1     
EMPLOYMENT SCREENING REQUIREMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Marsha Judkins

5     
Senate Sponsor: Michael S. Kennedy

6     

7     LONG TITLE
8     General Description:
9          This bill addresses employment background screening requirements.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     when hiring a mental health professional, prohibits certain public employers and
14     public employer contractors from:
15               •     considering certain arrests or criminal convictions; or
16               •     denying employment based on certain criminal convictions or participation in
17     substance use treatment;
18          ▸     when hiring a mental health professional, prohibits a private employer from
19     excluding an applicant from an interview for a juvenile adjudication, certain arrests,
20     or an expunged criminal offense;
21          ▸     modifies the Office of Licensing's (office) background and screening processes for
22     an individual applying to work in a program with direct access to a child or
23     vulnerable adult;
24          ▸     exempts certain individuals employed by the Department of Health and Human
25     Services from the office's background and screening processes;
26          ▸     requires the office to conduct a comprehensive review of an applicant's background
27     check if the applicant is applying to work in a program as a peer support provider or
28     mental health professional;
29          ▸     requires the office to deny an applicant's application upon certain background check
30     findings;
31          ▸     provides administrative rulemaking authority; and
32          ▸     makes technical and conforming changes.
33     Money Appropriated in this Bill:
34          None
35     Other Special Clauses:
36          None
37     Utah Code Sections Affected:
38     AMENDS:
39          34-52-102, as last amended by Laws of Utah 2019, Chapter 371
40          34-52-201, as last amended by Laws of Utah 2022, Chapter 447
41          62A-2-120, as last amended by Laws of Utah 2022, Chapters 185, 335, 430, and 468
42          62A-5-103.5, as last amended by Laws of Utah 2017, Chapter 181
43     ENACTS:
44          34-52-302, Utah Code Annotated 1953
45     

46     Be it enacted by the Legislature of the state of Utah:
47          Section 1. Section 34-52-102 is amended to read:
48          34-52-102. Definitions.
49          As used in this chapter:
50          (1) "Applicant" means an individual who provides information to a public employer or
51     private employer for the purpose of obtaining employment.
52          (2) (a) "Criminal conviction" means a verdict or finding of guilt after a criminal trial or
53     a plea of guilty or nolo contendere to a criminal charge.
54          (b) "Criminal conviction" does not include an expunged criminal conviction.
55          (3) "Juvenile adjudication" means:
56          (a) a finding by a court that the facts in a petition or criminal information alleging an
57     individual committed an offense when the individual was younger than 18 years old have been
58     proved; or
59          (b) an admission or plea of no contest under Section 80-6-306.
60          (4) "Mental health professional applicant" means an individual who:
61          (a) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
62          (b) provides information to a public employer or private employer for the purpose of
63     obtaining employment that requires a license under Title 58, Chapter 60, Mental Health
64     Professional Practice Act.
65          [(3)] (5) (a) "Private employer" means a person who has one or more employees
66     employed in the same business, or in or about the same establishment, under any contract of
67     hire, express or implied, oral or written.
68          (b) "Private employer" does not include a public employer.
69          [(4)] (6) "Public employer" means an employer that is:
70          (a) the state or any administrative subunit of the state, including a department, division,
71     board, council, committee, institution, office, bureau, or other similar administrative unit of
72     state government;
73          (b) a state institution of higher education; or
74          (c) a municipal corporation, county, municipality, school district, local district, special
75     service district, or other political subdivision of the state.
76          Section 2. Section 34-52-201 is amended to read:
77          34-52-201. Public employer requirements.
78          (1) [A] Except as provided in Subsections (3) and (6), a public employer may not:
79          (a) exclude an applicant from an initial interview because of:
80          (i) a past criminal conviction[.]; or
81          (ii) if the applicant is a mental health professional applicant, an arrest for an offense
82     that occurred before the applicant was 18 years old or a past juvenile adjudication;
83          (b) make an inquiry related to an applicant's expunged criminal history;
84          (c) when making a hiring decision regarding a mental health professional applicant,
85     consider:
86          (i) an arrest for an offense that occurred before the mental health professional applicant
87     was 18 years old;
88          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
89          (iii) a juvenile adjudication; or
90          (iv) a past criminal conviction if:
91          (A) the sentence for the criminal conviction is terminated; and
92          (B) the mental health professional applicant was not incarcerated for the past criminal
93     conviction or the mental health professional applicant's incarceration for the past criminal
94     conviction ended at least three years before the day on which the mental health professional
95     applicant applied for employment; or
96          (d) deny a mental health professional applicant employment based on a past criminal
97     conviction that does not bear a direct relationship to the mental health professional applicant's
98     ability to safely or competently perform the duties of employment.
99          (2) A public employer excludes an applicant from an initial interview under Subsection
100     (1) if the public employer:
101          [(a) requires an applicant to disclose, on an employment application, a criminal
102     conviction;]
103          [(b) requires an applicant to disclose, before an initial interview, a criminal conviction;
104     or]
105          [(c) if no interview is conducted, requires an applicant to disclose, before making a
106     conditional offer of employment, a criminal conviction.]
107          (a) requires an applicant to disclose a criminal conviction:
108          (i) on an employment application;
109          (ii) before an initial interview; or
110          (iii) if no interview is conducted, before making a conditional offer of employment; or
111          (b) requires an applicant who is a mental health professional applicant to disclose an
112     arrest for an offense that occurred before the applicant was 18 years old or a juvenile
113     adjudication:
114          (i) on an employment application;
115          (ii) before an initial interview; or
116          (iii) if no interview is conducted, before making a conditional offer of employment.
117          (3) A public employer may not deny a mental health professional applicant
118     employment that requires the mental health professional applicant to provide substance use
119     treatment based on:
120          (a) the mental health professional applicant's participation in substance use treatment;
121     or
122          (b) a past criminal conviction for a nonviolent drug offense if:
123          (i) the sentence for the criminal conviction is terminated; and
124          (ii) (A) the mental health professional applicant was not incarcerated for the past
125     criminal conviction; or
126          (B) the mental health professional applicant's incarceration for the past criminal
127     conviction ended at least three years before the day on which the mental health professional
128     applicant applied for employment.
129          [(3) (a) A public employer may not make any inquiry related to an applicant's
130     expunged criminal history.]
131          [(b)] (4) An applicant seeking employment from a public employer may answer a
132     question related to an expunged criminal record as though the action underlying the expunged
133     criminal record never occurred.
134          [(4)] (5) [Subject to] Except as provided in Subsections (1) through (3), [nothing in this
135     section prevents] this section does not prevent a public employer from:
136          (a) asking an applicant for information about an applicant's criminal conviction history
137     during an initial interview or after an initial interview; or
138          (b) considering an applicant's criminal conviction history when making a hiring
139     decision.
140          [(5)] (6) (a) Subsections (1) through [(3)] (4) do not apply:
141          [(a)] (i) if federal, state, or local law, including corresponding administrative rules,
142     requires the consideration of an applicant's criminal conviction history;
143          [(b)] (ii) to a public employer that is a law enforcement agency;
144          [(c)] (iii) to a public employer that is part of the criminal or juvenile justice system;
145          [(d)] (iv) to a public employer seeking a nonemployee volunteer;
146          [(e)] (v) to a public employer that works with children or vulnerable adults;
147          [(f)] (vi) to the Department of Alcoholic Beverage Services created in Section
148     32B-2-203;
149          [(g)] (vii) to the State Tax Commission;
150          [(h)] (viii) to a public employer whose primary purpose is performing financial or
151     fiduciary functions; [and] or
152          [(i)] (ix) to a public transit district hiring or promoting an individual for a safety
153     sensitive position described in Section 17B-2a-825.
154          (b) Subsections (1)(c)(iv) and (1)(d) do not apply to a criminal conviction for:
155          (i) a violent felony as defined in Section 76-3-203.5; or
156          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
157     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
158          (c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
159     public employer.
160          Section 3. Section 34-52-302 is enacted to read:
161          34-52-302. Private employer requirements when hiring a mental health
162     professional.
163          (1) Except as provided in Subsection (4), a private employer may not exclude a mental
164     health professional applicant from an initial interview because of:
165          (a) an arrest for an offense that occurred before the mental health professional applicant
166     was 18 years old;
167          (b) a juvenile adjudication; or
168          (c) an expunged criminal offense.
169          (2) A private employer excludes a mental health professional applicant from an initial
170     interview under Subsection (1) if the private employer requires the mental health professional
171     applicant to disclose an arrest for an offense that occurred before the mental health professional
172     applicant was 18 years old, a juvenile adjudication, or an expunged criminal offense:
173          (a) on an employment application;
174          (b) before an initial interview; or
175          (c) if no interview is conducted, before making a conditional offer of employment.
176          (3) Except as provided in Subsections (1) and (2), this section does not prevent a
177     private employer from:
178          (a) asking a mental health professional applicant for information about the mental
179     health professional applicant's criminal conviction history during an initial interview or after an
180     initial interview; or
181          (b) considering a mental health professional applicant's criminal conviction history
182     when making a hiring decision.
183          (4) Subsections (1) and (2) do not apply:
184          (a) if federal, state, or local law, including corresponding administrative rules, requires
185     the consideration of an applicant's criminal conviction history;
186          (b) to a private employer that is part of the criminal or juvenile justice system;
187          (c) to a private employer seeking a nonemployee volunteer;
188          (d) to a private employer that works with children or vulnerable adults; or
189          (e) to a private employer whose primary purpose is performing financial or fiduciary
190     functions.
191          Section 4. Section 62A-2-120 is amended to read:
192          62A-2-120. Background check -- Direct access to children or vulnerable adults.
193          (1) As used in this section:
194          (a) (i) "Applicant" means, notwithstanding Section 62A-2-101:
195          (A) [the same as that term is defined in Section 62A-2-101;] an individual who applies
196     for an initial license or certification or a license or certification renewal under this chapter;
197          (B) an individual who is associated with a licensee and has or will likely have direct
198     access to a child or a vulnerable adult;
199          (C) an individual who provides respite care to a foster parent or an adoptive parent on
200     more than one occasion;
201          (D) a department contractor;
202          (E) an individual who transports a child for a youth transportation company;
203          (F) a guardian submitting an application on behalf of an individual, other than the child
204     or vulnerable adult who is receiving the service, if the individual is 12 years old or older and
205     resides in a home[,] that is licensed or certified by the office[, with the child or vulnerable adult
206     who is receiving services]; or
207          (G) a guardian submitting an application on behalf of an individual, other than the
208     child or vulnerable adult who is receiving the service, if the individual is 12 years old or older
209     and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
210          (ii) "Applicant" does not [mean an individual, including an adult, who is in the custody
211     of the Division of Child and Family Services or the Division of Juvenile Justice Services.]
212     include:
213          (A) an individual who is in the custody of the Division of Child and Family Services or
214     the Division of Juvenile Justice Services; or
215          (B) an individual who applies for employment with, or is employed by, the Department
216     of Health and Human Services.
217          (b) "Application" means a background screening application to the office.
218          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
219     Public Safety, created in Section 53-10-201.
220          (d) "Certified peer support specialist" means the same as that term is defined in Section
221     62A-15-1301.
222          (e) "Criminal finding" means a record of:
223          (i) an arrest or a warrant for an arrest;
224          (ii) charges for a criminal offense; or
225          (iii) a criminal conviction.
226          [(d)] (f) "Incidental care" means occasional care, not in excess of five hours per week
227     and never overnight, for a foster child.
228          (g) "Mental health professional" means an individual who:
229          (i) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
230          (ii) engaged in the practice of mental health therapy.
231          (h) "Non-criminal finding" means a record maintained in:
232          (i) the Division of Child and Family Services' Management Information System
233     described in Section 80-2-1001;
234          (ii) the Division of Child and Family Services' Licensing Information System described
235     in Section 80-2-1002;
236          (iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or
237     exploitation database described in Section 62A-3-311.1;
238          (iv) the Sex and Kidnap Offender Registry described in Title 77, Chapter 41, Sex and
239     Kidnap Offender Registry, or a national sex offender registry; or
240          (v) a state child abuse or neglect registry.
241          (i) (i) "Peer support specialist" means an individual who:
242          (A) has a disability or a family member with a disability, or is in recovery from a
243     mental illness or a substance use disorder; and
244          (B) uses personal experience to provide support, guidance, or services to promote
245     resiliency and recovery.
246          (ii) "Peer support specialist" includes a certified peer support specialist.
247          (iii) "Peer support specialist" does not include a mental health professional.
248          [(e)] (j) "Personal identifying information" means:
249          (i) current name, former names, nicknames, and aliases;
250          (ii) date of birth;
251          (iii) physical address and email address;
252          (iv) telephone number;
253          (v) driver license or other government-issued identification;
254          (vi) social security number;
255          (vii) only for applicants who are 18 years old or older, fingerprints, in a form specified
256     by the office; and
257          (viii) other information specified by the office by rule made in accordance with Title
258     63G, Chapter 3, Utah Administrative Rulemaking Act.
259          (k) "Practice of mental health therapy" means the same as that term is defined in
260     Section 58-60-102.
261          (2) [(a)] Except as provided in Subsection [(13),] (12), an applicant or a representative
262     shall submit the following to the office:
263          [(i)] (a) personal identifying information;
264          [(ii)] (b) a fee established by the office under Section 63J-1-504; [and]
265          [(iii)] (c) a disclosure form, specified by the office, for consent for:
266          [(A)] (i) an initial background check upon submission of the information described [
267     under] in this Subsection [(2)(a)] (2);
268          [(B)] (ii) ongoing monitoring of fingerprints and registries until no longer associated
269     with a licensee for 90 days;
270          [(C)] (iii) a background check when the office determines that reasonable cause exists;
271     and
272          [(D)] (iv) retention of personal identifying information, including fingerprints, for
273     monitoring and notification as described in Subsections (3)(d) and (4)[.]; and
274          [(b)] (d) [In addition to the requirements described in Subsection (2)(a),] if an applicant
275     resided outside of the United States and its territories during the five years immediately
276     preceding the day on which the information described in [Subsection (2)(a)] Subsections (2)(a)
277     through (c) is submitted to the office, [the office may require the applicant to submit]
278     documentation establishing whether the applicant was convicted of a crime during the time that
279     the applicant resided outside of the United States or its territories.
280          (3) The office:
281          (a) shall perform the following duties as part of a background check of an applicant:
282          (i) check state and regional criminal background databases for the applicant's criminal
283     history by:
284          (A) submitting personal identifying information to the bureau for a search; or
285          (B) using the applicant's personal identifying information to search state and regional
286     criminal background databases as authorized under Section 53-10-108;
287          (ii) submit the applicant's personal identifying information and fingerprints to the
288     bureau for a criminal history search of applicable national criminal background databases;
289          (iii) search the [Department of Human Services,] Division of Child and Family
290     Services' Licensing Information System described in Section 80-2-1002;
291          (iv) if the applicant is applying to become a prospective foster or adoptive parent,
292     search the Division of Child and Family Services' Management Information System described
293     in Section 80-2-1001 for:
294          (A) the applicant; and
295          (B) any adult living in the applicant's home;
296          (v) for an applicant described in Subsection (1)(a)(i)(F), search the Division of Child
297     and Family Services' Management Information System described in Section 80-2-1001;
298          [(iv)] (vi) search the [Department of Human Services,] Division of Aging and Adult
299     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
300     62A-3-311.1;
301          [(v)] (vii) search the juvenile court records for substantiated findings of severe child
302     abuse or neglect described in Section 80-3-404; and
303          [(vi)] (viii) search the juvenile court arrest, adjudication, and disposition records, as
304     provided under Section 78A-6-209;
305          (b) shall conduct a background check of an applicant for an initial background check
306     upon submission of the information described [under Subsection (2)(a)] in Subsection (2);
307          (c) may conduct all or portions of a background check of an applicant, as provided by
308     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
309     Rulemaking Act:
310          (i) for an annual renewal; or
311          (ii) when the office determines that reasonable cause exists;
312          (d) may submit an applicant's personal identifying information, including fingerprints,
313     to the bureau for checking, retaining, and monitoring of state and national criminal background
314     databases and for notifying the office of new criminal activity associated with the applicant;
315          (e) shall track the status of an [approved] applicant under this section to ensure that [an
316     approved] the applicant is not required to duplicate the submission of the applicant's
317     fingerprints if the applicant applies for:
318          (i) more than one license;
319          (ii) direct access to a child or a vulnerable adult in more than one human services
320     program; or
321          (iii) direct access to a child or a vulnerable adult under a contract with the department;
322          (f) shall track the status of [each license and] each individual with direct access to a
323     child or a vulnerable adult and notify the bureau within 90 days after the day on which the
324     license expires or the individual's direct access to a child or a vulnerable adult ceases;
325          (g) shall adopt measures to strictly limit access to personal identifying information
326     solely to the individuals responsible for processing and entering the applications for
327     background checks and to protect the security of the personal identifying information the office
328     reviews under this Subsection (3);
329          (h) as necessary to comply with the federal requirement to check a state's child abuse
330     and neglect registry regarding any individual working in a congregate care program, shall:
331          (i) search the [Department of Human Services,] Division of Child and Family Services'
332     Licensing Information System described in Section 80-2-1002; and
333          (ii) require the child abuse and neglect registry be checked in each state where an
334     applicant resided at any time during the five years immediately preceding the day on which the
335     applicant submits the information described in Subsection [(2)(a)] (2) to the office; and
336          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
337     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
338     checks.
339          (4) (a) With the personal identifying information the office submits to the bureau under
340     Subsection (3), the bureau shall check against state and regional criminal background databases
341     for the applicant's criminal history.
342          (b) With the personal identifying information and fingerprints the office submits to the
343     bureau under Subsection (3), the bureau shall check against national criminal background
344     databases for the applicant's criminal history.
345          (c) Upon direction from the office, and with the personal identifying information and
346     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
347          (i) maintain a separate file of the fingerprints for search by future submissions to the
348     local and regional criminal records databases, including latent prints; and
349          (ii) monitor state and regional criminal background databases and identify criminal
350     activity associated with the applicant.
351          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
352     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
353     Investigation Next Generation Identification System for the purpose of:
354          (i) being searched by future submissions to the national criminal records databases,
355     including the Federal Bureau of Investigation Next Generation Identification System and latent
356     prints; and
357          (ii) monitoring national criminal background databases and identifying criminal
358     activity associated with the applicant.
359          (e) The Bureau shall notify and release to the office all information of criminal activity
360     associated with the applicant.
361          (f) Upon notice [from the office that a license has expired or an] that an individual's
362     direct access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
363          (i) discard and destroy any retained fingerprints; and
364          (ii) notify the Federal Bureau of Investigation when the license has expired or an
365     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
366     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
367     Investigation Next Generation Identification System.
368          (5) (a) [After] Except as provided in Subsection (5)(b), after conducting the
369     background check described in Subsections (3) and (4), the office shall deny an application to
370     an applicant who, within three years before the day on which the applicant submits information
371     to the office under Subsection (2) for a background check, has been convicted of [any of the
372     following, regardless of whether the offense is a felony, a misdemeanor, or an infraction:]:
373          (i) a felony or misdemeanor involving conduct that constitutes any of the following:
374          (A) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
375     animals, or bestiality;
376          [(ii)] (B) a violation of any pornography law, including sexual exploitation of a minor
377     or aggravated sexual exploitation of a minor;
378          [(iii)] (C) [prostitution;] sexual solicitation;
379          [(iv) an offense included in:]
380          [(A) Title 76, Chapter 5, Offenses Against the Individual;]
381          [(B) Section 76-5b-201, Sexual Exploitation of a Minor;]
382          [(C) Section 76-5b-201.1, Aggravated Sexual Exploitation of a Minor; or]
383          [(D) Title 76, Chapter 7, Offenses Against the Family;]
384          (D) an offense included in Title 76, Chapter 5, Offenses Against the Individual, Title
385     76, Chapter 5b, Sexual Exploitation Act, Title 76, Chapter 4, Part 4, Enticement of a Minor, or
386     Title 76, Chapter 7, Offenses Against the Family;
387          [(v)] (E) aggravated arson, as described in Section 76-6-103;
388          [(vi)] (F) aggravated burglary, as described in Section 76-6-203;
389          [(vii)] (G) aggravated robbery, as described in Section 76-6-302;
390          [(viii)] (H) identity fraud crime, as described in Section 76-6-1102; [or]
391          (I) sexual battery, as described in Section 76-9-702.1; or
392          (J) a violent offense committed in the presence of a child, as described in Section
393     76-3-203.10; or
394          [(ix)] (ii) a felony or misdemeanor offense committed outside of the state that, if
395     committed in the state, would constitute a violation of an offense described in [Subsections
396     (5)(a)(i) through (viii).] Subsection (5)(a)(i).
397          [(b) If the office denies an application to an applicant based on a conviction described
398     in Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
399     Subsection (6).]
400          [(c)] (b) (i) [If the applicant will be working in a program serving only adults whose
401     only impairment is a mental health diagnosis, including that of a serious mental health disorder,
402     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
403     do not apply, and the office shall conduct a comprehensive review as described in Subsection
404     (6).] Subsection (5)(a) does not apply to an applicant who is seeking a position as a peer
405     support provider, a mental health professional, or in a program that serves only adults with a
406     primary mental health diagnosis, with or without a co-occurring substance use disorder.
407          (ii) The office shall conduct a comprehensive review of an applicant described in
408     Subsection (5)(b)(i) in accordance with Subsection (6).
409          (6) [(a)] The office shall conduct a comprehensive review of an applicant's background
410     check if the applicant:
411          [(i)] (a) has a felony or class A misdemeanor conviction for an offense described in
412     Subsection (5) with a date of conviction that is more than three years before the date on which
413     the applicant submits the information described in Subsection (2);
414          (b) [has an open court case or a conviction for any felony offense,] has a felony charge
415     or conviction for an offense not described in Subsection [(5)(a), with a date of conviction that
416     is] (5) with a date of charge or conviction that is no more than 10 years before the date on
417     which the applicant submits the application under Subsection (2) and no criminal findings or
418     non-criminal findings after the date of conviction;
419          [(ii) has an open court case or a conviction for a misdemeanor offense, not described in
420     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
421     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
422     on which the applicant submits information to the office under Subsection (2) for a background
423     check;]
424          [(iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
425     than three years before the day on which the applicant submitted information under Subsection
426     (2)(a);]
427          [(iv) is currently subject to a plea in abeyance or diversion agreement for any offense
428     described in Subsection (5)(a);]
429          [(v) has a listing in the Department of Human Services, Division of Child and Family
430     Services' Licensing Information System described in Section 80-2-1002;]
431          [(vi) has a listing in the Department of Human Services, Division of Aging and Adult
432     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
433     62A-3-311.1;]
434          [(vii) has a record in the juvenile court of a substantiated finding of severe child abuse
435     or neglect described in Section 80-3-404;]
436          [(viii)]     (c) has a class B misdemeanor or class C misdemeanor conviction for an
437     offense described in Subsection (5) with a date of conviction that is more than three years after,
438     and no more than 10 years before, the date on which the applicant submits the information
439     described in Subsection (2) and no criminal findings or non-criminal findings after the date of
440     conviction;
441          (d) has a misdemeanor conviction for an offense not described in Subsection (5) with a
442     date of conviction that is no more than three years before the date on which the applicant
443     submits information described in Subsection (2) and no criminal findings or non-criminal
444     findings after the date of conviction;
445          (e) is currently subject to a plea in abeyance or diversion agreement for an offense
446     described in Subsection (5);
447          (f) appears on the Sex and Kidnap Offender Registry described in Title 77, Chapter 41,
448     Sex and Kidnap Offender Registry, or a national sex offender registry;
449          (g) has a record of an adjudication in juvenile court for an act that, if committed by an
450     adult, would be a felony or misdemeanor, if the applicant is:
451          [(A)] (i) under 28 years old; or
452          [(B)] (ii) 28 years old or older and has been convicted of, has pleaded no contest to, or
453     is currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor
454     offense described in Subsection [(5)(a);] (5);
455          [(ix)] (h) has a pending charge for an offense described in Subsection [(5)(a); or] (5);
456          [(x) is an applicant described in Subsection (5)(c).]
457          (i) has a listing in the Division of Child and Family Services' Licensing Information
458     System described in Section 80-2-1002 that occurred no more than 15 years before the date on
459     which the applicant submits the information described in Subsection (2) and no criminal
460     findings or non-criminal findings dated after the date of the listing;
461          (j) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
462     neglect, or exploitation database described in Section 62A-3-311.1 that occurred no more than
463     15 years before the date on which the applicant submits the information described in
464     Subsection (2) and no criminal findings or non-criminal findings dated after the date of the
465     listing;
466          (k) has a substantiated finding of severe child abuse or neglect under Section 80-3-404
467     that occurred no more than 15 years before the date on which the applicant submits the
468     information described in Subsection (2) and no criminal findings or non-criminal findings
469     dated after the date of the finding;
470          (l) (i) is seeking a position:
471          (A) as a peer support provider;
472          (B) as a mental health professional; or
473          (C) in a program that serves only adults with a primary mental health diagnosis, with or
474     without a co-occurring substance use disorder; and
475          (ii) within three years before the day on which the applicant submits the information
476     described in Subsection (2):
477          (A) has a felony or misdemeanor charge or conviction;
478          (B) has a listing in the Division of Child and Family Services' Licensing Information
479     System described in Section 80-2-1002;
480          (C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
481     neglect, or exploitation database described in Section 62A-3-311.1; or
482          (D) has a substantial finding of severe child abuse or neglect under Section 80-3-404;
483          (m) (i) (A) is seeking a position in a congregate care program;
484          (B) is seeking to become a prospective foster or adoptive parent; or
485          (C) is an applicant described in Subsection (1)(a)(i)(F); and
486          (ii) (A) has an infraction conviction for conduct that constitutes an offense or violation
487     described in Subsection (5)(a)(i)(A) or (B);
488          (B) has a listing in the Division of Child and Family Services' Licensing Information
489     System described in Section 80-2-1002;
490          (C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
491     neglect, or exploitation database described in Section 62A-3-311.1;
492          (D) has a substantial finding of severe child abuse or neglect under Section 80-3-404;
493     or
494          (E) has a listing on the registry check described in Subsection (13)(a) as having a
495     substantiated or supported finding of a severe type of child abuse or neglect as defined in
496     Section 80-1-1002; or
497          (n) is seeking to become a prospective foster or adoptive parent and has, or has an adult
498     living with the applicant who has, a conviction, finding, or listing described in Subsection
499     (6)(m)(ii).
500          [(b)] (7) (a) The comprehensive review [described in Subsection (6)(a)] shall include
501     an examination of:
502          (i) the date of the offense or incident;
503          (ii) the nature and seriousness of the offense or incident;
504          (iii) the circumstances under which the offense or incident occurred;
505          (iv) the age of the perpetrator when the offense or incident occurred;
506          (v) whether the offense or incident was an isolated or repeated incident;
507          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
508     adult, including:
509          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
510          (B) sexual abuse;
511          (C) sexual exploitation; or
512          (D) negligent treatment;
513          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
514     treatment received, or additional academic or vocational schooling completed; and
515          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
516     which the applicant is applying[; and].
517          [(ix) any other pertinent information presented to or publicly available to the
518     committee members.]
519          [(c)] (b) At the conclusion of the comprehensive review [described in Subsection
520     (6)(a)], the office shall deny an application to an applicant if the office finds:
521          (i) that approval would likely create a risk of harm to a child or a vulnerable adult[.]; or
522          (ii) an individual is prohibited from having direct access to a child or vulnerable adult
523     by court order.
524          [(d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
525     office may not deny an application to an applicant solely because the applicant was convicted
526     of an offense that occurred 10 or more years before the day on which the applicant submitted
527     the information required under Subsection (2)(a) if:]
528          [(i) the applicant has not committed another misdemeanor or felony offense after the
529     day on which the conviction occurred; and]
530          [(ii) the applicant has never been convicted of an offense described in Subsection
531     (14)(c).]
532          [(e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
533     the office may make rules, consistent with this chapter, to establish procedures for the
534     comprehensive review described in this Subsection (6).]
535          [(7)] (8) [Subject to Subsection (10), the] The office shall approve an application to an
536     applicant who is not denied under [Subsection (5), (6), or (14).] this section.
537          [(8)] (9) (a) The office may conditionally approve an application of an applicant, for a
538     maximum of 60 days after the day on which the office sends written notice to the applicant
539     under Subsection [(12),] (11), without requiring that the applicant be directly supervised, if the
540     office:
541          (i) is awaiting the results of the criminal history search of national criminal background
542     databases; and
543          (ii) would otherwise approve an application of the applicant [under Subsection (7)]
544     under this section.
545          (b) The office may conditionally approve an application of an applicant, for a
546     maximum of one year after the day on which the office sends written notice to the applicant
547     under Subsection [(12)] (11), without requiring that the applicant be directly supervised if the
548     office:
549          (i) is awaiting the results of an out-of-state registry for providers other than foster and
550     adoptive parents; and
551          (ii) would otherwise approve an application of the applicant [under Subsection (7)]
552     under this section.
553          (c) Upon receiving the results of the criminal history search of a national criminal
554     background database, the office shall approve or deny the application of the applicant in
555     accordance with [Subsections (5) through (7)] this section.
556          [(9)] (10) (a) A licensee or department contractor may not permit an individual to have
557     direct access to a child or a vulnerable adult [unless, subject to Subsection (10)] without being
558     directly supervised unless:
559          [(a)] (i) the individual is associated with the licensee or department contractor and the
560     department conducts a background screening in accordance with this section[:];
561          [(i) the individual's application is approved by the office under this section;]
562          [(ii) the individual's application is conditionally approved by the office under
563     Subsection (8); or]
564          [(iii) (A) the individual has submitted the background check information described in
565     Subsection (2) to the office;]
566          [(B) the office has not determined whether to approve the applicant's application; and]
567          [(C) the individual is directly supervised by an individual who has a current
568     background screening approval issued by the office under this section and is associated with
569     the licensee or department contractor;]
570          [(b) (i) the individual is associated with the licensee or department contractor;]
571          [(ii) the individual has a current background screening approval issued by the office
572     under this section;]
573          [(iii) one of the following circumstances, that the office has not yet reviewed under
574     Subsection (6), applies to the individual:]
575          [(A) the individual was charged with an offense described in Subsection (5)(a);]
576          [(B) the individual is listed in the Licensing Information System, described in Section
577     80-2-1002;]
578          [(C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
579     database, described in Section 62A-3-311.1;]
580          [(D) the individual has a record in the juvenile court of a substantiated finding of
581     severe child abuse or neglect, described in Section 80-3-404; or]
582          [(E) the individual has a record of an adjudication in juvenile court for an act that, if
583     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
584     or (6); and]
585          [(iv) the individual is directly supervised by an individual who:]
586          [(A) has a current background screening approval issued by the office under this
587     section; and]
588          [(B) is associated with the licensee or department contractor;]
589          [(c) the individual:]
590          [(i) is not associated with the licensee or department contractor; and]
591          [(ii) is directly supervised by an individual who:]
592          [(A) has a current background screening approval issued by the office under this
593     section; and]
594          [(B) is associated with the licensee or department contractor;]
595          [(d)] (ii) the individual is the parent or guardian of the child, or the guardian of the
596     vulnerable adult;
597          [(e)] (iii) the individual is approved by the parent or guardian of the child, or the
598     guardian of the vulnerable adult, to have direct access to the child or the vulnerable adult;
599          [(f)] (iv) the individual is only permitted to have direct access to a vulnerable adult
600     who voluntarily invites the individual to visit; or
601          [(g)] (v) the individual only provides incidental care for a foster child on behalf of a
602     foster parent who has used reasonable and prudent judgment to select the individual to provide
603     the incidental care for the foster child.
604          [(10) An individual may not have direct access to a child or a vulnerable adult if the
605     individual is prohibited by court order from having that access.]
606          [(11)] (b) Notwithstanding any other provision of this section, an individual for whom
607     the office denies an application may not have direct access to a child or vulnerable adult unless
608     the office approves a subsequent application by the individual.
609          [(12)] (11) (a) Within 30 days after the day on which [the office receives the
610     background check information for an applicant, the office shall give notice of the clearance
611     status to:] the applicant submits the information described in Subsection (2), the office shall
612     notify the applicant of any potentially disqualifying criminal findings or non-criminal findings.
613          [(i) the applicant, and the licensee or department contractor, of the office's decision
614     regarding the background check and findings; and]
615          [(ii) the applicant of any convictions and potentially disqualifying charges and
616     adjudications found in the search.]
617          [(b) With the notice described in Subsection (12)(a), the office shall also give the
618     applicant the details of any comprehensive review conducted under Subsection (6).]
619          [(c)] (b) If the notice under Subsection [(12)(a)] (11)(a) states that the applicant's
620     application is denied, the notice shall further advise the applicant that the applicant may, under
621     Subsection 62A-2-111(2), request a hearing in the department's Office of Administrative
622     Hearings, to challenge the office's decision.
623          [(d)] (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
624     Act, the office shall make rules, consistent with this chapter:
625          (i) defining procedures for the challenge of the office's background check decision
626     described in Subsection [(12)(c)] (11)(b); and
627          (ii) expediting the process for renewal of a license under the requirements of this
628     section and other applicable sections.
629          [(13)] (12) (a) An individual or a department contractor who provides services in an
630     adults only substance use disorder program, as defined by rule made in accordance with Title
631     63G, Chapter 3, Utah Administrative Rulemaking Act, is exempt from this section.
632          (b) [This] The exemption described in Subsection (12)(a) does not extend to a program
633     director or a member, as defined by Section 62A-2-108, of the program.
634          [(14)] (13) (a) Except as provided in Subsection [(14)(b),] (13)(b), in addition to the
635     other requirements of this section, if the background check of an applicant is being conducted
636     for the purpose of giving clearance status to an applicant seeking a position in a congregate
637     care program[, an applicant for a one-time adoption,] or an applicant seeking to [provide a
638     prospective foster home, or an applicant seeking to provide a prospective adoptive home]
639     become a prospective or adoptive parent, the office shall:
640          (i) check the child abuse and neglect registry in each state where each applicant resided
641     in the five years immediately preceding the day on which the applicant applied to be a foster
642     [parent] or adoptive parent, to determine whether the prospective foster [parent or prospective]
643     or adoptive parent is listed in the registry as having a substantiated or supported finding of
644     child abuse or neglect; and
645          (ii) check the child abuse and neglect registry in each state where each adult living in
646     the home of the applicant described in Subsection [(14)(a)(i)] (13)(a)(i) resided in the five years
647     immediately preceding the day on which the applicant applied to be a foster [parent] or
648     adoptive parent, to determine whether the adult is listed in the registry as having a substantiated
649     or supported finding of child abuse or neglect.
650          (b) The requirements described in Subsection [(14)(a)] (13)(a) do not apply to the
651     extent that:
652          (i) federal law or rule permits otherwise; or
653          (ii) the requirements would prohibit the Division of Child and Family Services or a
654     court from placing a child with:
655          (A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or
656          (B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302, or
657     80-3-303, pending completion of the background check described in Subsection (5).
658          (c) Notwithstanding Subsections (5) through [(9),] (10), the office shall deny a
659     clearance to an applicant seeking a position in a congregate care program[, an applicant for a
660     one-time adoption,] or an applicant to become a prospective foster [parent, or an applicant to
661     become a prospective] or adoptive parent if the applicant has been convicted of:
662          (i) a felony involving conduct that constitutes any of the following:
663          (A) child abuse, as described in Sections 76-5-109, 76-5-109.2, and 76-5-109.3;
664          (B) commission of domestic violence in the presence of a child, as described in Section
665     76-5-114;
666          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
667          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
668          (E) aggravated murder, as described in Section 76-5-202;
669          (F) murder, as described in Section 76-5-203;
670          (G) manslaughter, as described in Section 76-5-205;
671          (H) child abuse homicide, as described in Section 76-5-208;
672          (I) homicide by assault, as described in Section 76-5-209;
673          (J) kidnapping, as described in Section 76-5-301;
674          (K) child kidnapping, as described in Section 76-5-301.1;
675          (L) aggravated kidnapping, as described in Section 76-5-302;
676          (M) human trafficking of a child, as described in Section 76-5-308.5;
677          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
678          (O) sexual exploitation of a minor, [as described in Section 76-5b-201] described in
679     Title 76, Chapter 5b, Sexual Exploitation Act;
680          (P) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
681          (Q) aggravated arson, as described in Section 76-6-103;
682          (R) aggravated burglary, as described in Section 76-6-203;
683          (S) aggravated robbery, as described in Section 76-6-302; [or]
684          (T) lewdness involving a child, as described in Section 76-9-702.5;
685          (U) incest, as described in Section 76-7-102; or
686          (V) domestic violence, as described in Section 77-36-1; or
687          (ii) an offense committed outside the state that, if committed in the state, would
688     constitute a violation of an offense described in Subsection [(14)(c)(i)] (13)(c)(i).
689          (d) Notwithstanding Subsections (5) through [(9),] (10), the office shall deny a license
690     or license renewal to [a] an individual seeking a position in a congregate care program or a
691     prospective foster [parent or a prospective] or adoptive parent if, within the five years
692     immediately preceding the day on which the individual's application or license would otherwise
693     be approved, the [applicant] individual was convicted of a felony involving conduct that
694     constitutes a violation of any of the following:
695          (i) aggravated assault, as described in Section 76-5-103;
696          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
697          (iii) mayhem, as described in Section 76-5-105;
698          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
699          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
700          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
701     Act;
702          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
703     Precursor Act; or
704          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
705          (e) In addition to the circumstances described in Subsection [(6)(a)] (6), the office shall
706     conduct the comprehensive review of an applicant's background check [pursuant to] under this
707     section if the registry check described in Subsection [(14)(a)] (13)(a) indicates that the
708     individual is listed in a child abuse and neglect registry of another state as having a
709     substantiated or supported finding of a severe type of child abuse or neglect as defined in
710     Section 80-1-102.
711          (14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
712     the office may make rules, consistent with this chapter, to:
713          (a) establish procedures for, and information to be examined in, the comprehensive
714     review described in Subsections (6) and (7); and
715          (b) determine whether to consider an offense or incident that occurred while an
716     individual was in the custody of the Division of Child and Family Services or the Division of
717     Juvenile Justice Services for purposes of approval or denial of an application for a prospective
718     foster or adoptive parent.
719          Section 5. Section 62A-5-103.5 is amended to read:
720          62A-5-103.5. Disbursal of public funds -- Background check of a direct service
721     worker.
722          (1) For purposes of this section, "office" means the same as that term is defined in
723     Section 62A-2-101.
724          (2) Public funds may not be disbursed to pay a direct service worker for personal
725     services rendered to a person unless the office approves the direct service worker to have direct
726     access and provide services to a child or a vulnerable adult pursuant to Section 62A-2-120.
727          (3) For purposes of Subsection (2), the office shall conduct a background check of a
728     direct service worker:
729          (a) before public funds are disbursed to pay the direct service worker for the personal
730     services described in Subsection (2); and
731          (b) using the same procedures established for a background check of an applicant for a
732     license under Section 62A-2-120.
733          (4) A child who is in the legal custody of the department or any of the department's
734     divisions may not be placed with a direct service worker unless, before the child is placed with
735     the direct service worker, the direct service worker passes a background check[, pursuant to the
736     requirements of Subsection 62A-2-120(14)] under Section 62A-2-120.
737          (5) If a public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
738     Transit District Act, contracts with the division to provide services:
739          (a) the provisions of this section are not applicable to a direct service worker employed
740     by the public transit district; and
741          (b) the division may not reimburse the public transit district for services provided
742     unless a direct service worker hired or transferred internally after July 1, 2013, by the public
743     transit district to drive a paratransit route:
744          (i) is approved by the office to have direct access to children and vulnerable adults in
745     accordance with Section 62A-2-120; and
746          (ii) is subject to a background check established in a statute or rule governing a public
747     transit district or other public transit district policy.