionally approved by the office under
745     Subsection (8); or
746          (iii) (A) the individual has submitted the background check information described in
747     Subsection (2) to the office;
748          (B) the office has not determined whether to approve the applicant's application; and
749          (C) the individual is directly supervised by an individual who has a current background
750     screening approval issued by the office under this section and is associated with the licensee or
751     department contractor;
752          (b) (i) the individual is associated with the licensee or department contractor;
753          (ii) the individual has a current background screening approval issued by the office
754     under this section;
755          (iii) one of the following circumstances, that the office has not yet reviewed under
756     Subsection (6), applies to the individual:
757          (A) the individual was charged with an offense described in Subsection (5)(a);
758          (B) the individual is listed in the Licensing Information System, described in Section
759     62A-4a-1006;
760          (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
761     database, described in Section 62A-3-311.1;
762          (D) the individual has a record in the juvenile court of a substantiated finding of severe
763     child abuse or neglect, described in Section 78A-6-323; or
764          (E) the individual has a record of an adjudication in juvenile court for an act that, if
765     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
766     or (6); and
767          (iv) the individual is directly supervised by an individual who:
768          (A) has a current background screening approval issued by the office under this
769     section; and
770          (B) is associated with the licensee or department contractor;
771          (c) the individual:
772          (i) is not associated with the licensee or department contractor; and
773          (ii) is directly supervised by an individual who:
774          (A) has a current background screening approval issued by the office under this
775     section; and
776          (B) is associated with the licensee or department contractor;
777          (d) the individual is the parent or guardian of the child, or the guardian of the
778     vulnerable adult;
779          (e) the individual is approved by the parent or guardian of the child, or the guardian of
780     the vulnerable adult, to have direct access to the child or the vulnerable adult;
781          (f) the individual is only permitted to have direct access to a vulnerable adult who
782     voluntarily invites the individual to visit; or
783          (g) the individual only provides incidental care for a foster child on behalf of a foster
784     parent who has used reasonable and prudent judgment to select the individual to provide the
785     incidental care for the foster child.
786          (10) An individual may not have direct access to a child or a vulnerable adult if the
787     individual is prohibited by court order from having that access.
788          (11) Notwithstanding any other provision of this section, an individual for whom the
789     office denies an application may not have direct access to a child or vulnerable adult unless the
790     office approves a subsequent application by the individual.
791          (12) (a) Within 30 days after the day on which the office receives the background
792     check information for an applicant, the office shall give notice of the clearance status to:
793          (i) the applicant, and the licensee or department contractor, of the office's decision
794     regarding the background check and findings; and
795          (ii) the applicant of any convictions and potentially disqualifying charges and
796     adjudications found in the search.
797          (b) With the notice described in Subsection (12)(a), the office shall also give the
798     applicant the details of any comprehensive review conducted under Subsection (6).
799          (c) If the notice under Subsection (12)(a) states that the applicant's application is
800     denied, the notice shall further advise the applicant that the applicant may, under Subsection
801     62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
802     challenge the office's decision.
803          (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
804     office shall make rules, consistent with this chapter:
805          (i) defining procedures for the challenge of the office's background check decision
806     described in Subsection (12)(c); and
807          (ii) expediting the process for renewal of a license under the requirements of this
808     section and other applicable sections.
809          (13) An individual or a department contractor who provides services in an adults only
810     substance use disorder program, as defined by rule, is exempt from this section. This
811     exemption does not extend to a program director or a member, as defined by Section
812     62A-2-108, of the program.
813          (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
814     of this section, if the background check of an applicant is being conducted for the purpose of
815     giving clearance status to an applicant seeking a position in a congregate care [facility]
816     program, an applicant for a one-time adoption, an applicant seeking to provide a prospective
817     foster home, or an applicant seeking to provide a prospective adoptive home, the office shall:
818          (i) check the child abuse and neglect registry in each state where each applicant resided
819     in the five years immediately preceding the day on which the applicant applied to be a foster
820     parent or adoptive parent, to determine whether the prospective foster parent or prospective
821     adoptive parent is listed in the registry as having a substantiated or supported finding of child
822     abuse or neglect; and
823          (ii) check the child abuse and neglect registry in each state where each adult living in
824     the home of the applicant described in Subsection (14)(a)(i) resided in the five years
825     immediately preceding the day on which the applicant applied to be a foster parent or adoptive
826     parent, to determine whether the adult is listed in the registry as having a substantiated or
827     supported finding of child abuse or neglect.
828          (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
829          (i) federal law or rule permits otherwise; or
830          (ii) the requirements would prohibit the Division of Child and Family Services or a
831     court from placing a child with:
832          (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
833          (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
834     or 78A-6-307.5, pending completion of the background check described in Subsection (5).
835          (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an
836     applicant seeking a position in a congregate care [facility] program, an applicant for a one-time
837     adoption, an applicant to become a prospective foster parent, or an applicant to become a
838     prospective adoptive parent if the applicant has been convicted of:
839          (i) a felony involving conduct that constitutes any of the following:
840          (A) child abuse, as described in Section 76-5-109;
841          (B) commission of domestic violence in the presence of a child, as described in Section
842     76-5-109.1;
843          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
844          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
845          (E) aggravated murder, as described in Section 76-5-202;
846          (F) murder, as described in Section 76-5-203;
847          (G) manslaughter, as described in Section 76-5-205;
848          (H) child abuse homicide, as described in Section 76-5-208;
849          (I) homicide by assault, as described in Section 76-5-209;
850          (J) kidnapping, as described in Section 76-5-301;
851          (K) child kidnapping, as described in Section 76-5-301.1;
852          (L) aggravated kidnapping, as described in Section 76-5-302;
853          (M) human trafficking of a child, as described in Section 76-5-308.5;
854          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
855          (O) sexual exploitation of a minor, as described in Section 76-5b-201;
856          (P) aggravated arson, as described in Section 76-6-103;
857          (Q) aggravated burglary, as described in Section 76-6-203;
858          (R) aggravated robbery, as described in Section 76-6-302; or
859          (S) domestic violence, as described in Section 77-36-1; or
860          (ii) an offense committed outside the state that, if committed in the state, would
861     constitute a violation of an offense described in Subsection (14)(c)(i).
862          (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
863     license renewal to a prospective foster parent or a prospective adoptive parent if, within the five
864     years immediately preceding the day on which the individual's application or license would
865     otherwise be approved, the applicant was convicted of a felony involving conduct that
866     constitutes a violation of any of the following:
867          (i) aggravated assault, as described in Section 76-5-103;
868          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
869          (iii) mayhem, as described in Section 76-5-105;
870          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
871          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
872          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
873     Act;
874          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
875     Precursor Act; or
876          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
877          (e) In addition to the circumstances described in Subsection (6)(a), the office shall
878     conduct the comprehensive review of an applicant's background check pursuant to this section
879     if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
880     child abuse and neglect registry of another state as having a substantiated or supported finding
881     of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
882          Section 5. Section 62A-2-123 is enacted to read:
883          62A-2-123. Congregate care program regulation.
884          (1) A congregate care program may not use a cruel, severe, unusual, or unnecessary
885     practice on a child, including:
886          (a) a strip search unless the congregate care program determines and documents that a
887     strip search is necessary to protect an individual's health or safety;
888          (b) a body cavity search unless the congregate care program determines and documents
889     that a body cavity search is necessary to protect an individual's health or safety;
890          (c) inducing pain to obtain compliance;
891          (d) hyperextending joints;
892          (e) peer restraints;
893          (f) discipline or punishment that is intended to frighten or humiliate;
894          (g) requiring or forcing the child to take an uncomfortable position, including squatting
895     or bending;
896          (h) for the purpose of punishing or humiliating, requiring or forcing the child to repeat
897     physical movements or physical exercises such as running laps or performing push-ups;
898          (i) spanking, hitting, shaking, or otherwise engaging in aggressive physical contact;
899          (j) denying an essential program service;
900          (k) depriving the child of a meal, water, rest, or opportunity for toileting;
901          (l) denying shelter, clothing, or bedding;
902          (m) withholding personal interaction, emotional response, or stimulation;
903          (n) prohibiting the child from entering the residence;
904          (o) abuse as defined in Section 78A-6-105; and
905          (p) neglect as defined in Section 78A-6-105.
906          (2) Before a congregate care program may use a restraint or seclusion, the congregate
907     care program shall:
908          (a) develop and implement written policies and procedures that:
909          (i) describe the circumstances under which a staff member may use a restraint or
910     seclusion;
911          (ii) describe which staff members are authorized to use a restraint or seclusion;
912          (iii) describe procedures for monitoring a child that is restrained or in seclusion;
913          (iv) describe time limitations on the use of a restraint or seclusion;
914          (v) require immediate and continuous review of the decision to use a restraint or
915     seclusion;
916          (vi) require documenting the use of a restraint or seclusion;
917          (vii) describe record keeping requirements for records related to the use of a restraint or
918     seclusion;
919          (viii) to the extent practicable, require debriefing the following individuals if debriefing
920     would not interfere with an ongoing investigation, violate any law or regulation, or conflict
921     with a child's treatment plan:
922          (A) each witness to the event;
923          (B) each staff member involved; and
924          (C) the child who was restrained or in seclusion.
925          (ix) include a procedure for complying with Subsection (5); and
926          (x) provide an administrative review process and required follow up actions after a
927     child is restrained or put in seclusion; and
928          (b) consult with the office to ensure that the congregate care program's written policies
929     and procedures align with industry standards and applicable law.
930          (3) A congregate care program:
931          (a) may use a passive physical restraint only if the passive physical restraint is
932     supported by a nationally or regionally recognized curriculum focused on non-violent
933     interventions and de-escalation techniques;
934          (b) may not use a chemical or mechanical restraint unless the office has authorized the
935     congregate care program to use a chemical or mechanical restraint;
936          (c) shall ensure that a staff member that uses a restraint on a child is:
937          (i) properly trained to use the restraint; and
938          (ii) familiar with the child and if the child has a treatment plan, the child's treatment
939     plan; and
940          (d) shall train each staff member on how to intervene if another staff member fails to
941     follow correct procedures when using a restraint.
942          (4) (a) A congregate care program:
943          (i) may use seclusion if:
944          (A) the purpose for the seclusion is to ensure the immediate safety of the child or
945     others; and
946          (B) no less restrictive intervention is likely to ensure the safety of the child or others;
947     and
948          (ii) may not use seclusion:
949          (A) for coercion, retaliation, or humiliation; or
950          (B) due to inadequate staffing or for the staff's convenience.
951          (b) While a child is in seclusion, a staff member who is familiar to the child shall
952     actively supervise the child for the duration of the seclusion.
953          (5) Subject to the office's review and approval, a congregate care program shall
954     develop:
955          (a) suicide prevention policies and procedures that describe:
956          (i) how the congregate care program will respond in the event a child exhibits
957     self-injurious, self-harm, or suicidal behavior;
958          (ii) warning signs of suicide;
959          (iii) emergency protocol and contacts;
960          (iv) training requirements for staff, including suicide prevention training;
961          (v) procedures for implementing additional supervision precautions and for removing
962     any additional supervision precautions;
963          (vi) suicide risk assessment procedures;
964          (vii) documentation requirements for a child's suicide ideation and self-harm;
965          (viii) special observation precautions for a child exhibiting warning signs of suicide;
966          (ix) communication procedures to ensure all staff are aware of a child who exhibits
967     warning signs of suicide;
968          (x) a process for tracking suicide behavioral patterns; and
969          (xi) a post-intervention plan with identified resources; and
970          (b) based on state law and industry best practices, policies and procedures for
971     managing a child's behavior during the child's participation in the congregate care program.
972          (6) A congregate care program:
973          (a) when not otherwise prohibited by law, shall facilitate weekly Ŝ→ confidential ←Ŝ
973a      communication
974     between a child and the child's parents, guardian, foster parents, and siblings, as applicable;
975          (b) shall ensure that the communication described in Subsection (6)(a) complies with
976     the child's treatment plan, if any; and
977          (c) may not use family contact as an incentive for proper behavior or withhold family
978     contact as a punishment.
979          Section 6. Section 62A-2-124 is enacted to read:
980          62A-2-124. Human services program non-discrimination.
981          A human services program:
982          (1) shall perform an individualized assessment when classifying and placing an
983     individual in programs and living environments; and
984          (2) subject to the office's review and approval, shall create policies and procedures that
985     include:
986          (a) a description of what constitutes sex and gender based abuse, discrimination, and
987     harassment;
988          (b) procedures for preventing and reporting abuse, discrimination, and harassment; and
989          (c) procedures for teaching effective and professional communication with individuals
990     of all sexual orientations and genders.