This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 27, 2024 at 9:32 PM by lpoole.
This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Fri, Mar 1, 2024 at 9:21 PM by lpoole.
Representative Karianne Lisonbee proposes the following substitute bill:


1     
VULNERABLE POPULATION AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Karianne Lisonbee

5     
Senate Sponsor: Wayne A. Harper

6     

7     LONG TITLE
8     General Description:
9          This bill concerns protections for vulnerable populations.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     modifies provisions relating to a monitoring device in the room of a resident of an
14     assisted living facility and includes Ŝ→ [nursing home] certain other ←Ŝ facilities;
15          ▸     requires fingerprint background checks for certain individuals who will have direct
16     access to patients in certain health care facilities;
17          ▸     requires certain facilities to report certain incidents of abuse, neglect, or exploitation
18     to the Department of Health and Human Services (department), the Division of
19     Child and Family Services, Adult Protective Services, or a law enforcement agency;
20          ▸     requires, with an automatic repeal provision, the department to collect and compile
21     all reported incidents of abuse, neglect, or exploitation at certain facilities and
22     annually report the information to the Health and Human Services Interim
23     Committee;
24          ▸     prohibits inmates from receiving certain training while incarcerated; and
25          ▸     makes technical and conforming changes.
26     Money Appropriated in this Bill:
27          None
28     Other Special Clauses:
29          This bill provides a special effective date.
30          This bill provides a coordination clause.
31     Utah Code Sections Affected:
32     AMENDS:
33          26B-2-236, as renumbered and amended by Laws of Utah 2023, Chapter 305
34          26B-2-238, as renumbered and amended by Laws of Utah 2023, Chapter 305
35          26B-2-240, as renumbered and amended by Laws of Utah 2023, Chapter 305
36          63I-2-226 (Effective 07/01/24), as last amended by Laws of Utah 2023, Chapters 33,
37     139, 249, 295, 310, and 465 and repealed and reenacted by Laws of Utah 2023,
38     Chapter 329 and last amended by Coordination Clause, Laws of Utah 2023, Chapter
39     329
40          64-13-48, as enacted by Laws of Utah 2022, Chapter 144
41     ENACTS:
42          26B-2-243, Utah Code Annotated 1953
43     Utah Code Sections Affected By Coordination Clause:
44          26B-2-240, as renumbered and amended by Laws of Utah 2023, Chapter 305
45     

46     Be it enacted by the Legislature of the state of Utah:
47          Section 1. Section 26B-2-236 is amended to read:
48          26B-2-236. Monitoring device -- Installation, notice, and consent -- Admission
49     and discharge -- Liability.
50          (1) As used in this section:
51          (a) "Facility" means Ŝ→ :
51a     (i) ←Ŝ an assisted living facility Ŝ→ ; ←Ŝ or
51b     Ŝ→ (ii) a secure memory care unit inside of:
51c          (A) ←Ŝ a nursing care facility Ŝ→ [.] ; or
51d     (B) any other medical or mental health facility. ←Ŝ
52          (b) "Legal representative" means an individual who is legally authorized to make
53     health care decisions on behalf of another individual.
54          [(b)] (c) (i) "Monitoring device" means:
55          (A) a video surveillance camera; or
56          (B) a microphone or other device that captures audio.
57          (ii) "Monitoring device" does not include:
58          (A) a device that is specifically intended to intercept wire, electronic, or oral
59     communication without notice to or the consent of a party to the communication; or
60          (B) a device that is connected to the Internet or that is set up to transmit data via an
61     electronic communication.
62          [(c)] (d) "Resident" means an individual who receives health care from a facility.
63          [(d)] (e) "Room" means a resident's private or shared primary living space.
64          [(e)] (f) "Roommate" means an individual sharing a room with a resident.
65          (2) A resident or the resident's legal representative may operate or install a monitoring
66     device in the resident's room if the resident and the resident's legal representative, if any, unless
67     the resident is incapable of informed consent:
68          (a) notifies the resident's [assisted living] facility in writing that the resident or the
69     resident's legal representative, if any:
70          (i) intends to operate or install a monitoring device in the resident's room; and
71          (ii) consents to a waiver agreement, if required by [an assisted living] a facility;
72          (b) obtains written consent from each of the resident's roommates, and their legal
73     representative, if any, that specifically states the hours when each roommate consents to the
74     resident or the resident's legal representative operating the monitoring device; and
75          (c) assumes all responsibility for any cost related to installing or operating the
76     monitoring device.
77          (3) [An assisted living] A facility shall not be civilly or criminally liable to:
78          (a) a resident or resident's roommate for the operation of a monitoring device
79     consistent with this part; and
80          (b) any person other than the resident or resident's roommate for any claims related to
81     the use or operation of a monitoring device consistent with this part, unless the claim is caused
82     by the acts or omissions of an employee or agent of the [assisted living] facility.
83          (4) (a) [An assisted living] A facility may not deny an individual admission to the
84     facility for the sole reason that the individual or the individual's legal representative requests to
85     install or operate a monitoring device in the individual's room.
86          (b) [An assisted living] A facility may not discharge a resident for the sole reason that
87     the resident or the resident's legal representative requests to install or operate a monitoring
88     device in the individual's room.
89          (c) A facility shall prohibit all employees of a facility from deactivating, repositioning,
90     or otherwise interfering with the operation of a monitoring device in an individual's room.
91          Ŝ→ [[] ←Ŝ Ŝ→ [(c)] (d) ←Ŝ Ŝ→ [An assisted living] A ←Ŝ facility may require the resident
91a     or the resident's legal
92     representative to place a sign near the entrance of the resident's room that states that the room
93     contains a monitoring device. Ŝ→ []] ←Ŝ
94          Ŝ→ [(5) Upon the request of a resident or the resident's legal representative, a facility may
95     not inform the employees of the facility of the presence of the monitoring device in the
96     individual's room.
97          [(5)] (6)] (5) ←Ŝ Notwithstanding any other provision of this part, an individual may not,
97a     under
98     this part, operate a monitoring device in [an assisted living] a facility without a court order:
99          (a) in secret; or
100          (b) with an intent to intercept a wire, electronic, or oral communication without notice
101     to or the consent of a party to the communication.
102          Section 2. Section 26B-2-238 is amended to read:
103          26B-2-238. Definitions for Sections 26B-2-238 through 26B-2-241.
104          As used in this section and Sections 26B-2-239, 26B-2-240, and 26B-2-241:
105          (1) "Clearance" means approval by the department under Section 26B-2-239 for an
106     individual to have direct patient access.
107          (2) "Covered body" means a covered provider, covered contractor, or covered
108     employer.
109          (3) "Covered contractor" means a person that supplies covered individuals, by contract,
110     to a covered employer or covered provider.
111          (4) "Covered employer" means an individual who:
112          (a) engages a covered individual to provide services in a private residence to:
113          (i) an aged individual, as defined by department rule; or
114          (ii) a disabled individual, as defined by department rule;
115          (b) is not a covered provider; and
116          (c) is not a licensed health care facility within the state.
117          (5) "Covered individual":
118          (a) means an individual:
119          (i) whom a covered body engages; and
120          (ii) who may have direct patient access;
121          (b) includes:
122          (i) a nursing assistant, as defined by department rule;
123          (ii) a personal care aide, as defined by department rule;
124          (iii) an individual licensed to engage in the practice of nursing under Title 58, Chapter
125     31b, Nurse Practice Act;
126          (iv) a provider of medical, therapeutic, or social services, including a provider of
127     laboratory and radiology services;
128          (v) an executive;
129          (vi) administrative staff, including a manager or other administrator;
130          (vii) dietary and food service staff;
131          (viii) housekeeping and maintenance staff; and
132          (ix) any other individual, as defined by department rule, who has direct patient access;
133     and
134          (c) does not include a student, as defined by department rule, directly supervised by a
135     member of the staff of the covered body or the student's instructor.
136          (6) "Covered provider" means:
137          (a) an end stage renal disease facility;
138          (b) a long-term care hospital;
139          (c) a nursing care facility;
140          (d) a small health care facility;
141          (e) an assisted living facility;
142          (f) a hospice;
143          (g) a home health agency; or
144          (h) a personal care agency.
145          (7) "Direct patient access" means for an individual to be in a position where the
146     individual could, in relation to a patient or resident of the covered body who engages the
147     individual:
148          (a) cause physical or mental harm;
149          (b) commit theft; or
150          (c) view medical or financial records.
151          (8) "Engage" means to obtain one's services:
152          (a) by employment;
153          (b) by contract;
154          (c) as a volunteer; or
155          (d) by other arrangement.
156          (9) "Long-term care hospital":
157          (a) means a hospital that is certified to provide long-term care services under the
158     provisions of 42 U.S.C. Sec. 1395tt; and
159          (b) does not include a critical access hospital, designated under 42 U.S.C. Sec.
160     1395i-4(c)(2).
161          (10) "Patient" means an individual who receives health care services from one of the
162     following covered providers:
163          (a) an end stage renal disease facility;
164          (b) a long-term care hospital;
165          (c) a hospice;
166          (d) a home health agency; or
167          (e) a personal care agency.
168          (11) "Personal care agency" means a health care facility defined by department rule.
169          (12) "Rap back system" means a system that enables authorized entities to receive
170     ongoing status notifications of any criminal history reported on individuals who are registered
171     in the system.
172          [(12)] (13) "Resident" means an individual who receives health care services from one
173     of the following covered providers:
174          (a) a nursing care facility;
175          (b) a small health care facility;
176          (c) an assisted living facility; or
177          (d) a hospice that provides living quarters as part of its services.
178          [(13)] (14) "Residential setting" means a place provided by a covered provider:
179          (a) for residents to live as part of the services provided by the covered provider; and
180          (b) where an individual who is not a resident also lives.
181          [(14)] (15) "Volunteer" means an individual, as defined by department rule, who
182     provides services without pay or other compensation.
183     The following section is affected by a coordination clause at the end of this bill.
184          Section 3. Section 26B-2-240 is amended to read:
185          26B-2-240. Department authorized to grant, deny, or revoke clearance --
186     Department may limit direct patient access -- Clearance.
187          (1) The definitions in Section 26B-2-238 apply to this section.
188          (2) (a) As provided in this section, the department may grant, deny, or revoke clearance
189     for an individual, including a covered individual.
190          (b) The department may limit the circumstances under which a covered individual
191     granted clearance may have direct patient access, based on the relationship factors under
192     Subsection (4) and other mitigating factors related to patient and resident protection.
193          (c) The department shall determine whether to grant clearance for each applicant for
194     whom it receives:
195          (i) the personal identification information specified by the department under
196     Subsection (4)(b); and
197          (ii) any fees established by the department under Subsection (9).
198          (d) The department shall:
199          (i) establish a procedure for obtaining and evaluating relevant information concerning
200     covered individuals, including fingerprinting the applicant and submitting the prints to the
201     Criminal Investigations and Technical Services Division of the Department of Public Safety for
202     checking against applicable state, regional, and national criminal records files[.]; and
203          (ii) require that a finding of clearance include a fingerprint-based criminal history
204     background check in the databases described under Subsection (3)(a), including the inclusion
205     of the individual's fingerprints in a rap back system.
206          (3) The department may review the following sources to determine whether an
207     individual should be granted or retain clearance, which may include:
208          (a) Department of Public Safety arrest, conviction, and disposition records described in
209     Title 53, Chapter 10, Criminal Investigations and Technical Services Act, including
210     information in state, regional, and national records files;
211          (b) juvenile court arrest, adjudication, and disposition records, as allowed under
212     Section 78A-6-209;
213          (c) federal criminal background databases available to the state;
214          (d) the Division of Child and Family Services Licensing Information System described
215     in Section 80-2-1002;
216          (e) child abuse or neglect findings described in Section 80-3-404;
217          (f) the Division of Aging and Adult Services vulnerable adult abuse, neglect, or
218     exploitation database described in Section 26B-6-210;
219          (g) registries of nurse aids described in 42 C.F.R. Sec. 483.156;
220          (h) licensing and certification records of individuals licensed or certified by the
221     Division of Professional Licensing under Title 58, Occupations and Professions; and
222          (i) the List of Excluded Individuals and Entities database maintained by the United
223     States Department of Health and Human Services' Office of Inspector General.
224          (4) The department shall adopt rules that:
225          (a) specify the criteria the department will use to determine whether an individual is
226     granted or retains clearance:
227          (i) based on an initial evaluation and ongoing review of information under Subsection
228     (3); and
229          (ii) including consideration of the relationship the following may have to patient and
230     resident protection:
231          (A) warrants for arrest;
232          (B) arrests;
233          (C) convictions, including pleas in abeyance;
234          (D) pending diversion agreements;
235          (E) adjudications by a juvenile court under Section 80-6-701 if the individual is over
236     28 years old and has been convicted, has pleaded no contest, or is subject to a plea in abeyance
237     or diversion agreement for a felony or misdemeanor, or the individual is under 28 years old;
238     and
239          (F) any other findings under Subsection (3); and
240          (b) specify the personal identification information that must be submitted by an
241     individual or covered body with an application for clearance, including:
242          (i) the applicant's Social Security number; and
243          (ii) fingerprints.
244          (5) For purposes of Subsection (4)(a), the department shall classify a crime committed
245     in another state according to the closest matching crime under Utah law, regardless of how the
246     crime is classified in the state where the crime was committed.
247          (6) The Department of Public Safety, the Administrative Office of the Courts, the
248     Division of Professional Licensing, and any other state agency or political subdivision of the
249     state:
250          (a) shall allow the department to review the information the department may review
251     under Subsection (3); and
252          (b) except for the Department of Public Safety, may not charge the department for
253     access to the information.
254          (7) The department shall adopt measures to protect the security of the information it
255     reviews under Subsection (3) and strictly limit access to the information to department
256     employees responsible for processing an application for clearance.
257          (8) The department may disclose personal identification information specified under
258     Subsection (4)(b) to other divisions and offices within the department to verify that the subject
259     of the information is not identified as a perpetrator or offender in the information sources
260     described in Subsections (3)(d) through (f).
261          (9) The department may establish fees, in accordance with Section 63J-1-504, for an
262     application for clearance, which may include:
263          (a) the cost of obtaining and reviewing information under Subsection (3);
264          (b) a portion of the cost of creating and maintaining the Direct Access Clearance
265     System database under Section 26B-2-241; and
266          (c) other department costs related to the processing of the application and the ongoing
267     review of information pursuant to Subsection (4)(a) to determine whether clearance should be
268     retained.
269          Section 4. Section 26B-2-243 is enacted to read:
270          26B-2-243. Data collection and reporting requirements concerning incidents of
271     abuse, neglect, or exploitation.
272          (1) As used in this section, "facility" means Ŝ→ [an assisted living facility or a nursing care
273     facility] the same as that term is defined in Section 26B-2-236 ←Ŝ .
274          (2) In addition to the requirements in Section 26B-6-205 or 80-2-602, the department
275     shall require a facility to report any incident of abuse, neglect, or exploitation of a resident:
276          (a) to the department; and
277          (b) to the Division of Child and Family Services or Adult Protective Services, if
278     appropriate, or a law enforcement agency with jurisdiction over the covered provider in which
279     the alleged incident occurred.
280          (3) The department shall collect and compile all reported incidents described in
281     Subsection (2)(a) and annually on or before June 30 report the data to the Health and Human
282     Services Interim Committee.
283          Section 5. Section 63I-2-226 (Effective 07/01/24) is amended to read:
284          63I-2-226 (Effective 07/01/24). Repeal dates: Titles 26A through 26B.
285          (1) Section 26B-1-241 is repealed July 1, 2024.
286          (2) Section 26B-1-302 is repealed on July 1, 2024.
287          (3) Section 26B-1-313 is repealed on July 1, 2024.
288          (4) Section 26B-1-314 is repealed on July 1, 2024.
289          (5) Section 26B-1-321 is repealed on July 1, 2024.
290          (6) Section 26B-1-419, which creates the Utah Health Care Workforce Financial
291     Assistance Program Advisory Committee, is repealed July 1, 2027.
292          (7) In relation to the Air Ambulance Committee, on July 1, 2024, Subsection
293     26B-2-231(1)(a) is amended to read:
294          "(a) provide the patient or the patient's representative with the following information
295     before contacting an air medical transport provider:
296          (i) which health insurers in the state the air medical transport provider contracts with;
297          (ii) if sufficient data is available, the average charge for air medical transport services
298     for a patient who is uninsured or out of network; and
299          (iii) whether the air medical transport provider balance bills a patient for any charge not
300     paid by the patient's health insurer; and".
301          (8) Section 26B-2-243 is repealed July 1, 2027.
302          [(8)] (9) Section 26B-3-142 is repealed July 1, 2024.
303          [(9)] (10) Subsection 26B-3-215(5), related to reporting on coverage for in vitro
304     fertilization and genetic testing, is repealed July 1, 2030.
305          [(10)] (11) Section 26B-4-702, related to the Utah Health Care Workforce Financial
306     Assistance Program, is repealed July 1, 2027.
307          [(11)] (12) Section 26B-5-117, related to early childhood mental health support grant
308     programs, is repealed January 2, 2025.
309          [(12)] (13) Subsection 26B-7-117(3), related to reports to the Legislature on syringe
310     exchange and education, is repealed January 1, 2027.
311          [(13)] (14) Section 26B-7-120, relating to sickle cell disease, is repealed on July 1,
312     2025.
313          Section 6. Section 64-13-48 is amended to read:
314          64-13-48. Educational and career-readiness programs.
315          (1) The department shall, in accordance with Subsection 64-13-6(1)(c), ensure that
316     appropriate evidence-based and evidence-informed educational or career-readiness programs
317     are made available to an inmate as soon as practicable after the creation of the inmate's case
318     action plan.
319          (2) The department shall provide incarcerated women with substantially equivalent
320     educational and career-readiness opportunities as incarcerated men.
321          (3) Before an inmate begins an educational or career-readiness program, the
322     department shall provide reasonable access to resources necessary for an inmate to apply for
323     grants or other available financial aid that may be available to pay for the inmate's program.
324          (4) (a) The department shall consider an inmate's current participation in an
325     educational or career-readiness program when the department makes a decision with regard to
326     an inmate's:
327          (i) transfer to another area or facility; or
328          (ii) appropriate disciplinary sanction.
329          (b) When possible, the department shall use best efforts to allow an inmate to continue
330     the inmate's participation in an educational or career-readiness program while the facility is
331     under lockdown, quarantine, or a similar status.
332          (5) (a) The department shall maintain records on an inmate's educational progress,
333     including completed life skills, certifications, and credit- and non-credit-bearing courses, made
334     while the inmate is incarcerated.
335          (b) The department shall facilitate the transfer of information related to the inmate's
336     educational process upon the inmate's release, including the inmate's post-release contact
337     information and the records described in Subsection (5)(a), to:
338          (i) the inmate; or
339          (ii) an entity that the inmate has authorized to receive the inmate's records or
340     post-release contact information, including an institution:
341          (A) from which the inmate received educational instruction while the inmate was
342     incarcerated; or
343          (B) at which the inmate plans to continue the inmate's post-incarceration education.
344          (6) Beginning May 1, 2023, the department shall provide an annual report to the
345     Higher Education Appropriations Subcommittee regarding educational and career-readiness
346     programs for inmates, which shall include:
347          (a) the number of inmates who are participating in an educational or career-readiness
348     program, including an accredited postsecondary education program;
349          (b) the percentage of inmates who are participating in an educational or
350     career-readiness program as compared to the total inmate population;
351          (c) inmate program completion and graduation data, including the number of
352     completions and graduations in each educational or career-readiness program;
353          (d) the potential effect of educational or career-readiness programs on recidivism, as
354     determined by a comparison of:
355          (i) the total number of inmates who return to incarceration after a previous
356     incarceration; and
357          (ii) the number of inmates who return to incarceration after a previous incarceration
358     who participated in or completed an educational or career-readiness program;
359          (e) the number of inmates who were transferred to a different facility while currently
360     participating in an educational or career-readiness program, including the number of inmates
361     who were unable to continue a program after a transfer to a different facility; and
362          (f) the department's:
363          (i) recommendation for resources that may increase inmates' access to and participation
364     in an educational or career-readiness program; and
365          (ii) estimate of how many additional inmates would participate in an educational or
366     career-readiness program if the resources were provided.
367          (7) The department may not offer training for an inmate to become a certified nursing
368     assistant certified by the Department of Health and Human Services.
369          [(7)] (8) The department may make rules in accordance with Section 64-13-10 and
370     Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to carry out the provisions of this
371     section.
372          Section 7. Effective date.
373          This bill takes effect on July 1, 2024.
374          Section 8. Coordinating H.B. 495 with S.B. 46.
375          If H.B. 495, Vulnerable Population Amendments, and S.B. 46, Health and Human
376     Services Amendments, both pass and become law, the Legislature intends that, on July 1, 2024,
377     Subsection 26B-2-240(2)(d) be amended to read:
378           "(d) The department shall:
379          (i) establish a procedure for obtaining and evaluating relevant information concerning
380     covered individuals, including fingerprinting the applicant and submitting the prints to the
381     Criminal Investigations and Technical Services Division of the Department of Public Safety for
382     checking against applicable state, regional, and national criminal records files[.]; and
383          (ii) require that a certification for direct patient access include a fingerprint-based
384     criminal history background check in the databases described under Subsection (3)(a),
385     including the inclusion of the individual's fingerprints in a rap back system.".