02-11 08:53 1st Sub. (Green) S.B. 240
Derrin R. Owens proposes the following substitute bill:
1
Congregate Care Modifications
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Derrin R. Owens
House Sponsor:
2
3
LONG TITLE
4
General Description:
5
This bill addresses congregate care programs.
6
Highlighted Provisions:
7
This bill:
8
▸ requires the Department of Health and Human Services (department) to take reasonable
9
effort to determine, within seven days after receiving a completed report about an
10
individual from the Bureau of Criminal Identification, whether to grant an application
11
for direct patient access;
12
▸ disallows the department from:
13
● restricting or prohibiting new admissions at a congregate care program on the sole
14
basis that the program is operating under a conditional license; or
15
● restricting or altering the rights of a congregate care program on the basis that the
16
program or facility has filed an adjudicative proceeding or appeal, or that an
17
adjudicative proceeding or appeal is pending;
18
▸ requires the department, in certain circumstances, to:
19
● inspect a congregate care program;
20
● provide notice to a congregate care program; or
21
● remove restrictions and conditions on a congregate care program's license; and
22
▸ makes technical changes.
23
Money Appropriated in this Bill:
24
None
25
Other Special Clauses:
26
None
27
Utah Code Sections Affected:
28
AMENDS:
1st Sub. S.B. 240 1st Sub. (Green) S.B. 240 02-11 08:53
29
26B-2-120, as last amended by Laws of Utah 2024, Chapter 234
30
26B-2-703, as enacted by Laws of Utah 2024, Chapter 267
31
32
Be it enacted by the Legislature of the state of Utah:
33
Section 1. Section 26B-2-120 is amended to read:
34
26B-2-120 . Background check -- Direct access to children or vulnerable adults.
35
(1) As used in this section:
36
(a)(i) "Applicant" means an individual who is associated with a certification,
37
contract, or licensee with the department under this part and has direct access,
38
including:
39
(A) an adoptive parent or prospective adoptive parent, including an applicant for
40
an adoption in accordance with Section 78B-6-128;
41
(B) a foster parent or prospective foster parent;
42
(C) an individual who provides respite care to a foster parent or an adoptive parent
43
on more than one occasion;
44
(D) an individual who transports a child for a youth transportation company;
45
(E) an individual who provides certified peer support, as defined in Section
46
26B-5-610;
47
(F) an individual who provides peer supports, has a disability or a family member
48
with a disability, or is in recovery from a mental illness or a substance use
49
disorder;
50
(G) an individual who has lived experience with the services provided by the
51
department, and uses that lived experience to provide support, guidance, or
52
services to promote resiliency and recovery;
53
(H) an individual who is identified as a mental health professional, licensed under
54
Title 58, Chapter 60, Mental Health Professional Practice Act, and engaged in
55
the practice of mental health therapy, as defined in Section 58-60-102;
56
(I) an individual, other than the child or vulnerable adult receiving the service,
57
who is 12 years old or older and resides in a home, that is licensed or certified
58
by the division;
59
(J) an individual who is 12 years old or older and is associated with a certification,
60
contract, or licensee with the department under this part and has or will likely
61
have direct access;
62
(K) a foster home licensee that submits an application for an annual background
- 2 - 02-11 08:53 1st Sub. (Green) S.B. 240
63
screening as required by Subsection 26B-2-105(4)(d)(iii); or
64
(L) a short-term relief care provider.
65
(ii) "Applicant" does not include:
66
(A) an individual who is in the custody of the Division of Child and Family
67
Services or the Division of Juvenile Justice and Youth Services;
68
(B) an individual who applies for employment with, or is employed by, the
69
Department of Health and Human Services;
70
(C) a parent of a person receiving services from the Division of Services for
71
People with Disabilities, if the parent provides direct care to and resides with
72
the person, including if the parent provides direct care to and resides with the
73
person pursuant to a court order; or
74
(D) an individual or a department contractor who provides services in an adults
75
only substance use disorder program, as defined by rule adopted by the
76
Department of Health and Human Services in accordance with Title 63G,
77
Chapter 3, Utah Administrative Rulemaking Act, and who is not a program
78
director or a member, as defined by Section 26B-2-105, of the program.
79
(b) "Application" means a background check application to the office.
80
(c) "Bureau" means the Bureau of Criminal Identification within the Department of
81
Public Safety, created in Section 53-10-201.
82
(d) "Criminal finding" means a record of:
83
(i) an arrest for a criminal offense;
84
(ii) a warrant for a criminal arrest;
85
(iii) charges for a criminal offense; or
86
(iv) a criminal conviction.
87
(e) "Direct access" means that an individual has, or likely will have:
88
(i) contact with or access to a child or vulnerable adult by which the individual will
89
have the opportunity for personal communication or touch with the child or
90
vulnerable adult; or
91
(ii) an opportunity to view medical, financial, or other confidential personal
92
identifying information of the child, the child's parent or legal guardian, or the
93
vulnerable adult.
94
(f)(i) "Direct access qualified" means that the applicant has an eligible determination
95
by the office within the license and renewal time period; and
96
(ii) no more than 180 days have passed since the date on which the applicant's
- 3 - 1st Sub. (Green) S.B. 240 02-11 08:53
97
association with a certification, contract, or licensee with the department expires.
98
(g) "Incidental care" means occasional care, not in excess of five hours per week and
99
never overnight, for a foster child.
100
(h) "Licensee" means an individual or a human services program licensed by the
101
division.
102
(i) "Non-criminal finding" means a record maintained in:
103
(i) the Division of Child and Family Services' Management Information System
104
described in Section 80-2-1001;
105
(ii) the Division of Child and Family Services' Licensing Information System
106
described in Section 80-2-1002;
107
(iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or
108
exploitation database described in Section 26B-6-210;
109
(iv) juvenile court arrest, adjudication, and disposition records;
110
(v) the Sex, Kidnap, and Child Abuse Offender Registry described in Title 77,
111
Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex
112
offender registry; or
113
(vi) a state child abuse or neglect registry.
114
(j) "Office" means the Office of Background Processing within the department.
115
(k) "Personal identifying information" means:
116
(i) current name, former names, nicknames, and aliases;
117
(ii) date of birth;
118
(iii) physical address and email address;
119
(iv) telephone number;
120
(v) driver license or other government-issued identification;
121
(vi) social security number;
122
(vii) only for applicants who are 18 years old or older, fingerprints, in a form
123
specified by the office; and
124
(viii) other information specified by the office by rule made in accordance with Title
125
63G, Chapter 3, Utah Administrative Rulemaking Act.
126
(2) Except as provided in Subsection (12), an applicant or a representative shall submit the
127
following to the office:
128
(a) personal identifying information;
129
(b) a fee established by the office under Section 63J-1-504;
130
(c) a disclosure form, specified by the office, for consent for:
- 4 - 02-11 08:53 1st Sub. (Green) S.B. 240
131
(i) an initial background check upon association with a certification, contract, or
132
licensee with the department;
133
(ii) ongoing monitoring of fingerprints and registries until no longer associated with a
134
certification, contract, or licensee with the department for 180 days;
135
(iii) a background check when the office determines that reasonable cause exists; and
136
(iv) retention of personal identifying information, including fingerprints, for
137
monitoring and notification as described in Subsections (3)(c) and (4);
138
(d) if an applicant resided outside of the United States and its territories during the five
139
years immediately preceding the day on which the information described in
140
Subsections (2)(a) through (c) is submitted to the office, documentation establishing
141
whether the applicant was convicted of a crime during the time that the applicant
142
resided outside of the United States or its territories; and
143
(e) an application showing an applicant's association with a certification, contract, or a
144
licensee with the department, for the purpose of the office tracking the direct access
145
qualified status of the applicant, which expires 180 days after the date on which the
146
applicant is no longer associated with a certification, contract, or a licensee with the
147
department.
148
(3) The office:
149
(a) shall perform the following duties as part of a background check of an applicant
150
before the office grants or denies direct access qualified status to an applicant:
151
(i) check state and regional criminal background databases for the applicant's
152
criminal history by:
153
(A) submitting personal identifying information to the bureau for a search; or
154
(B) using the applicant's personal identifying information to search state and
155
regional criminal background databases as authorized under Section 53-10-108;
156
(ii) submit the applicant's personal identifying information and fingerprints to the
157
bureau for a criminal history search of applicable national criminal background
158
databases;
159
(iii) search the Division of Child and Family Services' Licensing Information System
160
described in Section 80-2-1002;
161
(iv) search the Sex, Kidnap, and Child Abuse Offender Registry described in Title
162
77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry, or a national
163
sex offender registry for an applicant 18 years old or older;
164
(v) if the applicant is associated with a licensee for a prospective foster or adoptive
- 5 - 1st Sub. (Green) S.B. 240 02-11 08:53
165
parent, search the Division of Child and Family Services' Management
166
Information System described in Section 80-2-1001;
167
(vi) search the Division of Aging and Adult Services' vulnerable adult abuse, neglect,
168
or exploitation database described in Section 26B-6-210;
169
(vii) search the juvenile court records for substantiated findings of severe child abuse
170
or neglect described in Section 80-3-404; and
171
(viii) search the juvenile court arrest, adjudication, and disposition records, as
172
provided under Section 78A-6-209;
173
(b) may conduct all or portions of a background check in connection with determining
174
whether an applicant is direct access qualified, as provided by rule, made by the
175
office in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
176
(i) for an annual renewal; or
177
(ii) when the office determines that reasonable cause exists;
178
(c) may submit an applicant's personal identifying information, including fingerprints, to
179
the bureau for checking, retaining, and monitoring of state and national criminal
180
background databases and for notifying the office of new criminal activity associated
181
with the applicant;
182
(d) shall track the status of an applicant under this section to ensure that the applicant is
183
not required to duplicate the submission of the applicant's fingerprints if the applicant
184
is associated with more than one certification, contract, or licensee with the
185
department;
186
(e) shall notify the bureau when a direct access qualified individual has not been
187
associated with a certification, contract, or licensee with the department for a period
188
of 180 days;
189
(f) shall adopt measures to strictly limit access to personal identifying information solely
190
to the individuals responsible for processing and entering the applications for
191
background checks and to protect the security of the personal identifying information
192
the office reviews under this Subsection (3);
193
(g) as necessary to comply with the federal requirement to check a state's child abuse
194
and neglect registry regarding any applicant working in a congregate care program,
195
shall:
196
(i) search the Division of Child and Family Services' Licensing Information System
197
described in Section 80-2-1002; and
198
(ii) require the child abuse and neglect registry be checked in each state where an
- 6 - 02-11 08:53 1st Sub. (Green) S.B. 240
199
applicant resided at any time during the five years immediately preceding the day
200
on which the application is submitted to the office; and
201
(h) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative
202
Rulemaking Act, to implement the provisions of this Subsection (3) relating to
203
background checks.
204
(4)(a) With the personal identifying information the office submits to the bureau under
205
Subsection (3), the bureau shall check against state and regional criminal background
206
databases for the applicant's criminal history.
207
(b) With the personal identifying information and fingerprints the office submits to the
208
bureau under Subsection (3), the bureau shall check against national criminal
209
background databases for the applicant's criminal history.
210
(c) Upon direction from the office, and with the personal identifying information and
211
fingerprints the office submits to the bureau under Subsection (3)(c), the bureau shall:
212
(i) maintain a separate file of the fingerprints for search by future submissions to the
213
local and regional criminal records databases, including latent prints; and
214
(ii) monitor state and regional criminal background databases and identify criminal
215
activity associated with the applicant.
216
(d) The bureau is authorized to submit the fingerprints to the Federal Bureau of
217
Investigation Next Generation Identification System, to be retained in the Federal
218
Bureau of Investigation Next Generation Identification System for the purpose of:
219
(i) being searched by future submissions to the national criminal records databases,
220
including the Federal Bureau of Investigation Next Generation Identification
221
System and latent prints; and
222
(ii) monitoring national criminal background databases and identifying criminal
223
activity associated with the applicant.
224
(e) The [Bureau] bureau shall notify and release to the office all information of criminal
225
activity associated with the applicant.
226
(f) Upon notice that an individual who has direct access qualified status will no longer
227
be associated with a certification, contract, or licensee with the department, the
228
bureau shall:
229
(i) discard and destroy any retained fingerprints; and
230
(ii) notify the Federal Bureau of Investigation when the license has expired or an
231
individual's direct access to a child or a vulnerable adult has ceased, so that the
232
Federal Bureau of Investigation will discard and destroy the retained fingerprints
- 7 - 1st Sub. (Green) S.B. 240 02-11 08:53
233
from the Federal Bureau of Investigation Next Generation Identification System.
234
(5)(a) Except as provided in Subsection (5)(b), the office shall deny direct access
235
qualified status to an applicant who, within three years from the date on which the
236
office conducts the background check, was convicted of:
237
(i) a felony or misdemeanor involving conduct that constitutes any of the following:
238
(A) an offense identified as domestic violence, lewdness, voyeurism, battery,
239
cruelty to animals, or bestiality;
240
(B) a violation of any pornography law, including sexual exploitation of a minor
241
or aggravated sexual exploitation of a minor;
242
(C) sexual solicitation or prostitution;
243
(D) a violent offense committed in the presence of a child, as described in Section
244
76-3-203.10;
245
(E) an offense included in Title 76, Chapter 4, Part 4, Enticement of a Minor;
246
(F) an offense included in Title 76, Chapter 5, Offenses Against the Individual;
247
(G) an offense included in Title 76, Chapter 5b, Sexual Exploitation Act;
248
(H) an offense included in Title 76, Chapter 7, Offenses Against the Family;
249
(I) an offense included in Title 76, Chapter 9, Part 4, Offenses Against Privacy;
250
(J) an offense included in Title 76, Chapter 10, Part 4, Weapons of Mass
251
Destruction;
252
(K) an offense included in Title 78B, Chapter 7, Protective Orders and Stalking
253
Injunctions;
254
(L) aggravated arson, as described in Section 76-6-103;
255
(M) aggravated burglary, as described in Section 76-6-203;
256
(N) aggravated exploitation of prostitution, as described in Section 76-10-1306;
257
(O) aggravated robbery, as described in Section 76-6-302;
258
(P) endangering persons in a human services program, as described in Section
259
26B-2-113;
260
(Q) failure to report, as described in Section 80-2-609;
261
(R) identity fraud crime, as described in Section 76-6-1102;
262
(S) leaving a child unattended in a motor vehicle, as described in Section
263
76-10-2202;
264
(T) riot, as described in Section 76-9-101;
265
(U) sexual battery, as described in Section 76-9-702.1; or
266
(V) threatening with or using a dangerous weapon in a fight or quarrel, as
- 8 - 02-11 08:53 1st Sub. (Green) S.B. 240
267
described in Section 76-10-506; or
268
(ii) a felony or misdemeanor offense committed outside of the state that, if committed
269
in the state, would constitute a violation of an offense described in Subsection
270
(5)(a)(i).
271
(b)(i) Subsection (5)(a) does not apply to an applicant who is seeking a position as a
272
peer support provider or a mental health professional, if the applicant provides
273
services in a program that serves only adults with a primary mental health
274
diagnosis, with or without a co-occurring substance use disorder.
275
(ii) The office shall conduct a comprehensive review of an applicant described in
276
Subsection (5)(b)(i) in accordance with Subsection (7).
277
(c) The office shall deny direct access qualified status to an applicant if the office finds
278
that a court order prohibits the applicant from having direct access to a child or
279
vulnerable adult.
280
(6) The office shall conduct a comprehensive review of an applicant's background check if
281
the applicant:
282
(a) has a felony or class A misdemeanor conviction that is more than three years from
283
the date on which the office conducts the background check, for an offense described
284
in Subsection (5)(a);
285
(b) has a felony charge or conviction that is no more than 10 years from the date on
286
which the office conducts the background check for an offense not described in
287
Subsection (5)(a);
288
(c) has a felony charge or conviction that is more than 10 years from the date on which
289
the office conducts the background check, for an offense not described in Subsection
290
(5)(a), with criminal or non-criminal findings after the date of the felony charge or
291
conviction;
292
(d) has a class B misdemeanor or class C misdemeanor conviction that is more than
293
three years and no more than 10 years from the date on which the office conducts the
294
background check for an offense described in Subsection (5)(a);
295
(e) has a class B misdemeanor or class C misdemeanor conviction that is more than 10
296
years from the date on which the office conducts the background check, for an
297
offense described in Subsection (5)(a), with criminal or non-criminal findings after
298
the date of conviction;
299
(f) has a misdemeanor charge or conviction that is no more than three years from the
300
date on which the office conducts the background check for an offense not described
- 9 - 1st Sub. (Green) S.B. 240 02-11 08:53
301
in Subsection (5)(a);
302
(g) has a misdemeanor charge or conviction that is more than three years from the date
303
on which the office conducts the background check, for an offense not described in
304
Subsection (5)(a), with criminal or non-criminal findings after the date of charge or
305
conviction;
306
(h) is currently subject to a plea in abeyance or diversion agreement for an offense
307
described in Subsection (5)(a);
308
(i) appears on the Sex, Kidnap, and Child Abuse Offender Registry described in Title
309
77, Chapter 41, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex
310
offender registry;
311
(j) has a record of an adjudication in juvenile court for an act that, if committed by an
312
adult, would be a felony or misdemeanor, if the applicant is:
313
(i) under 28 years old; or
314
(ii) 28 years old or older and has been convicted of, has pleaded no contest to, or is
315
currently subject to a plea in abeyance or diversion agreement for a felony or a
316
misdemeanor offense described in Subsection (5)(a);
317
(k) has a pending charge for an offense described in Subsection (5)(a);
318
(l) has a listing that occurred no more than 15 years from the date on which the office
319
conducts the background check in the Division of Child and Family Services'
320
Licensing Information System described in Section 80-2-1002;
321
(m) has a listing that occurred more than 15 years from the date on which the office
322
conducts the background check in the Division of Child and Family Services'
323
Licensing Information System described in Section 80-2-1002, with criminal or
324
non-criminal findings after the date of the listing;
325
(n) has a listing that occurred no more than 15 years from the date on which the office
326
conducts the background check in the Division of Aging and Adult Services'
327
vulnerable adult abuse, neglect, or exploitation database described in Section
328
26B-6-210;
329
(o) has a listing that occurred more than 15 years from the date on which the office
330
conducts the background check in the Division of Aging and Adult Services'
331
vulnerable adult abuse, neglect, or exploitation database described in Section
332
26B-6-210, with criminal or non-criminal findings after the date of the listing;
333
(p) has a substantiated finding that occurred no more than 15 years from the date on
334
which the office conducts the background check of severe child abuse or neglect
- 10 - 02-11 08:53 1st Sub. (Green) S.B. 240
335
under Section 80-3-404 or 80-3-504[ ]; or
336
(q) has a substantiated finding that occurred more than 15 years from the date on which
337
the office conducts the background check of severe child abuse or neglect under
338
Section 80-3-404 or 80-3-504, with criminal or non-criminal findings after the date of
339
the listing.
340
(7)(a) The comprehensive review shall include an examination of:
341
(i) the date of the offense or incident;
342
(ii) the nature and seriousness of the offense or incident;
343
(iii) the circumstances under which the offense or incident occurred;
344
(iv) the age of the perpetrator when the offense or incident occurred;
345
(v) whether the offense or incident was an isolated or repeated incident;
346
(vi) whether the offense or incident directly relates to abuse of a child or vulnerable
347
adult, including:
348
(A) actual or threatened, nonaccidental physical, mental, or financial harm;
349
(B) sexual abuse;
350
(C) sexual exploitation; or
351
(D) negligent treatment;
352
(vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
353
treatment received, or additional academic or vocational schooling completed;
354
(viii) the applicant's risk of harm to clientele in the program or in the capacity for
355
which the applicant is applying; and
356
(ix) if the background check of an applicant is being conducted for the purpose of
357
giving direct access qualified status to an applicant seeking a position in a
358
congregate care program or to become a prospective foster or adoptive parent, any
359
listing in the Division of Child and Family Services' Management Information
360
System described in Section 80-2-1001.
361
(b) At the conclusion of the comprehensive review, the office shall deny direct access
362
qualified status to an applicant if the office finds the approval would likely create a
363
risk of harm to a child or vulnerable adult.
364
(8) The office shall grant direct access qualified status to an applicant who is not denied
365
under this section.
366
(9)(a) The office may conditionally grant direct access qualified status to an applicant,
367
for a maximum of 60 days after the day on which the office sends written notice,
368
without requiring that the applicant be directly supervised, if the office:
- 11 - 1st Sub. (Green) S.B. 240 02-11 08:53
369
(i) is awaiting the results of the criminal history search of national criminal
370
background databases; and
371
(ii) would otherwise grant direct access qualified status to the applicant under this
372
section.
373
(b) The office may conditionally grant direct access qualified status to an applicant, for a
374
maximum of one year after the day on which the office sends written notice, without
375
requiring that the applicant be directly supervised if the office:
376
(i) is awaiting the results of an out-of-state registry for providers other than foster and
377
adoptive parents; and
378
(ii) would otherwise grant direct access qualified status to the applicant under this
379
section.
380
(c) Upon receiving the results of the criminal history search of a national criminal
381
background database, the office shall grant or deny direct access qualified status to
382
the applicant in accordance with this section.
383
(10)(a) Each time an applicant is associated with a licensee, the department shall review
384
the current status of the applicant's background check to ensure the applicant is still
385
eligible for direct access qualified status in accordance with this section.
386
(b) A licensee may not permit an individual to have direct access to a child or a
387
vulnerable adult without being directly supervised unless:
388
(i) the individual is the parent or guardian of the child, or the guardian of the
389
vulnerable adult;
390
(ii) the individual is approved by the parent or guardian of the child, or the guardian
391
of the vulnerable adult, to have direct access to the child or the vulnerable adult;
392
(iii) the individual is only permitted to have direct access to a vulnerable adult who
393
voluntarily invites the individual to visit; or
394
(iv) the individual only provides incidental care for a foster child on behalf of a foster
395
parent who has used reasonable and prudent judgment to select the individual to
396
provide the incidental care for the foster child.
397
(c) Notwithstanding any other provision of this section, an applicant who is denied direct
398
access qualified status shall not have direct access to a child or vulnerable adult
399
unless the office grants direct access qualified status to the applicant through a
400
subsequent application in accordance with this section.
401
(11) If the office denies direct access qualified status to an applicant, the applicant may
402
request a hearing in the department's Office of Administrative Hearings to challenge the
- 12 - 02-11 08:53 1st Sub. (Green) S.B. 240
403
office's decision.
404
(12)(a) This Subsection (12) applies to an applicant associated with a certification,
405
contract, or licensee serving adults only.
406
(b) A program director or a member, as defined in Section 26B-2-105, of the licensee
407
shall comply with this section.
408
(c) The office shall conduct a comprehensive review for an applicant if:
409
(i) the applicant is seeking a position:
410
(A) as a peer support provider;
411
(B) as a mental health professional; or
412
(C) in a program that serves only adults with a primary mental health diagnosis,
413
with or without a co-occurring substance use disorder; and
414
(ii) within three years from the date on which the office conducts the background
415
check, the applicant has a felony or misdemeanor charge or conviction or a
416
non-criminal finding.
417
(13)(a) This Subsection (13) applies to an applicant seeking a position in a congregate
418
care program, an applicant seeking to provide a prospective foster home, an applicant
419
seeking to provide a prospective adoptive home, and each adult living in the home of
420
the prospective foster or prospective adoptive home.
421
(b) As federally required, the office shall:
422
(i) check the child abuse and neglect registry in each state where each applicant
423
resided in the five years immediately preceding the day on which the applicant
424
applied to be a foster or adoptive parent, to determine whether the prospective
425
foster or adoptive parent is listed in the registry as having a substantiated or
426
supported finding of child abuse or neglect; and
427
(ii) except for applicants seeking a position in a congregate care program, check the
428
child abuse and neglect registry in each state where each adult living in the home
429
of the prospective foster or adoptive home resided in the five years immediately
430
preceding the day on which the applicant applied to be a foster or adoptive parent,
431
to determine whether the adult is listed in the registry as having a substantiated or
432
supported finding of child abuse or neglect.
433
(c) The requirements described in Subsection (13)(b) do not apply to the extent that:
434
(i) federal law or rule permits otherwise; or
435
(ii) the requirements would prohibit the Division of Child and Family Services or a
436
court from placing a child with:
- 13 - 1st Sub. (Green) S.B. 240 02-11 08:53
437
(A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or
438
(B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302,
439
or 80-3-303, pending completion of the background check described in
440
Subsections (5), (6), and (7).
441
(d) Notwithstanding Subsections (5) through (10), the office shall deny direct access
442
qualified status if the applicant has been convicted of:
443
(i) a felony involving conduct that constitutes any of the following:
444
(A) child abuse, as described in Sections 76-5-109, 76-5-109.2, and 76-5-109.3;
445
(B) commission of domestic violence in the presence of a child, as described in
446
Section 76-5-114;
447
(C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
448
(D) intentional aggravated abuse of a vulnerable adult, as described in Section
449
76-5-111;
450
(E) endangerment of a child or vulnerable adult, as described in Section
451
76-5-112.5;
452
(F) aggravated murder, as described in Section 76-5-202;
453
(G) murder, as described in Section 76-5-203;
454
(H) manslaughter, as described in Section 76-5-205;
455
(I) child abuse homicide, as described in Section 76-5-208;
456
(J) homicide by assault, as described in Section 76-5-209;
457
(K) kidnapping, as described in Section 76-5-301;
458
(L) child kidnapping, as described in Section 76-5-301.1;
459
(M) aggravated kidnapping, as described in Section 76-5-302;
460
(N) human trafficking of a child, as described in Section 76-5-308.5;
461
(O) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
462
(P) sexual exploitation of a minor, as described in Title 76, Chapter 5b, Sexual
463
Exploitation Act;
464
(Q) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
465
(R) aggravated arson, as described in Section 76-6-103;
466
(S) aggravated burglary, as described in Section 76-6-203;
467
(T) aggravated robbery, as described in Section 76-6-302;
468
(U) lewdness involving a child, as described in Section 76-9-702.5;
469
(V) incest, as described in Section 76-7-102; or
470
(W) domestic violence, as described in Section 77-36-1; or
- 14 - 02-11 08:53 1st Sub. (Green) S.B. 240
471
(ii) an offense committed outside the state that, if committed in the state, would
472
constitute a violation of an offense described in Subsection (13)(d)(i).
473
(e) Notwithstanding Subsections (5) through (10), the office shall deny direct access
474
qualified status to an applicant if, within the five years from the date on which the
475
office conducts the background check, the applicant was convicted of a felony
476
involving conduct that constitutes a violation of any of the following:
477
(i) aggravated assault, as described in Section 76-5-103;
478
(ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
479
(iii) mayhem, as described in Section 76-5-105;
480
(iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
481
(v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
482
(vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
483
Act;
484
(vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
485
Precursor Act; or
486
(viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
487
(f) In addition to the circumstances described in Subsection (6), the office shall conduct
488
a comprehensive review of an applicant's background check under this section if the
489
applicant:
490
(i) has an offense described in Subsection (5)(a);
491
(ii) has an infraction conviction entered on a date that is no more than three years
492
before the date on which the office conducts the background check;
493
(iii) has a listing in the Division of Child and Family Services' Licensing Information
494
System described in Section 80-2-1002;
495
(iv) has a listing in the Division of Aging and Adult Services' vulnerable adult,
496
neglect, or exploitation database described in Section 26B-2-210;
497
(v) has a substantiated finding of severe child abuse or neglect under Section
498
80-3-404 or 80-3-504; or
499
(vi) has a listing on the registry check described in Subsection (13)(b) as having a
500
substantiated or supported finding of a severe type of child abuse or neglect, as
501
defined in Section 80-1-102.
502
(g) The department shall take reasonable effort to determine, no later than seven
503
business days after the date on which the department receives a completed report
504
from the bureau, whether to grant certification for direct patient access for each
- 15 - 1st Sub. (Green) S.B. 240 02-11 08:53
505
applicant for whom the bureau receives:
506
(i) the personal identification information specified by the department under
507
Subsection (2);
508
(ii) results from other states' child abuse and neglect registries, in accordance with
509
Subsection (3)(g); and
510
(iii) any fees established by the department under Subsection (14).
511
(14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
512
office may make rules, consistent with this part, to:
513
(a) establish procedures for, and information to be examined in, the comprehensive
514
review described in Subsections (6), (7), and (13);[ and]
515
(b) determine whether to consider an offense or incident that occurred while an
516
individual was in the custody of the Division of Child and Family Services or the
517
Division of Juvenile Justice and Youth Services for purposes of granting or denying
518
direct access qualified status to an applicant[.] ; and
519
(c) in accordance with Subsection 26B-2-240(9), establish fees for an application for
520
certification for direct patient access.
521
Section 2. Section 26B-2-703 is amended to read:
522
26B-2-703 . Sanctions -- Penalties and adjudicative procedure -- Rulemaking.
523
(1) If the department has reason to believe that a provider has failed to comply with this
524
chapter or rules made pursuant to this chapter, the department may serve a notice of
525
agency action to commence an adjudicative proceeding in accordance with Title 63G,
526
Chapter 4, Administrative Procedures Act.
527
(2)(a) In accordance with Title 63G, Chapter 4, Administrative Procedures Act, the
528
department may deny, place conditions on, suspend, or revoke a license, certificate,
529
or certification, and invoke penalties, including restricting or prohibiting new
530
admissions to a program or facility, if the department finds that there has been:
531
[(a)] (i) a failure to comply with:
532
[(i)] (A) rules established under this chapter; or
533
[(ii)] (B) any lawful order of the department or a local health department, or
534
applicable rule, statute, regulation, or requirement;
535
[(b)] (ii) aiding, abetting, or permitting the commission of any illegal act;
536
[(c)] (iii) conduct adverse to the standards required to provide services and promote
537
public trust, including aiding, abetting, or permitting the commission of abuse,
538
neglect, exploitation, harm, mistreatment, or fraud; or
- 16 - 02-11 08:53 1st Sub. (Green) S.B. 240
539
[(d)] (iv) a failure to provide applicable health and safety services for clients.
540
(b) The department may not restrict or prohibit new admissions at a congregate care
541
program on the sole basis that the congregate care program is operating under a
542
conditional license.
543
(3)(a) The department may act on an emergency basis if the department determines
544
immediate action is necessary to protect a client.
545
(b) Immediate action taken under Subsection (3)(a) may include restricting new
546
admissions to a program or facility, or increased monitoring of the operations of a
547
program or facility.
548
(4) The department may impose civil monetary penalties against any person, in a sum not to
549
exceed $10,000 per violation, in:
550
(a) an administrative action in accordance with Title 63G, Chapter 4, Administrative
551
Procedures Act;
552
(b) a similar administrative proceeding adopted by a county or local government; or
553
(c) a judicial civil proceeding.
554
(5) Assessment of a civil penalty or administrative penalty does not preclude the
555
department or a local health department from:
556
(a) seeking criminal penalties;
557
(b) denying, revoking, imposing conditions on, or refusing to renew a license,
558
certificate, or certification; or
559
(c) seeking injunctive or equitable remedies.
560
(6) If the department revokes a license, certificate, or certification, the office may not grant
561
a new license, certificate, or certification unless:
562
(a) at least five years have passed since the day on which the provider was served with
563
final notice that the provider's license, certificate, or certification was revoked; and
564
(b) the office determines that the interests of the public will not be jeopardized by
565
granting the provider a new license, certificate, or certification.
566
(7) If the department does not renew a license, certificate, or certification because of
567
noncompliance with the provisions of this part or rules adopted under this part, the
568
department may not issue a new license, certificate, or certification unless:
569
(a) at least one year has passed since the day on which the renewal was denied;
570
(b) the provider complies with all renewal requirements; and
571
(c) the office determines that the interests of the public will not be jeopardized by
572
issuing a new license, certificate, or certification.
- 17 - 1st Sub. (Green) S.B. 240 02-11 08:53
573
(8) The office may suspend a license, certificate, or certification for up to three years.
574
(9) When a license, certificate, or certification has been suspended, the office may restore,
575
or restore subject to conditions, the suspended license, certificate, or certification upon a
576
determination that the:
577
(a) conditions upon which the suspension were based have been completely or partially
578
corrected; and
579
(b) interests of the public will not be jeopardized by restoration of the license, certificate,
580
or certification.
581
(10) If a provider fails to comply with the provisions of this chapter, the department may
582
impose a penalty on the provider that is less than or equal to the cost incurred by the
583
department, which may include:
584
(a) the cost to continue providing services, including ensuring client safety and
585
relocating clients through the transition or closure of a program or facility;
586
(b) the cost to place an administrator or department representative as a monitor in a
587
program or facility; or
588
(c) the cost to assess to the provider those costs incurred by the department.
589
(11) If a congregate care program or facility knowingly fails to comply with the provisions
590
of Section 26B-2-124, the office may impose a penalty on the congregate care program
591
or facility that is less than or equal to the cost of care incurred by the state for a
592
private-placement child described in Subsection 26B-2-124(3).
593
(12) If the department finds that an abortion has been performed in violation of Section
594
76-7-314 or 76-7a-201, the department shall deny or revoke the license.
595
(13)(a) A provider, program or facility, or person may commence adjudicative
596
proceedings in accordance with Title 63G, Chapter 4, Administrative Procedures Act,
597
regarding all agency actions that determine the legal rights, duties, privileges,
598
immunities, or other legal interests of the provider, program or facility, or persons
599
associated with the provider, including all office actions to grant, deny, place
600
conditions on, revoke, suspend, withdraw, or amend an authority, right, license,
601
certificate, or certification under this part.
602
(b) The department may not deny, place a condition on, revoke, refuse to reinstate,
603
suspend, withdraw, or amend an authority, right, license, certificate, or certification
604
under this part on the basis that an affected congregate care program has appealed an
605
agency action under Subsection (13)(a) or that an appeal or adjudicative proceeding
606
is pending.
- 18 - 02-11 08:53 1st Sub. (Green) S.B. 240
607
(c) If, at any time, the department determines that it will not remove a condition on or
608
otherwise unconditionally reinstate or renew a congregate care program's license, the
609
department shall notify the congregate care program within seven days of the
610
department's determination.
611
(14) The department shall:
612
(a)(i) conduct an initial inspection not more than 14 days after the date on which any
613
restriction or prohibition on new admissions has been issued; and
614
(ii) conduct a subsequent inspection not more than 30 days after the date on which
615
the initial inspection under Subsection (14)(a)(i)(A) occurred;
616
(b) remove any restriction on new admissions at a congregate care program or facility if
617
the department:
618
(i) conducts any two consecutive inspections showing full compliance with the
619
violated rules upon which the restriction on new admissions was based; and
620
(ii) finds no new violations upon which the department may restrict new admissions
621
under Subsection (2)(a); and
622
(c) remove any conditions on a congregate care program license if:
623
(i) the congregate care program has rectified all issues for which the conditions were
624
initially imposed;
625
(ii) the department conducts three consecutive inspections showing full compliance
626
with the violated rules upon which the conditions were based;
627
(iii) no less than 90 days have elapsed after the date on which the first of three
628
consecutive inspections showing full compliance occurred; and
629
(iv) the department finds no new violations upon which the department may place
630
conditions on the license under Subsection (2)(a).
631
[(14)] (15) Subject to the requirements of federal and state law, the office shall make rules
632
in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to
633
establish sanctions, penalties, and adjudicative proceedings as described in this chapter.
634
Section 3. Effective Date.
635
This bill takes effect on May 7, 2025.
- 19 -