Representative Marsha Judkins proposes the following substitute bill:


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          This bill provides a coordination clause.
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     Utah Code Sections Affected by Coordination Clause:
46          34-52-201, as last amended by Laws of Utah 2022, Chapter 447
47     

48     Be it enacted by the Legislature of the state of Utah:
49          Section 1. Section 34-52-102 is amended to read:
50          34-52-102. Definitions.
51          As used in this chapter:
52          (1) "Applicant" means an individual who provides information to a public employer or
53     private employer for the purpose of obtaining employment.
54          (2) (a) "Criminal conviction" means a verdict or finding of guilt after a criminal trial or
55     a plea of guilty or nolo contendere to a criminal charge.
56          (b) "Criminal conviction" does not include an expunged criminal conviction.
57          (3) "Juvenile adjudication" means:
58          (a) a finding by a court that the facts in a petition or criminal information alleging an
59     individual committed an offense when the individual was younger than 18 years old have been
60     proved; or
61          (b) an admission or plea of no contest under Section 80-6-306.
62          (4) "Mental health professional applicant" means an individual who:
63          (a) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
64          (b) provides information to a public employer or private employer for the purpose of
65     obtaining employment that requires a license under Title 58, Chapter 60, Mental Health
66     Professional Practice Act.
67          [(3)] (5) (a) "Private employer" means a person who has one or more employees
68     employed in the same business, or in or about the same establishment, under any contract of
69     hire, express or implied, oral or written.
70          (b) "Private employer" does not include a public employer.
71          [(4)] (6) "Public employer" means an employer that is:
72          (a) the state or any administrative subunit of the state, including a department, division,
73     board, council, committee, institution, office, bureau, or other similar administrative unit of
74     state government;
75          (b) a state institution of higher education; or
76          (c) a municipal corporation, county, municipality, school district, local district, special
77     service district, or other political subdivision of the state.
78          Section 2. Section 34-52-201 is amended to read:
79          34-52-201. Public employer requirements.
80          (1) [A] Except as provided in Subsections (3) and (6), a public employer may not:
81          (a) exclude an applicant from an initial interview because of:
82          (i) a past criminal conviction[.]; or
83          (ii) if the applicant is a mental health professional applicant, an arrest for an offense
84     that occurred before the applicant was 18 years old or a past juvenile adjudication;
85          (b) make an inquiry related to an applicant's expunged criminal history;
86          (c) when making a hiring decision regarding a mental health professional applicant,
87     consider:
88          (i) an arrest for an offense that occurred before the mental health professional applicant
89     was 18 years old;
90          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
91          (iii) a juvenile adjudication; or
92          (iv) a past criminal conviction if:
93          (A) the sentence for the criminal conviction is terminated; and
94          (B) the mental health professional applicant was not incarcerated for the past criminal
95     conviction or the mental health professional applicant's incarceration for the past criminal
96     conviction ended at least three years before the day on which the mental health professional
97     applicant applied for employment; or
98          (d) deny a mental health professional applicant employment based on a past criminal
99     conviction that does not bear a direct relationship to the mental health professional applicant's
100     ability to safely or competently perform the duties of employment.
101          (2) A public employer excludes an applicant from an initial interview under Subsection
102     (1) if the public employer:
103          [(a) requires an applicant to disclose, on an employment application, a criminal
104     conviction;]
105          [(b) requires an applicant to disclose, before an initial interview, a criminal conviction;
106     or]
107          [(c) if no interview is conducted, requires an applicant to disclose, before making a
108     conditional offer of employment, a criminal conviction.]
109          (a) requires an applicant to disclose a criminal conviction:
110          (i) on an employment application;
111          (ii) before an initial interview; or
112          (iii) if no interview is conducted, before making a conditional offer of employment; or
113          (b) requires an applicant who is a mental health professional applicant to disclose an
114     arrest for an offense that occurred before the applicant was 18 years old or a juvenile
115     adjudication:
116          (i) on an employment application;
117          (ii) before an initial interview; or
118          (iii) if no interview is conducted, before making a conditional offer of employment.
119          (3) A public employer may not deny a mental health professional applicant
120     employment that requires the mental health professional applicant to provide substance use
121     treatment based on:
122          (a) the mental health professional applicant's participation in substance use treatment;
123     or
124          (b) a past criminal conviction for a nonviolent drug offense if:
125          (i) the sentence for the criminal conviction is terminated; and
126          (ii) (A) the mental health professional applicant was not incarcerated for the past
127     criminal conviction; or
128          (B) the mental health professional applicant's incarceration for the past criminal
129     conviction ended at least three years before the day on which the mental health professional
130     applicant applied for employment.
131          [(3) (a) A public employer may not make any inquiry related to an applicant's
132     expunged criminal history.]
133          [(b)] (4) An applicant seeking employment from a public employer may answer a
134     question related to an expunged criminal record as though the action underlying the expunged
135     criminal record never occurred.
136          [(4)] (5) [Subject to] Except as provided in Subsections (1) through (3), [nothing in this
137     section prevents] this section does not prevent a public employer from:
138          (a) asking an applicant for information about an applicant's criminal conviction history
139     during an initial interview or after an initial interview; or
140          (b) considering an applicant's criminal conviction history when making a hiring
141     decision.
142          [(5)] (6) (a) Subsections (1) through [(3)] (4) do not apply:
143          [(a)] (i) if federal, state, or local law, including corresponding administrative rules,
144     requires the consideration of an applicant's criminal conviction history;
145          [(b)] (ii) to a public employer that is a law enforcement agency;
146          [(c)] (iii) to a public employer that is part of the criminal or juvenile justice system;
147          [(d)] (iv) to a public employer seeking a nonemployee volunteer;
148          [(e)] (v) to a public employer that works with children or vulnerable adults;
149          [(f)] (vi) to the Department of Alcoholic Beverage Services created in Section
150     32B-2-203;
151          [(g)] (vii) to the State Tax Commission;
152          [(h)] (viii) to a public employer whose primary purpose is performing financial or
153     fiduciary functions; [and] or
154          [(i)] (ix) to a public transit district hiring or promoting an individual for a safety
155     sensitive position described in Section 17B-2a-825.
156          (b) Subsections (1)(c)(iv) and (1)(d) do not apply to a criminal conviction for:
157          (i) a violent felony as defined in Section 76-3-203.5; or
158          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
159     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
160          (c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
161     public employer.
162          Section 3. Section 34-52-302 is enacted to read:
163          34-52-302. Private employer requirements when hiring a mental health
164     professional.
165          (1) Except as provided in Subsection (4), a private employer may not exclude a mental
166     health professional applicant from an initial interview because of:
167          (a) an arrest for an offense that occurred before the mental health professional applicant
168     was 18 years old;
169          (b) a juvenile adjudication; or
170          (c) an expunged criminal offense.
171          (2) A private employer excludes a mental health professional applicant from an initial
172     interview under Subsection (1) if the private employer requires the mental health professional
173     applicant to disclose an arrest for an offense that occurred before the mental health professional
174     applicant was 18 years old, a juvenile adjudication, or an expunged criminal offense:
175          (a) on an employment application;
176          (b) before an initial interview; or
177          (c) if no interview is conducted, before making a conditional offer of employment.
178          (3) Except as provided in Subsections (1) and (2), this section does not prevent a
179     private employer from:
180          (a) asking a mental health professional applicant for information about the mental
181     health professional applicant's criminal conviction history during an initial interview or after an
182     initial interview; or
183          (b) considering a mental health professional applicant's criminal conviction history
184     when making a hiring decision.
185          (4) Subsections (1) and (2) do not apply:
186          (a) if federal, state, or local law, including corresponding administrative rules, requires
187     the consideration of an applicant's criminal conviction history;
188          (b) to a private employer that is part of the criminal or juvenile justice system;
189          (c) to a private employer seeking a nonemployee volunteer;
190          (d) to a private employer that works with children or vulnerable adults; or
191          (e) to a private employer whose primary purpose is performing financial or fiduciary
192     functions.
193          Section 4. Section 62A-2-120 is amended to read:
194          62A-2-120. Background check -- Direct access to children or vulnerable adults.
195          (1) As used in this section:
196          (a) (i) "Applicant" means, notwithstanding Section 62A-2-101:
197          (A) [the same as that term is defined in Section 62A-2-101;] an individual who applies
198     for an initial license or certification or a license or certification renewal under this chapter;
199          (B) an individual who is associated with a licensee and has or will likely have direct
200     access to a child or a vulnerable adult;
201          (C) an individual who provides respite care to a foster parent or an adoptive parent on
202     more than one occasion;
203          (D) a department contractor;
204          (E) an individual who transports a child for a youth transportation company;
205          (F) a guardian submitting an application on behalf of an individual, other than the child
206     or vulnerable adult who is receiving the service, if the individual is 12 years old or older and
207     resides in a home[,] that is licensed or certified by the office[, with the child or vulnerable adult
208     who is receiving services]; or
209          (G) a guardian submitting an application on behalf of an individual, other than the
210     child or vulnerable adult who is receiving the service, if the individual is 12 years old or older
211     and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
212          (ii) "Applicant" does not [mean an individual, including an adult, who is in the custody
213     of the Division of Child and Family Services or the Division of Juvenile Justice Services.]
214     include:
215          (A) an individual who is in the custody of the Division of Child and Family Services or
216     the Division of Juvenile Justice Services; or
217          (B) an individual who applies for employment with, or is employed by, the Department
218     of Health and Human Services.
219          (b) "Application" means a background screening application to the office.
220          (c) "Bureau" means the Bureau of Criminal Identification within the Department of
221     Public Safety, created in Section 53-10-201.
222          (d) "Certified peer support specialist" means the same as that term is defined in Section
223     62A-15-1301.
224          (e) "Criminal finding" means a record of:
225          (i) an arrest or a warrant for an arrest;
226          (ii) charges for a criminal offense; or
227          (iii) a criminal conviction.
228          [(d)] (f) "Incidental care" means occasional care, not in excess of five hours per week
229     and never overnight, for a foster child.
230          (g) "Mental health professional" means an individual who:
231          (i) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
232          (ii) engaged in the practice of mental health therapy.
233          (h) "Non-criminal finding" means a record maintained in:
234          (i) the Division of Child and Family Services' Management Information System
235     described in Section 80-2-1001;
236          (ii) the Division of Child and Family Services' Licensing Information System described
237     in Section 80-2-1002;
238          (iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or
239     exploitation database described in Section 62A-3-311.1;
240          (iv) the Sex and Kidnap Offender Registry described in Title 77, Chapter 41, Sex and
241     Kidnap Offender Registry, or a national sex offender registry; or
242          (v) a state child abuse or neglect registry.
243          (i) (i) "Peer support specialist" means an individual who:
244          (A) has a disability or a family member with a disability, or is in recovery from a
245     mental illness or a substance use disorder; and
246          (B) uses personal experience to provide support, guidance, or services to promote
247     resiliency and recovery.
248          (ii) "Peer support specialist" includes a certified peer support specialist.
249          (iii) "Peer support specialist" does not include a mental health professional.
250          [(e)] (j) "Personal identifying information" means:
251          (i) current name, former names, nicknames, and aliases;
252          (ii) date of birth;
253          (iii) physical address and email address;
254          (iv) telephone number;
255          (v) driver license or other government-issued identification;
256          (vi) social security number;
257          (vii) only for applicants who are 18 years old or older, fingerprints, in a form specified
258     by the office; and
259          (viii) other information specified by the office by rule made in accordance with Title
260     63G, Chapter 3, Utah Administrative Rulemaking Act.
261          (k) "Practice of mental health therapy" means the same as that term is defined in
262     Section 58-60-102.
263          (2) [(a)] Except as provided in Subsection [(13),] (12), an applicant or a representative
264     shall submit the following to the office:
265          [(i)] (a) personal identifying information;
266          [(ii)] (b) a fee established by the office under Section 63J-1-504; [and]
267          [(iii)] (c) a disclosure form, specified by the office, for consent for:
268          [(A)] (i) an initial background check upon submission of the information described [
269     under] in this Subsection [(2)(a)] (2);
270          [(B)] (ii) ongoing monitoring of fingerprints and registries until no longer associated
271     with a licensee for 90 days;
272          [(C)] (iii) a background check when the office determines that reasonable cause exists;
273     and
274          [(D)] (iv) retention of personal identifying information, including fingerprints, for
275     monitoring and notification as described in Subsections (3)(d) and (4)[.]; and
276          [(b)] (d) [In addition to the requirements described in Subsection (2)(a),] if an applicant
277     resided outside of the United States and its territories during the five years immediately
278     preceding the day on which the information described in [Subsection (2)(a)] Subsections (2)(a)
279     through (c) is submitted to the office, [the office may require the applicant to submit]
280     documentation establishing whether the applicant was convicted of a crime during the time that
281     the applicant resided outside of the United States or its territories.
282          (3) The office:
283          (a) shall perform the following duties as part of a background check of an applicant:
284          (i) check state and regional criminal background databases for the applicant's criminal
285     history by:
286          (A) submitting personal identifying information to the bureau for a search; or
287          (B) using the applicant's personal identifying information to search state and regional
288     criminal background databases as authorized under Section 53-10-108;
289          (ii) submit the applicant's personal identifying information and fingerprints to the
290     bureau for a criminal history search of applicable national criminal background databases;
291          (iii) search the [Department of Human Services,] Division of Child and Family
292     Services' Licensing Information System described in Section 80-2-1002;
293          (iv) if the applicant is applying to become a prospective foster or adoptive parent,
294     search the Division of Child and Family Services' Management Information System described
295     in Section 80-2-1001 for:
296          (A) the applicant; and
297          (B) any adult living in the applicant's home;
298          (v) for an applicant described in Subsection (1)(a)(i)(F), search the Division of Child
299     and Family Services' Management Information System described in Section 80-2-1001;
300          [(iv)] (vi) search the [Department of Human Services,] Division of Aging and Adult
301     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
302     62A-3-311.1;
303          [(v)] (vii) search the juvenile court records for substantiated findings of severe child
304     abuse or neglect described in Section 80-3-404; and
305          [(vi)] (viii) search the juvenile court arrest, adjudication, and disposition records, as
306     provided under Section 78A-6-209;
307          (b) shall conduct a background check of an applicant for an initial background check
308     upon submission of the information described [under Subsection (2)(a)] in Subsection (2);
309          (c) may conduct all or portions of a background check of an applicant, as provided by
310     rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
311     Rulemaking Act:
312          (i) for an annual renewal; or
313          (ii) when the office determines that reasonable cause exists;
314          (d) may submit an applicant's personal identifying information, including fingerprints,
315     to the bureau for checking, retaining, and monitoring of state and national criminal background
316     databases and for notifying the office of new criminal activity associated with the applicant;
317          (e) shall track the status of an [approved] applicant under this section to ensure that [an
318     approved] the applicant is not required to duplicate the submission of the applicant's
319     fingerprints if the applicant applies for:
320          (i) more than one license;
321          (ii) direct access to a child or a vulnerable adult in more than one human services
322     program; or
323          (iii) direct access to a child or a vulnerable adult under a contract with the department;
324          (f) shall track the status of [each license and] each individual with direct access to a
325     child or a vulnerable adult and notify the bureau within 90 days after the day on which the
326     license expires or the individual's direct access to a child or a vulnerable adult ceases;
327          (g) shall adopt measures to strictly limit access to personal identifying information
328     solely to the individuals responsible for processing and entering the applications for
329     background checks and to protect the security of the personal identifying information the office
330     reviews under this Subsection (3);
331          (h) as necessary to comply with the federal requirement to check a state's child abuse
332     and neglect registry regarding any individual working in a congregate care program, shall:
333          (i) search the [Department of Human Services,] Division of Child and Family Services'
334     Licensing Information System described in Section 80-2-1002; and
335          (ii) require the child abuse and neglect registry be checked in each state where an
336     applicant resided at any time during the five years immediately preceding the day on which the
337     applicant submits the information described in Subsection [(2)(a)] (2) to the office; and
338          (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
339     Rulemaking Act, to implement the provisions of this Subsection (3) relating to background
340     checks.
341          (4) (a) With the personal identifying information the office submits to the bureau under
342     Subsection (3), the bureau shall check against state and regional criminal background databases
343     for the applicant's criminal history.
344          (b) With the personal identifying information and fingerprints the office submits to the
345     bureau under Subsection (3), the bureau shall check against national criminal background
346     databases for the applicant's criminal history.
347          (c) Upon direction from the office, and with the personal identifying information and
348     fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall:
349          (i) maintain a separate file of the fingerprints for search by future submissions to the
350     local and regional criminal records databases, including latent prints; and
351          (ii) monitor state and regional criminal background databases and identify criminal
352     activity associated with the applicant.
353          (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
354     Investigation Next Generation Identification System, to be retained in the Federal Bureau of
355     Investigation Next Generation Identification System for the purpose of:
356          (i) being searched by future submissions to the national criminal records databases,
357     including the Federal Bureau of Investigation Next Generation Identification System and latent
358     prints; and
359          (ii) monitoring national criminal background databases and identifying criminal
360     activity associated with the applicant.
361          (e) The Bureau shall notify and release to the office all information of criminal activity
362     associated with the applicant.
363          (f) Upon notice [from the office that a license has expired or an] that an individual's
364     direct access to a child or a vulnerable adult has ceased for 90 days, the bureau shall:
365          (i) discard and destroy any retained fingerprints; and
366          (ii) notify the Federal Bureau of Investigation when the license has expired or an
367     individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
368     of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
369     Investigation Next Generation Identification System.
370          (5) (a) [After] Except as provided in Subsection (5)(b), after conducting the
371     background check described in Subsections (3) and (4), the office shall deny an application to
372     an applicant who, within three years before the day on which the applicant submits information
373     to the office under Subsection (2) for a background check, has been convicted of [any of the
374     following, regardless of whether the offense is a felony, a misdemeanor, or an infraction:]:
375          (i) a felony or misdemeanor involving conduct that constitutes any of the following:
376          (A) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
377     animals, or bestiality;
378          [(ii)] (B) a violation of any pornography law, including sexual exploitation of a minor
379     or aggravated sexual exploitation of a minor;
380          [(iii) prostitution;]
381          [(iv) an offense included in:]
382          [(A) Title 76, Chapter 5, Offenses Against the Individual;]
383          [(B) Section 76-5b-201, Sexual Exploitation of a Minor;]
384          [(C) Section 76-5b-201.1, Aggravated Sexual Exploitation of a Minor; or]
385          [(D) Title 76, Chapter 7, Offenses Against the Family;]
386          (C) sexual solicitation;
387          (D) an offense included in Title 76, Chapter 5, Offenses Against the Individual, Title
388     76, Chapter 5b, Sexual Exploitation Act, Title 76, Chapter 4, Part 4, Enticement of a Minor, or
389     Title 76, Chapter 7, Offenses Against the Family;
390          [(v)] (E) aggravated arson, as described in Section 76-6-103;
391          [(vi)] (F) aggravated burglary, as described in Section 76-6-203;
392          [(vii)] (G) aggravated robbery, as described in Section 76-6-302;
393          [(viii)] (H) identity fraud crime, as described in Section 76-6-1102; [or]
394          (I) sexual battery, as described in Section 76-9-702.1; or
395          (J) a violent offense committed in the presence of a child, as described in Section
396     76-3-203.10; or
397          [(ix)] (ii) a felony or misdemeanor offense committed outside of the state that, if
398     committed in the state, would constitute a violation of an offense described in [Subsections
399     (5)(a)(i) through (viii).] Subsection (5)(a)(i).
400          [(b) If the office denies an application to an applicant based on a conviction described
401     in Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
402     Subsection (6).]
403          [(c) If the applicant will be working in a program serving only adults whose only
404     impairment is a mental health diagnosis, including that of a serious mental health disorder,
405     with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
406     do not apply, and the office shall conduct a comprehensive review as described in Subsection
407     (6).]
408          (b) (i) Subsection (5)(a) does not apply to an applicant who is seeking a position as a
409     peer support provider, a mental health professional, or in a program that serves only adults with
410     a primary mental health diagnosis, with or without a co-occurring substance use disorder.
411          (ii) The office shall conduct a comprehensive review of an applicant described in
412     Subsection (5)(b)(i) in accordance with Subsection (6).
413          (6) [(a)] The office shall conduct a comprehensive review of an applicant's background
414     check if the applicant:
415          [(i)] (a) has a felony or class A misdemeanor conviction for an offense described in
416     Subsection (5) with a date of conviction that is more than three years before the date on which
417     the applicant submits the information described in Subsection (2);
418          (b) [has an open court case or a conviction for any felony offense,] has a felony charge
419     or conviction for an offense not described in Subsection [(5)(a), with a date of conviction that
420     is] (5) with a date of charge or conviction that is no more than 10 years before the date on
421     which the applicant submits the application under Subsection (2) and no criminal findings or
422     non-criminal findings after the date of conviction;
423          [(ii) has an open court case or a conviction for a misdemeanor offense, not described in
424     Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
425     3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
426     on which the applicant submits information to the office under Subsection (2) for a background
427     check;]
428          [(iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
429     than three years before the day on which the applicant submitted information under Subsection
430     (2)(a);]
431          [(iv) is currently subject to a plea in abeyance or diversion agreement for any offense
432     described in Subsection (5)(a);]
433          [(v) has a listing in the Department of Human Services, Division of Child and Family
434     Services' Licensing Information System described in Section 80-2-1002;]
435          [(vi) has a listing in the Department of Human Services, Division of Aging and Adult
436     Services' vulnerable adult abuse, neglect, or exploitation database described in Section
437     62A-3-311.1;]
438          [(vii) has a record in the juvenile court of a substantiated finding of severe child abuse
439     or neglect described in Section 80-3-404;]
440          [(viii)]     (c) has a class B misdemeanor or class C misdemeanor conviction for an
441     offense described in Subsection (5) with a date of conviction that is more than three years after,
442     and no more than 10 years before, the date on which the applicant submits the information
443     described in Subsection (2) and no criminal findings or non-criminal findings after the date of
444     conviction;
445          (d) has a misdemeanor conviction for an offense not described in Subsection (5) with a
446     date of conviction that is no more than three years before the date on which the applicant
447     submits information described in Subsection (2) and no criminal findings or non-criminal
448     findings after the date of conviction;
449          (e) is currently subject to a plea in abeyance or diversion agreement for an offense
450     described in Subsection (5);
451          (f) appears on the Sex and Kidnap Offender Registry described in Title 77, Chapter 41,
452     Sex and Kidnap Offender Registry, or a national sex offender registry;
453          (g) has a record of an adjudication in juvenile court for an act that, if committed by an
454     adult, would be a felony or misdemeanor, if the applicant is:
455          [(A)] (i) under 28 years old; or
456          [(B)] (ii) 28 years old or older and has been convicted of, has pleaded no contest to, or
457     is currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor
458     offense described in Subsection [(5)(a);] (5);
459          [(ix)] (h) has a pending charge for an offense described in Subsection [(5)(a); or] (5);
460          [(x) is an applicant described in Subsection (5)(c).]
461          (i) has a listing in the Division of Child and Family Services' Licensing Information
462     System described in Section 80-2-1002 that occurred no more than 15 years before the date on
463     which the applicant submits the information described in Subsection (2) and no criminal
464     findings or non-criminal findings dated after the date of the listing;
465          (j) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
466     neglect, or exploitation database described in Section 62A-3-311.1 that occurred no more than
467     15 years before the date on which the applicant submits the information described in
468     Subsection (2) and no criminal findings or non-criminal findings dated after the date of the
469     listing;
470          (k) has a substantiated finding of severe child abuse or neglect under Section 80-3-404
471     that occurred no more than 15 years before the date on which the applicant submits the
472     information described in Subsection (2) and no criminal findings or non-criminal findings
473     dated after the date of the finding;
474          (l) (i) is seeking a position:
475          (A) as a peer support provider;
476          (B) as a mental health professional; or
477          (C) in a program that serves only adults with a primary mental health diagnosis, with or
478     without a co-occurring substance use disorder; and
479          (ii) within three years before the day on which the applicant submits the information
480     described in Subsection (2):
481          (A) has a felony or misdemeanor charge or conviction;
482          (B) has a listing in the Division of Child and Family Services' Licensing Information
483     System described in Section 80-2-1002;
484          (C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
485     neglect, or exploitation database described in Section 62A-3-311.1; or
486          (D) has a substantial finding of severe child abuse or neglect under Section 80-3-404;
487          (m) (i) (A) is seeking a position in a congregate care program;
488          (B) is seeking to become a prospective foster or adoptive parent; or
489          (C) is an applicant described in Subsection (1)(a)(i)(F); and
490          (ii) (A) has an infraction conviction for conduct that constitutes an offense or violation
491     described in Subsection (5)(a)(i)(A) or (B);
492          (B) has a listing in the Division of Child and Family Services' Licensing Information
493     System described in Section 80-2-1002;
494          (C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse,
495     neglect, or exploitation database described in Section 62A-3-311.1;
496          (D) has a substantial finding of severe child abuse or neglect under Section 80-3-404;
497     or
498          (E) has a listing on the registry check described in Subsection (13)(a) as having a
499     substantiated or supported finding of a severe type of child abuse or neglect as defined in
500     Section 80-1-1002; or
501          (n) is seeking to become a prospective foster or adoptive parent and has, or has an adult
502     living with the applicant who has, a conviction, finding, or listing described in Subsection
503     (6)(m)(ii).
504          [(b)] (7) (a) The comprehensive review [described in Subsection (6)(a)] shall include
505     an examination of:
506          (i) the date of the offense or incident;
507          (ii) the nature and seriousness of the offense or incident;
508          (iii) the circumstances under which the offense or incident occurred;
509          (iv) the age of the perpetrator when the offense or incident occurred;
510          (v) whether the offense or incident was an isolated or repeated incident;
511          (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
512     adult, including:
513          (A) actual or threatened, nonaccidental physical, mental, or financial harm;
514          (B) sexual abuse;
515          (C) sexual exploitation; or
516          (D) negligent treatment;
517          (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
518     treatment received, or additional academic or vocational schooling completed; and
519          (viii) the applicant's risk of harm to clientele in the program or in the capacity for
520     which the applicant is applying[; and].
521          [(ix) any other pertinent information presented to or publicly available to the
522     committee members.]
523          [(c)] (b) At the conclusion of the comprehensive review [described in Subsection
524     (6)(a)], the office shall deny an application to an applicant if the office finds:
525          (i) that approval would likely create a risk of harm to a child or a vulnerable adult[.]; or
526          (ii) an individual is prohibited from having direct access to a child or vulnerable adult
527     by court order.
528          [(d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
529     office may not deny an application to an applicant solely because the applicant was convicted
530     of an offense that occurred 10 or more years before the day on which the applicant submitted
531     the information required under Subsection (2)(a) if:]
532          [(i) the applicant has not committed another misdemeanor or felony offense after the
533     day on which the conviction occurred; and]
534          [(ii) the applicant has never been convicted of an offense described in Subsection
535     (14)(c).]
536          [(e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
537     the office may make rules, consistent with this chapter, to establish procedures for the
538     comprehensive review described in this Subsection (6).]
539          [(7) Subject to Subsection (10), the] (8) The office shall approve an application to an
540     applicant who is not denied under [Subsection (5), (6), or (14).] this section.
541          [(8)] (9) (a) The office may conditionally approve an application of an applicant, for a
542     maximum of 60 days after the day on which the office sends written notice to the applicant
543     under Subsection [(12),] (11), without requiring that the applicant be directly supervised, if the
544     office:
545          (i) is awaiting the results of the criminal history search of national criminal background
546     databases; and
547          (ii) would otherwise approve an application of the applicant [under Subsection (7)]
548     under this section.
549          (b) The office may conditionally approve an application of an applicant, for a
550     maximum of one year after the day on which the office sends written notice to the applicant
551     under Subsection [(12)] (11), without requiring that the applicant be directly supervised if the
552     office:
553          (i) is awaiting the results of an out-of-state registry for providers other than foster and
554     adoptive parents; and
555          (ii) would otherwise approve an application of the applicant [under Subsection (7)]
556     under this section.
557          (c) Upon receiving the results of the criminal history search of a national criminal
558     background database, the office shall approve or deny the application of the applicant in
559     accordance with [Subsections (5) through (7)] this section.
560          [(9)] (10) (a) A licensee or department contractor may not permit an individual to have
561     direct access to a child or a vulnerable adult [unless, subject to Subsection (10)] without being
562     directly supervised unless:
563          [(a)] (i) the individual is associated with the licensee or department contractor and the
564     department conducts a background screening in accordance with this section[:];
565          [(i) the individual's application is approved by the office under this section;]
566          [(ii) the individual's application is conditionally approved by the office under
567     Subsection (8); or]
568          [(iii) (A) the individual has submitted the background check information described in
569     Subsection (2) to the office;]
570          [(B) the office has not determined whether to approve the applicant's application; and]
571          [(C) the individual is directly supervised by an individual who has a current
572     background screening approval issued by the office under this section and is associated with
573     the licensee or department contractor;]
574          [(b) (i) the individual is associated with the licensee or department contractor;]
575          [(ii) the individual has a current background screening approval issued by the office
576     under this section;]
577          [(iii) one of the following circumstances, that the office has not yet reviewed under
578     Subsection (6), applies to the individual:]
579          [(A) the individual was charged with an offense described in Subsection (5)(a);]
580          [(B) the individual is listed in the Licensing Information System, described in Section
581     80-2-1002;]
582          [(C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
583     database, described in Section 62A-3-311.1;]
584          [(D) the individual has a record in the juvenile court of a substantiated finding of
585     severe child abuse or neglect, described in Section 80-3-404; or]
586          [(E) the individual has a record of an adjudication in juvenile court for an act that, if
587     committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
588     or (6); and]
589          [(iv) the individual is directly supervised by an individual who:]
590          [(A) has a current background screening approval issued by the office under this
591     section; and]
592          [(B) is associated with the licensee or department contractor;]
593          [(c) the individual:]
594          [(i) is not associated with the licensee or department contractor; and]
595          [(ii) is directly supervised by an individual who:]
596          [(A) has a current background screening approval issued by the office under this
597     section; and]
598          [(B) is associated with the licensee or department contractor;]
599          [(d)] (ii) the individual is the parent or guardian of the child, or the guardian of the
600     vulnerable adult;
601          [(e)] (iii) the individual is approved by the parent or guardian of the child, or the
602     guardian of the vulnerable adult, to have direct access to the child or the vulnerable adult;
603          [(f)] (iv) the individual is only permitted to have direct access to a vulnerable adult
604     who voluntarily invites the individual to visit; or
605          [(g)] (v) the individual only provides incidental care for a foster child on behalf of a
606     foster parent who has used reasonable and prudent judgment to select the individual to provide
607     the incidental care for the foster child.
608          [(10) An individual may not have direct access to a child or a vulnerable adult if the
609     individual is prohibited by court order from having that access.]
610          [(11)] (b) Notwithstanding any other provision of this section, an individual for whom
611     the office denies an application may not have direct access to a child or vulnerable adult unless
612     the office approves a subsequent application by the individual.
613          [(12)] (11) (a) Within 30 days after the day on which [the office receives the
614     background check information for an applicant, the office shall give notice of the clearance
615     status to:] the applicant submits the information described in Subsection (2), the office shall
616     notify the applicant of any potentially disqualifying criminal findings or non-criminal findings.
617          [(i) the applicant, and the licensee or department contractor, of the office's decision
618     regarding the background check and findings; and]
619          [(ii) the applicant of any convictions and potentially disqualifying charges and
620     adjudications found in the search.]
621          [(b) With the notice described in Subsection (12)(a), the office shall also give the
622     applicant the details of any comprehensive review conducted under Subsection (6).]
623          [(c)] (b) If the notice under Subsection [(12)(a)] (11)(a) states that the applicant's
624     application is denied, the notice shall further advise the applicant that the applicant may, under
625     Subsection 62A-2-111(2), request a hearing in the department's Office of Administrative
626     Hearings, to challenge the office's decision.
627          [(d)] (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
628     Act, the office shall make rules, consistent with this chapter:
629          (i) defining procedures for the challenge of the office's background check decision
630     described in Subsection [(12)(c)] (11)(b); and
631          (ii) expediting the process for renewal of a license under the requirements of this
632     section and other applicable sections.
633          [(13)] (12) (a) An individual or a department contractor who provides services in an
634     adults only substance use disorder program, as defined by rule made in accordance with Title
635     63G, Chapter 3, Utah Administrative Rulemaking Act, is exempt from this section.
636          (b) [This] The exemption described in Subsection (12)(a) does not extend to a program
637     director or a member, as defined by Section 62A-2-108, of the program.
638          [(14)] (13) (a) Except as provided in Subsection [(14)(b),] (13)(b), in addition to the
639     other requirements of this section, if the background check of an applicant is being conducted
640     for the purpose of giving clearance status to an applicant seeking a position in a congregate
641     care program[, an applicant for a one-time adoption,] or an applicant seeking to [provide a
642     prospective foster home, or an applicant seeking to provide a prospective adoptive home]
643     become a prospective foster or adoptive parent, the office shall:
644          (i) check the child abuse and neglect registry in each state where each applicant resided
645     in the five years immediately preceding the day on which the applicant applied to be a foster
646     [parent] or adoptive parent, to determine whether the prospective foster [parent or prospective]
647     or adoptive parent is listed in the registry as having a substantiated or supported finding of
648     child abuse or neglect; and
649          (ii) check the child abuse and neglect registry in each state where each adult living in
650     the home of the applicant described in Subsection [(14)(a)(i)] (13)(a)(i) resided in the five years
651     immediately preceding the day on which the applicant applied to be a foster [parent] or
652     adoptive parent, to determine whether the adult is listed in the registry as having a substantiated
653     or supported finding of child abuse or neglect.
654          (b) The requirements described in Subsection [(14)(a)] (13)(a) do not apply to the
655     extent that:
656          (i) federal law or rule permits otherwise; or
657          (ii) the requirements would prohibit the Division of Child and Family Services or a
658     court from placing a child with:
659          (A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or
660          (B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302, or
661     80-3-303, pending completion of the background check described in Subsection (5).
662          (c) Notwithstanding Subsections (5) through [(9),] (10), the office shall deny a
663     clearance to an applicant seeking a position in a congregate care program[, an applicant for a
664     one-time adoption,] or an applicant to become a prospective foster [parent, or an applicant to
665     become a prospective] or adoptive parent if the applicant has been convicted of:
666          (i) a felony involving conduct that constitutes any of the following:
667          (A) child abuse, as described in Sections 76-5-109, 76-5-109.2, and 76-5-109.3;
668          (B) commission of domestic violence in the presence of a child, as described in Section
669     76-5-114;
670          (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
671          (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
672          (E) aggravated murder, as described in Section 76-5-202;
673          (F) murder, as described in Section 76-5-203;
674          (G) manslaughter, as described in Section 76-5-205;
675          (H) child abuse homicide, as described in Section 76-5-208;
676          (I) homicide by assault, as described in Section 76-5-209;
677          (J) kidnapping, as described in Section 76-5-301;
678          (K) child kidnapping, as described in Section 76-5-301.1;
679          (L) aggravated kidnapping, as described in Section 76-5-302;
680          (M) human trafficking of a child, as described in Section 76-5-308.5;
681          (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
682          (O) sexual exploitation of a minor, [as described in Section 76-5b-201] described in
683     Title 76, Chapter 5b, Sexual Exploitation Act;
684          (P) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
685          (Q) aggravated arson, as described in Section 76-6-103;
686          (R) aggravated burglary, as described in Section 76-6-203;
687          (S) aggravated robbery, as described in Section 76-6-302; [or]
688          (T) lewdness involving a child, as described in Section 76-9-702.5;
689          (U) incest, as described in Section 76-7-102; or
690          (V) domestic violence, as described in Section 77-36-1; or
691          (ii) an offense committed outside the state that, if committed in the state, would
692     constitute a violation of an offense described in Subsection [(14)(c)(i)] (13)(c)(i).
693          (d) Notwithstanding Subsections (5) through [(9),] (10), the office shall deny a license
694     or license renewal to [a] an individual seeking a position in a congregate care program or a
695     prospective foster [parent or a prospective] or adoptive parent if, within the five years
696     immediately preceding the day on which the individual's application or license would otherwise
697     be approved, the [applicant] individual was convicted of a felony involving conduct that
698     constitutes a violation of any of the following:
699          (i) aggravated assault, as described in Section 76-5-103;
700          (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
701          (iii) mayhem, as described in Section 76-5-105;
702          (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
703          (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
704          (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
705     Act;
706          (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
707     Precursor Act; or
708          (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
709          (e) In addition to the circumstances described in Subsection [(6)(a)] (6), the office shall
710     conduct the comprehensive review of an applicant's background check [pursuant to] under this
711     section if the registry check described in Subsection [(14)(a)] (13)(a) indicates that the
712     individual is listed in a child abuse and neglect registry of another state as having a
713     substantiated or supported finding of a severe type of child abuse or neglect as defined in
714     Section 80-1-102.
715          (14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
716     the office may make rules, consistent with this chapter, to:
717          (a) establish procedures for, and information to be examined in, the comprehensive
718     review described in Subsections (6) and (7); and
719          (b) determine whether to consider an offense or incident that occurred while an
720     individual was in the custody of the Division of Child and Family Services or the Division of
721     Juvenile Justice Services for purposes of approval or denial of an application for a prospective
722     foster or adoptive parent.
723          Section 5. Section 62A-5-103.5 is amended to read:
724          62A-5-103.5. Disbursal of public funds -- Background check of a direct service
725     worker.
726          (1) For purposes of this section, "office" means the same as that term is defined in
727     Section 62A-2-101.
728          (2) Public funds may not be disbursed to pay a direct service worker for personal
729     services rendered to a person unless the office approves the direct service worker to have direct
730     access and provide services to a child or a vulnerable adult pursuant to Section 62A-2-120.
731          (3) For purposes of Subsection (2), the office shall conduct a background check of a
732     direct service worker:
733          (a) before public funds are disbursed to pay the direct service worker for the personal
734     services described in Subsection (2); and
735          (b) using the same procedures established for a background check of an applicant for a
736     license under Section 62A-2-120.
737          (4) A child who is in the legal custody of the department or any of the department's
738     divisions may not be placed with a direct service worker unless, before the child is placed with
739     the direct service worker, the direct service worker passes a background check[, pursuant to the
740     requirements of Subsection 62A-2-120(14)] under Section 62A-2-120.
741          (5) If a public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
742     Transit District Act, contracts with the division to provide services:
743          (a) the provisions of this section are not applicable to a direct service worker employed
744     by the public transit district; and
745          (b) the division may not reimburse the public transit district for services provided
746     unless a direct service worker hired or transferred internally after July 1, 2013, by the public
747     transit district to drive a paratransit route:
748          (i) is approved by the office to have direct access to children and vulnerable adults in
749     accordance with Section 62A-2-120; and
750          (ii) is subject to a background check established in a statute or rule governing a public
751     transit district or other public transit district policy.
752          Section 6. Coordinating H.B. 468 with H.B. 60 -- Technical and substantive
753     amendments.
754          If this H.B. 468 and H.B. 60, Juvenile Justice Modifications, both pass and become law,
755     it is the intent of the Legislature that when the Office of Legislative Research and General
756     Counsel prepares the Utah Code database for publication on October 1, 2023, Section
757     34-52-201 be amended to read:
758          "(1) [A] Except as provided in Subsections (3) and (6), a public employer may not:
759          (a) exclude an applicant from an initial interview because of:
760          (i) a past criminal conviction[.] or juvenile adjudication; or
761          (ii) if the applicant is a mental health professional applicant, an arrest for an offense
762     that occurred before the applicant was 18 years old;
763          (b) make an inquiry related to an applicant's expunged criminal or juvenile delinquency
764     history;
765          (c) when making a hiring decision regarding a mental health professional applicant,
766     consider:
767          (i) an arrest for an offense that occurred before the mental health professional applicant
768     was 18 years old;
769          (ii) an arrest not followed by a criminal conviction or juvenile adjudication;
770          (iii) a juvenile adjudication; or
771          (iv) a past criminal conviction if:
772          (A) the sentence for the criminal conviction is terminated; and
773          (B) the mental health professional applicant was not incarcerated for the past criminal
774     conviction or the mental health professional applicant's incarceration for the past criminal
775     conviction ended at least three years before the day on which the mental health professional
776     applicant applied for employment; or
777          (d) deny a mental health professional applicant employment based on a past criminal
778     conviction that does not bear a direct relationship to the mental health professional applicant's
779     ability to safely or competently perform the duties of employment.
780          (2) A public employer excludes an applicant from an initial interview under Subsection
781     (1) if the public employer:
782          [(a) requires an applicant to disclose, on an employment application, a criminal
783     conviction;]
784          [(b) requires an applicant to disclose, before an initial interview, a criminal conviction;
785     or]
786          [(c) if no interview is conducted, requires an applicant to disclose, before making a
787     conditional offer of employment, a criminal conviction.]
788          (a) requires an applicant to disclose a criminal conviction or juvenile adjudication:
789          (i) on an employment application;
790          (ii) before an initial interview; or
791          (iii) if no interview is conducted, before making a conditional offer of employment; or
792          (b) requires an applicant who is a mental health professional applicant to disclose an
793     arrest for an offense that occurred before the applicant was 18 years old:
794          (i) on an employment application;
795          (ii) before an initial interview; or
796          (iii) if no interview is conducted, before making a conditional offer of employment.
797          (3) A public employer may not deny a mental health professional applicant
798     employment that requires the mental health professional applicant to provide substance use
799     treatment based on:
800          (a) the mental health professional applicant's participation in substance use treatment;
801     or
802          (b) a past criminal conviction for a nonviolent drug offense if:
803          (i) the sentence for the criminal conviction is terminated; and
804          (ii) (A) the mental health professional applicant was not incarcerated for the past
805          criminal conviction; or
806          (B) the mental health professional applicant's incarceration for the past criminal
807     conviction ended at least three years before the day on which the mental health professional
808     applicant applied for employment.
809          [(3) (a) A public employer may not make any inquiry related to an applicant's expunged
810     criminal history.]
811          [(b)] (4) An applicant seeking employment from a public employer may answer a
812     question related to an expunged criminal or juvenile delinquency record as though the action
813     underlying the expunged criminal or juvenile delinquency record never occurred.
814          [(4) Subject to] (5) Except as provided in Subsections (1) through (3), [nothing in this
815     section prevents] this section does not prevent a public employer from:
816          (a) asking an applicant for information about an applicant's criminal conviction or
817     juvenile delinquency history during an initial interview or after an initial interview; or
818          (b) considering an applicant's criminal conviction or juvenile delinquency history when
819     making a hiring decision.
820          [(5)] (6)(a) Subsections (1) through [(3)] (4) do not apply:
821          [(a)] (i) if federal, state, or local law, including corresponding administrative rules,
822     requires the consideration of an applicant's criminal conviction or juvenile delinquency history;
823          [(b)] (ii) to a public employer that is a law enforcement agency;
824          [(c)] (iii) to a public employer that is part of the criminal or juvenile justice system;
825          [(d)] (iv) to a public employer seeking a nonemployee volunteer;
826          [(e)] (v) to a public employer that works with children or vulnerable adults;
827          [(f)] (vi) to the Department of Alcoholic Beverage Services created in Section
828     32B-2-203;
829          [(g)] (vii) to the State Tax Commission;
830          [(h)] (viii) to a public employer whose primary purpose is performing financial or
831     fiduciary functions; [and] or
832          [(i)] (ix) to a public transit district hiring or promoting an individual for a safety
833     sensitive position described in Section 17B-2a-825.
834          (b) Subsections (1)(c)(iv) and (1)(d) do not apply to a criminal conviction for:
835          (i) a violent felony as defined in Section 76-3-203.5; or
836          (ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
837     Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
838          (c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
839     public employer.".