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Second Substitute S.B. 101
Senator Leonard M. Blackham proposes the following substitute bill:
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CRIMINAL BACKGROUND CHECKS FOR
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LICENSED PROVIDERS OF HUMAN
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SERVICES
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Leonard M. Blackham
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This act amends the Human Services Code. The act adds new defined terms and modifies
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others. The act excludes individuals serving on certain governing bodies and boards from
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the requirement of criminal background checks. The act modifies licensing requirements
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of human services licensees and persons associated with a licensee. The act amends criminal
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background check provisions. The act requires that the Department of Human Services and
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the Human Services Licensing Board conduct a comprehensive review of criminal and court
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records and related circumstances in connection with certain convictions found in a search.
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The act clarifies and modifies the process for challenging a decision by the department not
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to approve a person to have direct access in a licensee program serving children or
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vulnerable adults. The act makes technical changes.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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62A-2-101, as last amended by Chapter 358, Laws of Utah 1998
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62A-2-120, as enacted by Chapter 358, Laws of Utah 1998
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62A-2-121, as last amended by Chapter 164, Laws of Utah 1999
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ENACTS:
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62A-2-122, Utah Code Annotated 1953
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REPEALS:
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62A-4a-413, as last amended by Chapters 263 and 358, Laws of Utah 1998
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-2-101
is amended to read:
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62A-2-101. Definitions.
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As used in this chapter:
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(1) "Adult day care" means continuous care and supervision for three or more adults for
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at least four but less than 24 hours a day, that meets the needs of functionally impaired adults
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through a comprehensive program that provides a variety of health, social, recreational, and related
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support services in a protective setting.
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(2) "Child" means a person under 18 years of age.
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[(2)] (3) "Child placing" means receiving, accepting, or providing custody or care for any
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child under 18 years of age, temporarily or permanently, for the purpose of:
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(a) finding a person to adopt the child;
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(b) placing the child temporarily or permanently in a home for adoption; or
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(c) foster home placement.
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[(3)] (4) "Client" means an individual who receives or has received services from a human
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services licensee under this chapter.
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[(4)] (5) "Day treatment" means specialized treatment for less than 24 hours a day for four
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or more persons who are unrelated to the owner or provider and who have emotional,
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psychological, developmental, physical, or behavioral dysfunctions, impairments, or chemical
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dependencies. Day treatment is provided in lieu of, or in coordination with, a more restrictive
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residential or inpatient environment or service.
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[(5)] (6) "Department" means the Department of Human Services.
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(7) "Direct access" means that an individual has, or likely will have, contact with or access
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to a child or vulnerable adult that provides the individual with an opportunity for personal
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communication or touch.
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[(6)] (8) "Director" means the director of the Office of Licensing.
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[(7)] (9) "Domestic violence treatment program" means a nonresidential program designed
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to provide psychological treatment and educational services to perpetrators and victims of
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domestic violence.
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(10) "Elder adult" means a person 65 years of age or older.
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[(8)] (11) "Executive director" means the executive director of the [Department of Human
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Services] department.
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[(9)] (12) "Human services licensee" or "licensee" means a youth program, resource family
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home, or a facility or program, licensed by the department, that provides care, secure treatment,
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inpatient treatment, residential treatment, residential support, adult day care, day treatment,
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outpatient treatment, domestic violence treatment, child placing services, or social detoxification.
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[(10)] (13) "Licensing board" means the Human Services Licensing Board.
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(14) "Minor" has the same meaning as "child."
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[(11)] (15) "Office" means the Office of Licensing within the Department of Human
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Services.
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[(12)] (16) "Outpatient treatment" means individual, family, or group therapy or
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counseling designed to improve and enhance social or psychological functioning for those whose
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physical and emotional status allows them to continue functioning in their usual living
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environment.
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[(13)] (17) (a) "Person associated with [a] the licensee" means an owner, director, member
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of the governing body, employee, provider of care, [and] or volunteer of a human services licensee
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or of an applicant to become a licensee.
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(b) Notwithstanding Subsection (17)(a), "person associated with the licensee" does not
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include an individual serving on either of the following bodies unless that individual has direct
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access to children or vulnerable adults:
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(i) a county governing body designated as a local mental health authority under Section
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17A-3-602
or as a local substance abuse authority under Section
17A-3-701
; or
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(ii) a board of an organization operating under a contract to provide comprehensive mental
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health or substance abuse programs or services for the local mental health authority or substance
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abuse authority.
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[(14)] (18) "Residential support" means arranging for or providing the necessities of life
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as a protective service to individuals or families who are disabled or who are experiencing a
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dislocation or emergency which prevents them from providing these services for themselves or
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their families. Treatment is not a necessary component of residential support.
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[(15)] (19) "Residential treatment" means a 24-hour group living environment for four or
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more individuals unrelated to the owner or provider that offers room or board and specialized
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treatment, rehabilitation, or habilitation services for persons with emotional, psychological,
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developmental, or behavioral dysfunctions, impairments, or chemical dependencies. In residential
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treatment, individuals are assisted in acquiring the social and behavioral skills necessary for living
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independently in the community.
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[(16)] (20) "Resource family home" means a home licensed to provide services to a child
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in the custody of the state and includes a foster care home and a legal risk home.
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[(17)] (21) "Secure treatment" means 24-hour specialized residential treatment or care for
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persons whose current functioning is such that they cannot live independently or in a less
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restrictive environment. Secure treatment differs from residential treatment to the extent that it
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requires intensive supervision, locked doors, and other security measures which are imposed on
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residents with neither their consent nor control.
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[(18)] (22) "Social detoxification" means short-term residential services for persons who
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are intoxicated, that are provided outside of a health care facility licensed under Title 26, Chapter
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21, Health Care Facility Licensure and Inspection Act, and that include:
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(a) room and board for persons who are unrelated to the owner or manager of the facility;
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(b) specialized rehabilitation to acquire sobriety; and
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(c) aftercare services.
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[(19)] (23) "Unrelated persons" means persons other than parents, legal guardians,
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grandparents, brothers, sisters, uncles, or aunts.
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(24) "Vulnerable adult" means an elder adult or an adult who has a mental or physical
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impairment that substantially affects the person's ability to:
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(a) provide personal protection;
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(b) provide necessities such as food, shelter, clothing, or mental or other health care;
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(c) obtain services necessary for health, safety, or welfare;
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(d) carry out the activities of daily living;
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(e) manage the adult's own resources; or
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(f) comprehend the nature and consequences of remaining in a situation of abuse, neglect,
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or exploitation.
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[(20)] (25) (a) "Youth program" means a nonresidential program, designed to provide
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behavioral, substance abuse or mental health services to minors that:
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[(a)] (i) serves either adjudicated or nonadjudicated youth;
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[(b)] (ii) charges a fee for its services;
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[(c)] (iii) may or may not provide host homes or other arrangements for overnight
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accommodation of the youth;
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[(d)] (iv) may or may not provide all or part of its services in the outdoors;
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[(e)] (v) may or may not limit or censor access to parents or guardians; and
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[(f)] (vi) prohibits or restricts a minor's ability to leave the program at any time of his own
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free will[; and].
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[(g) will not apply to] (b) "Youth program" does not include recreational programs such
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as Boy Scouts, Girl Scouts, 4-H, and other such organizations.
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Section 2.
Section
62A-2-120
is amended to read:
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62A-2-120. Criminal background checks.
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(1) (a) [A human services licensee or individual applying for or renewing a] An applicant
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for an initial license [to provide child-placing services, youth programs, substitute care, foster care,
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or institutionalized care to children,] or a license renewal under this chapter shall submit to the
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department the [name] names and other identifying information, which may include fingerprints,
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of all persons associated with the licensee, as defined in Section
62A-2-101
, with direct access to
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children or vulnerable adults. This information for a given person associated with the licensee
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shall be submitted before that person is permitted to have direct access to children or vulnerable
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adults.
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(b) The Criminal Investigations and Technical Services Division of the Department of
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Public Safety shall process that information to determine whether the individual has been
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convicted of any crime.
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(c) If an individual has not lived in Utah for five years, the individual shall submit
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fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted
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to the FBI through the Criminal Investigations and Technical Services Division.
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[(2) A person associated with the licensee who has a felony conviction may not provide
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child-placing services, foster care, youth programs, substitute care, or institutionalized care for
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children in facilities or programs licensed by the department.]
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[(3) The department shall adopt rules defining the circumstances under which a person
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who has been convicted of a misdemeanor may provide child-placing services, foster care, youth
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programs, substitute care, or institutionalized care for children in a facility or program licensed by
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the department.]
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(2) The department shall approve a person for whom identifying information is submitted
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under Subsection (1) to have direct access in the licensee program serving children or vulnerable
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adults if:
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(a) the person is found to have no criminal history record; or
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(b) (i) the only convictions in the person's criminal history record are misdemeanors or
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infractions not involving any of the offenses described in Subsection (3); and
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(ii) the date of the last conviction under Subsection (2)(b)(i) is more than five years before
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the date of the search.
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(3) The department may not approve a person to have direct access in the licensee program
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serving children or vulnerable adults if the person has at any time been convicted of:
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(a) a felony, misdemeanor other than a protective order violation in a domestic case, or
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infraction involving an offense identified as domestic violence, lewdness, assault, or battery;
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(b) a violation of any pornography law, including sexual exploitation of a minor;
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(c) prostitution;
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(d) an offense identified in Title 76, Utah Criminal Code, as an offense against the family
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or an offense against the person; or
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(e) an offense identified in Title 76, Utah Criminal Code, as a sexual offense.
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(4) (a) The department and the Human Services Licensing Board shall conduct a
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comprehensive review of criminal and court records and related circumstances if a person for
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whom identifying information is submitted under Subsection (1):
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(i) has been convicted at any time of any felony not listed in Subsection (3); or
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(ii) has been convicted within five years of the date of the search of any misdemeanor or
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infraction not listed in Subsection (3).
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(b) The comprehensive review under Subsection (4)(a) shall include an examination of:
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(i) the date of the offense;
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(ii) the nature and seriousness of the offense;
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(iii) the circumstances under which the offense occurred;
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(iv) the age of the offender when the offense was committed;
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(v) whether the offense was an isolated or repeated incident;
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(vi) whether the offense directly relates to abuse of a child or vulnerable adult, including:
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(A) actual or threatened, nonaccidental physical or mental harm;
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(B) sexual abuse;
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(C) sexual exploitation; and
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(D) negligent treatment;
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(vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
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treatment received, or additional academic or vocational schooling completed, by the person; and
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(viii) any other pertinent information.
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(c) At the conclusion of the comprehensive review under this Subsection (4), the
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department shall either approve or not approve the person who is the subject of the review to have
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direct access to children or vulnerable adults, based upon the determination of the department and
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the Human Services Licensing Board of whether or not granting approval would likely create a risk
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of harm to a child or vulnerable adult.
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(d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
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department may make rules, consistent with this chapter, defining procedures for the
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comprehensive review described in this Subsection (4).
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(5) (a) Within 30 days after receiving the identifying information for a person under
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Subsection (1), the department shall give written notice to the person and to the human services
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licensee or applicant with whom the person is associated of:
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(i) the department's decision regarding its background screening clearance and findings;
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and
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(ii) a listing of any convictions found in the search.
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(b) With the notice described in Subsection (5)(a), the department shall also give to the
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person the details of any comprehensive review conducted under Subsection (4).
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(c) If the notice under Subsection (5)(a) states that the person is not approved to have
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direct access to children or vulnerable adults, the notice shall further advise the persons to whom
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the notice is given that either the person or the human services licensee or applicant with whom
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the person is associated, or both, may, pursuant to Subsection
62A-2-111
(2), request a hearing in
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the department's Office of Administrative Hearings, to challenge the department's decision.
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(d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
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department shall make rules, consistent with this chapter:
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(i) defining procedures for the challenge of its background screening decision described
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in this Subsection (5); and
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(ii) expediting the process for renewal of a license pursuant to the requirements of this
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section and other applicable sections.
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Section 3.
Section
62A-2-121
is amended to read:
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62A-2-121. Access to child abuse and neglect information for licensing purposes.
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(1) With respect to human services licensees, the department may access only the licensing
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part of the Division of Child and Family Service's management information system created by
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Section
62A-4a-116
for the purpose of:
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(a) determining whether a person associated with a licensee, [who provides care described
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in Subsection (2)] with direct access to children, has a substantiated finding of abuse or neglect;
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and
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(b) informing a licensee[, who provides care described in Subsection (2),] that a person
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associated with the licensee has a substantiated finding of child abuse or neglect.
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[(2) (a) A licensee or individual applying for or renewing a license to provide child-placing
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services, youth programs, substitute care, foster care, or institutionalized care to children shall
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submit to the department the name and other identifying information of a person associated with
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the licensee.]
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[(b) The office] (2) After receiving identifying information for a person under Subsection
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62A-2-120
(1), the department shall process the information [to determine whether the licensee or
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a person associated with a licensee has a substantiated finding of child abuse or neglect] for the
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purposes described in Subsection (1).
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(3) The [office] department shall adopt rules under Title 63, Chapter 46a, Utah
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Administrative Rulemaking Act, consistent with this chapter, defining the circumstances under
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which a person who has direct access to children and who has a substantiated finding of child
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abuse or neglect under Title 62A, Chapter 4a, Child and Family Services, may provide
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[child-placing services, foster care, youth programs, substitute care, or institutionalized care for
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children in a facility licenced by the department] services to children.
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Section 4.
Section
62A-2-122
is enacted to read:
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62A-2-122. Access to vulnerable adult abuse and neglect information for licensing
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purposes.
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(1) With respect to human services licensees, the department may access the data base
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created by Section
62A-3-311.1
for the purpose of:
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(a) determining whether a person associated with a licensee, with direct access to
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vulnerable adults, has a substantiated finding of abuse, neglect, or exploitation; and
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(b) informing a licensee that a person associated with the licensee has a substantiated
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finding of abuse, neglect, or exploitation.
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(2) After receiving identifying information for a person under Subsection
62A-2-120
(1),
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the department shall process the information for the purposes described in Subsection (1).
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(3) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative
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Rulemaking Act, consistent with this chapter and consistent with Section
62A-3-311.1
, defining
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the circumstances under which a person who has direct access to vulnerable adults and who has
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a substantiated finding of abuse, neglect, or exploitation may provide services to vulnerable adults.
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Section 5. Repealer.
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This act repeals:
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Section 62A-4a-413, Agencies and individuals providing services to children -- Felony
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or misdemeanor conviction.
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