Text of UT SB 127 (2021)

S.B. 127 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: C. Williams 6 6 01-25-21 11:38 AM 6 S.B. 127 1 HUMAN SERVICES PROGRAM AMENDMENTS 2 2021 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Michael K. McKell 5 House Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill modifies provisions related to human services programs. 10 Highlighted Provisions: 11 This bill: 12 < defines terms; 13 < provides incident reporting requirements for persons licensed by the Office of 14 Licensing; 15 < requires the Office of Licensing to review certain policies and procedures 16 established by a human services program; 17 < requires a human services program to publicly post the Office of Licensing's contact 18 information; 19 < requires the Office of Licensing to inspect each congregate care program multiple 20 times a year; 21 < describes when a congregate care program may use a restraint or seclusion; 22 < requires a congregate care program to maintain suicide prevention policies; 23 < prohibits a human services program from engaging in sex and gender based 24 discrimination; and 25 < makes technical changes. 26 Money Appropriated in this Bill: 27 None *SB0127* S.B. 127 01-25-21 11:38 AM - 2 - 28 Other Special Clauses: 29 None 30 Utah Code Sections Affected: 31 AMENDS: 32 62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last 33 amended by Coordination Clause, Laws of Utah 2019, Chapter 193 34 62A-2-106, as last amended by Laws of Utah 2017, Chapter 148 35 62A-2-118, as last amended by Laws of Utah 2005, Chapter 188 36 62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last 37 amended by Coordination Clause, Laws of Utah 2020, Chapter 225 38 ENACTS: 39 62A-2-123, Utah Code Annotated 1953 40 62A-2-124, Utah Code Annotated 1953 41 42 Be it enacted by the Legislature of the state of Utah: 43 Section 1. Section 62A-2-101 is amended to read: 44 62A-2-101. Definitions. 45 As used in this chapter: 46 (1) "Adult day care" means nonresidential care and supervision: 47 (a) for three or more adults for at least four but less than 24 hours a day; and 48 (b) that meets the needs of functionally impaired adults through a comprehensive 49 program that provides a variety of health, social, recreational, and related support services in a 50 protective setting. 51 (2) "Applicant" means a person who applies for an initial license or a license renewal 52 under this chapter. 53 (3) (a) "Associated with the licensee" means that an individual is: 54 (i) affiliated with a licensee as an owner, director, member of the governing body, 55 employee, agent, provider of care, department contractor, or volunteer; or 56 (ii) applying to become affiliated with a licensee in a capacity described in Subsection 57 (3)(a)(i). 58 (b) "Associated with the licensee" does not include: 01-25-21 11:38 AM S.B. 127 - 3 - 59 (i) service on the following bodies, unless that service includes direct access to a child 60 or a vulnerable adult: 61 (A) a local mental health authority described in Section 17-43-301; 62 (B) a local substance abuse authority described in Section 17-43-201; or 63 (C) a board of an organization operating under a contract to provide mental health or 64 substance abuse programs, or services for the local mental health authority or substance abuse 65 authority; or 66 (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised 67 at all times. 68 (4) (a) "Boarding school" means a private school that: 69 (i) uses a regionally accredited education program; 70 (ii) provides a residence to the school's students: 71 (A) for the purpose of enabling the school's students to attend classes at the school; and 72 (B) as an ancillary service to educating the students at the school; 73 (iii) has the primary purpose of providing the school's students with an education, as 74 defined in Subsection (4)(b)(i); and 75 (iv) (A) does not provide the treatment or services described in Subsection [(33)(a)] 76 (36)(a); or 77 (B) provides the treatment or services described in Subsection [(33)(a)] (36)(a) on a 78 limited basis, as described in Subsection (4)(b)(ii). 79 (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for 80 one or more of grades kindergarten through 12th grade. 81 (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or 82 services described in Subsection [(33)(a)] (36)(a) on a limited basis if: 83 (A) the treatment or services described in Subsection [(33)(a)] (36)(a) are provided 84 only as an incidental service to a student; and 85 (B) the school does not: 86 (I) specifically solicit a student for the purpose of providing the treatment or services 87 described in Subsection [(33)(a)] (36)(a); or 88 (II) have a primary purpose of providing the treatment or services described in 89 Subsection [(33)(a)] (36)(a). S.B. 127 01-25-21 11:38 AM - 4 - 90 (c) "Boarding school" does not include a therapeutic school. 91 (5) "Child" means [a person] an individual under 18 years [of age] old. 92 (6) "Child placing" means receiving, accepting, or providing custody or care for any 93 child, temporarily or permanently, for the purpose of: 94 (a) finding a person to adopt the child; 95 (b) placing the child in a home for adoption; or 96 (c) foster home placement. 97 (7) "Child-placing agency" means a person that engages in child placing. 98 (8) "Client" means an individual who receives or has received services from a licensee. 99 (9) (a) "Congregate care program" means any of the following that provide services to 100 a child: 101 (i) an outdoor youth program; 102 (ii) a residential support program; 103 (iii) a residential treatment program; or 104 (iv) a therapeutic school. 105 (b) "Congregate care program" does not include a facility exclusively operated by the 106 Division of Juvenile Justice Services. 107 [(9)] (10) "Day treatment" means specialized treatment that is provided to: 108 (a) a client less than 24 hours a day; and 109 (b) four or more persons who: 110 (i) are unrelated to the owner or provider; and 111 (ii) have emotional, psychological, developmental, physical, or behavioral 112 dysfunctions, impairments, or chemical dependencies. 113 [(10)] (11) "Department" means the Department of Human Services. 114 [(11)] (12) "Department contractor" means an individual who: 115 (a) provides services under a contract with the department; and 116 (b) due to the contract with the department, has or will likely have direct access to a 117 child or vulnerable adult. 118 [(12)] (13) "Direct access" means that an individual has, or likely will have: 119 (a) contact with or access to a child or vulnerable adult that provides the individual 120 with an opportunity for personal communication or touch; or 01-25-21 11:38 AM S.B. 127 - 5 - 121 (b) an opportunity to view medical, financial, or other confidential personal identifying 122 information of the child, the child's parents or legal guardians, or the vulnerable adult. 123 [(13)] (14) "Directly supervised" means that an individual is being supervised under 124 the uninterrupted visual and auditory surveillance of another individual who has a current 125 background screening approval issued by the office. 126 [(14)] (15) "Director" means the director of the Office of Licensing. 127 [(15)] (16) "Domestic violence" means the same as that term is defined in Section 128 77-36-1. 129 [(16)] (17) "Domestic violence treatment program" means a nonresidential program 130 designed to provide psychological treatment and educational services to perpetrators and 131 victims of domestic violence. 132 [(17)] (18) "Elder adult" means a person 65 years [of age] old or older. 133 [(18)] (19) "Executive director" means the executive director of the department. 134 [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office 135 of Licensing for the full-time substitute care of a child. 136 [(20)] (21) "Health benefit plan" means the same as that term is defined in Section 137 31A-1-301. 138 [(21)] (22) "Health care provider" means the same as that term is defined in Section 139 78B-3-403. 140 [(22)] (23) "Health insurer" means the same as that term is defined in Section 141 31A-22-615.5. 142 [(23)] (24) (a) "Human services program" means [a]: 143 (i) a foster home; 144 (ii) a therapeutic school; 145 (iii) a youth program; 146 (iv) an outdoor youth program; 147 (v) a residential treatment program; 148 (vi) a residential support program; 149 [(iv)] (vii) a resource family home; 150 [(v)] (viii) a recovery residence; or 151 [(vi)] (ix) a facility or program that provides: S.B. 127 01-25-21 11:38 AM - 6 - 152 [(A) secure treatment;] 153 [(B) inpatient treatment;] 154 [(C) residential treatment;] 155 [(D) residential support;] 156 [(E)] (A) adult day care; 157 [(F)] (B) day treatment; 158 [(G)] (C) outpatient treatment; 159 [(H)] (D) domestic violence treatment; 160 [(I)] (E) child-placing services; 161 [(J)] (F) social detoxification; or 162 [(K)] (G) any other human services that are required by contract with the department to 163 be licensed with the department. 164 (b) "Human services program" does not include: 165 (i) a boarding school; or 166 (ii) a residential, vocational and life skills program, as defined in Section 13-53-102. 167 [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec. 168 1903. 169 [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec. 170 1151. 171 [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec. 172 1903. 173 (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or 174 care for an individual who: 175 (a) cannot live independently or in a less restrictive environment; and 176 (b) requires, without the individual's consent or control, the use of locked doors to care 177 for the individual. 178 [(27)] (29) "Licensee" means an individual or a human services program licensed by 179 the office. 180 [(28)] (30) "Local government" means a city, town, metro township, or county. 181 [(29)] (31) "Minor" has the same meaning as "child." 182 [(30)] (32) "Office" means the Office of Licensing within the Department of Human 01-25-21 11:38 AM S.B. 127 - 7 - 183 Services. 184 (33) "Outdoor youth program" means a program that provides: 185 (a) services to a child that has: 186 (i) a chemical dependency; or 187 (ii) a dysfunction or impairment that is emotional, psychological, developmental, or 188 behavioral; 189 (b) a 24-hour outdoor group living environment; and 190 (c) regular therapy, including group, individual, or supportive family therapy. 191 [(31)] (34) "Outpatient treatment" means individual, family, or group therapy or 192 counseling designed to improve and enhance social or psychological functioning for those 193 whose physical and emotional status allows them to continue functioning in their usual living 194 environment. 195 [(32)] (35) "Practice group" or "group practice" means two or more health care 196 providers legally organized as a partnership, professional corporation, or similar association, 197 for which: 198 (a) substantially all of the services of the health care providers who are members of the 199 group are provided through the group and are billed in the name of the group and amounts 200 received are treated as receipts of the group; and 201 (b) the overhead expenses of and the income from the practice are distributed in 202 accordance with methods previously determined by members of the group. 203 [(33)] (36) (a) "Recovery residence" means a home, residence, or facility that meets at 204 least two of the following requirements: 205 (i) provides a supervised living environment for individuals recovering from a 206 substance use disorder; 207 (ii) provides a living environment in which more than half of the individuals in the 208 residence are recovering from a substance use disorder; 209 (iii) provides or arranges for residents to receive services related to their recovery from 210 a substance use disorder, either on or off site; 211 (iv) is held out as a living environment in which individuals recovering from substance 212 abuse disorders live together to encourage continued sobriety; or 213 (v) (A) receives public funding; or S.B. 127 01-25-21 11:38 AM - 8 - 214 (B) is run as a business venture, either for-profit or not-for-profit. 215 (b) "Recovery residence" does not mean: 216 (i) a residential treatment program; 217 (ii) residential support; or 218 (iii) a home, residence, or facility, in which: 219 (A) residents, by their majority vote, establish, implement, and enforce policies 220 governing the living environment, including the manner in which applications for residence are 221 approved and the manner in which residents are expelled; 222 (B) residents equitably share rent and housing-related expenses; and 223 (C) a landlord, owner, or operator does not receive compensation, other than fair 224 market rental income, for establishing, implementing, or enforcing policies governing the 225 living environment. 226 [(34)] (37) "Regular business hours" means: 227 (a) the hours during which services of any kind are provided to a client; or 228 (b) the hours during which a client is present at the facility of a licensee. 229 [(35)] (38) (a) "Residential support program" means [arranging for or providing] a 230 program that arranges for or provides the necessities of life as a protective service to 231 individuals or families who have a disability or who are experiencing a dislocation or 232 emergency that prevents them from providing these services for themselves or their families. 233 (b) "Residential support program" includes [providing] a program that provides a 234 supervised living environment for [persons] individuals with dysfunctions or impairments that 235 are: 236 (i) emotional; 237 (ii) psychological; 238 (iii) developmental; or 239 (iv) behavioral. 240 (c) Treatment is not a necessary component of a residential support program. 241 (d) "Residential support program" does not include: 242 (i) a recovery residence; or 243 (ii) a program that provides residential services that are performed: 244 (A) exclusively under contract with the department and provided to individuals through 01-25-21 11:38 AM S.B. 127 - 9 - 245 the Division of Services for People with Disabilities; or 246 (B) in a facility that serves fewer than four individuals. 247 [(36)] (39) (a) "Residential treatment" means a 24-hour group living environment for 248 four or more individuals unrelated to the owner or provider that offers room or board and 249 specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or 250 habilitation services for persons with emotional, psychological, developmental, or behavioral 251 dysfunctions, impairments, or chemical dependencies. 252 (b) "Residential treatment" does not include a: 253 (i) boarding school; 254 (ii) foster home; or 255 (iii) recovery residence. 256 [(37)] (40) "Residential treatment program" means a [human services program] a 257 program or facility that provides: 258 (a) residential treatment; or 259 (b) intermediate secure treatment. 260 [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for 261 persons whose current functioning is such that they cannot live independently or in a less 262 restrictive environment.] 263 [(b) "Secure treatment" differs from residential treatment to the extent that it requires 264 intensive supervision, locked doors, and other security measures that are imposed on residents 265 with neither their consent nor control.] 266 (41) "Seclusion" means the involuntary confinement of an individual in a room or an 267 area: 268 (a) away from the individual's peers; and 269 (b) in a manner that physically prevents the individual from leaving the room or area. 270 [(39)] (42) "Social detoxification" means short-term residential services for persons 271 who are experiencing or have recently experienced drug or alcohol intoxication, that are 272 provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care 273 Facility Licensing and Inspection Act, and that include: 274 (a) room and board for persons who are unrelated to the owner or manager of the 275 facility; S.B. 127 01-25-21 11:38 AM - 10 - 276 (b) specialized rehabilitation to acquire sobriety; and 277 (c) aftercare services. 278 [(40)] (43) "Substance abuse disorder" or "substance use disorder" mean the same as 279 "substance use disorder" is defined in Section 62A-15-1202. 280 [(41)] (44) "Substance abuse treatment program" or "substance use disorder treatment 281 program" means a program: 282 (a) designed to provide: 283 (i) specialized drug or alcohol treatment; 284 (ii) rehabilitation; or 285 (iii) habilitation services; and 286 (b) that provides the treatment or services described in Subsection [(41)] (44)(a) to 287 persons with: 288 (i) a diagnosed substance use disorder; or 289 (ii) chemical dependency disorder. 290 [(42)] (45) "Therapeutic school" means a residential group living facility: 291 (a) for four or more individuals that are not related to: 292 (i) the owner of the facility; or 293 (ii) the primary service provider of the facility; 294 (b) that serves students who have a history of failing to function: 295 (i) at home; 296 (ii) in a public school; or 297 (iii) in a nonresidential private school; and 298 (c) that offers: 299 (i) room and board; and 300 (ii) an academic education integrated with: 301 (A) specialized structure and supervision; or 302 (B) services or treatment related to: 303 (I) a disability; 304 (II) emotional development; 305 (III) behavioral development; 306 (IV) familial development; or 01-25-21 11:38 AM S.B. 127 - 11 - 307 (V) social development. 308 [(43)] (46) "Unrelated persons" means persons other than parents, legal guardians, 309 grandparents, brothers, sisters, uncles, or aunts. 310 [(44)] (47) "Vulnerable adult" means an elder adult or an adult who has a temporary or 311 permanent mental or physical impairment that substantially affects the person's ability to: 312 (a) provide personal protection; 313 (b) provide necessities such as food, shelter, clothing, or mental or other health care; 314 (c) obtain services necessary for health, safety, or welfare; 315 (d) carry out the activities of daily living; 316 (e) manage the adult's own resources; or 317 (f) comprehend the nature and consequences of remaining in a situation of abuse, 318 neglect, or exploitation. 319 [(45)] (48) (a) "Youth program" means a [nonresidential] program designed to provide 320 behavioral, substance abuse, or mental health services to minors that: 321 (i) serves adjudicated or nonadjudicated youth; 322 (ii) charges a fee for its services; 323 (iii) may [or may not] provide host homes or other arrangements for overnight 324 accommodation of the youth; 325 (iv) may [or may not] provide all or part of its services in the outdoors; 326 (v) may [or may not] limit or censor access to parents or guardians; and 327 (vi) prohibits or restricts a minor's ability to leave the program at any time of the 328 minor's own free will. 329 (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl 330 Scouts, 4-H, and other such organizations. 331 Section 2. Section 62A-2-106 is amended to read: 332 62A-2-106. Office responsibilities. 333 (1) Subject to the requirements of federal and state law, the office shall: 334 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative 335 Rulemaking Act, to establish: 336 (i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for 337 licensees, that shall be limited to: S.B. 127 01-25-21 11:38 AM - 12 - 338 (A) fire safety; 339 (B) food safety; 340 (C) sanitation; 341 (D) infectious disease control; 342 (E) safety of the: 343 (I) physical facility and grounds; and 344 (II) area and community surrounding the physical facility; 345 (F) transportation safety; 346 (G) emergency preparedness and response; 347 (H) the administration of medical standards and procedures, consistent with the related 348 provisions of this title; 349 (I) staff and client safety and protection; 350 (J) the administration and maintenance of client and service records; 351 (K) staff qualifications and training, including standards for permitting experience to 352 be substituted for education, unless prohibited by law; 353 (L) staff to client ratios; 354 (M) access to firearms; and 355 (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud; 356 (ii) basic health and safety standards for therapeutic schools, that shall be limited to: 357 (A) fire safety, except that the standards are limited to those required by law or rule 358 under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act; 359 (B) food safety; 360 (C) sanitation; 361 (D) infectious disease control, except that the standards are limited to: 362 (I) those required by law or rule under Title 26, Utah Health Code, or Title 26A, Local 363 Health Authorities; and 364 (II) requiring a separate room for clients who are sick; 365 (E) safety of the physical facility and grounds, except that the standards are limited to 366 those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks 367 Act; 368 (F) transportation safety; 01-25-21 11:38 AM S.B. 127 - 13 - 369 (G) emergency preparedness and response; 370 (H) access to appropriate medical care, including: 371 (I) subject to the requirements of law, designation of a person who is authorized to 372 dispense medication; and 373 (II) storing, tracking, and securing medication; 374 (I) staff and client safety and protection that permits the school to provide for the direct 375 supervision of clients at all times; 376 (J) the administration and maintenance of client and service records; 377 (K) staff qualifications and training, including standards for permitting experience to 378 be substituted for education, unless prohibited by law; 379 (L) staff to client ratios; 380 (M) access to firearms; and 381 (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud; 382 (iii) procedures and standards for permitting a licensee to: 383 (A) provide in the same facility and under the same conditions as children, residential 384 treatment services to a person 18 years old or older who: 385 (I) begins to reside at the licensee's residential treatment facility before the person's 386 18th birthday; 387 (II) has resided at the licensee's residential treatment facility continuously since the 388 time described in Subsection (1)(a)(iii)(A)(I); 389 (III) has not completed the course of treatment for which the person began residing at 390 the licensee's residential treatment facility; and 391 (IV) voluntarily consents to complete the course of treatment described in Subsection 392 (1)(a)(iii)(A)(III); or 393 (B) (I) provide residential treatment services to a child who is: 394 (Aa) 12 years old or older; and 395 (Bb) under the custody of the Department of Human Services, or one of its divisions; 396 and 397 (II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I), 398 residential treatment services to a person who is: 399 (Aa) at least 18 years old, but younger than 21 years old; and S.B. 127 01-25-21 11:38 AM - 14 - 400 (Bb) under the custody of the Department of Human Services, or one of its divisions; 401 (iv) minimum administration and financial requirements for licensees; 402 (v) guidelines for variances from rules established under this Subsection (1); 403 (vi) ethical standards, as described in Subsection 78B-6-106(3), and minimum 404 responsibilities of a child-placing agency that provides adoption services and that is licensed 405 under this chapter; 406 (vii) what constitutes an "outpatient treatment program" for purposes of this chapter; 407 (viii) a procedure requiring a licensee to provide an insurer the licensee's records 408 related to any services or supplies billed to the insurer, and a procedure allowing the licensee 409 and the insurer to contact the Insurance Department to resolve any disputes; 410 (ix) a protocol for the office to investigate and process complaints about licensees; 411 [and] 412 (x) a procedure for [licensees to report incidents;] a licensee to: 413 (A) report a serious incident within one business day after the day on which the 414 incident occurs; and 415 (B) provide a monthly report of all incidents during which the licensee used a restraint; 416 (xi) guidelines for the policies and procedures described in Sections 62A-2-123 and 417 62A-2-124; 418 (xii) a procedure for the office to review and approve the policies and procedures 419 described in Sections 62A-2-123 and 62A-2-124; and 420 (xiii) a requirement that each human services program publicly post information that 421 informs an individual how to submit a complaint about a human services program to the office. 422 (b) enforce rules relating to the office; 423 (c) issue licenses in accordance with this chapter; 424 (d) if the United States Department of State executes an agreement with the office that 425 designates the office to act as an accrediting entity in accordance with the Intercountry 426 Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to 427 provide intercountry adoption services pursuant to: 428 (i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and 429 (ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L. 430 No. 106-279; 01-25-21 11:38 AM S.B. 127 - 15 - 431 (e) make rules to implement the provisions of Subsection (1)(d); 432 (f) conduct surveys and inspections of licensees and facilities in accordance with 433 Section 62A-2-118; 434 (g) collect licensure fees; 435 (h) notify licensees of the name of a person within the department to contact when 436 filing a complaint; 437 (i) investigate complaints regarding any licensee or human services program; 438 (j) have access to all records, correspondence, and financial data required to be 439 maintained by a licensee; 440 (k) have authority to interview any client, family member of a client, employee, or 441 officer of a licensee; 442 (l) have authority to deny, condition, revoke, suspend, or extend any license issued by 443 the department under this chapter by following the procedures and requirements of Title 63G, 444 Chapter 4, Administrative Procedures Act; 445 (m) electronically post notices of agency action issued to a human services program, 446 with the exception of a foster home, on the office's website, in accordance with Title 63G, 447 Chapter 2, Government Records Access and Management Act; and 448 (n) upon receiving a local government's request under Section 62A-2-108.4, notify the 449 local government of new human services program license applications, except for foster 450 homes, for human services programs located within the local government's jurisdiction. 451 (2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a 452 licensee to establish and comply with an emergency response plan that requires clients and staff 453 to: 454 (a) immediately report to law enforcement any significant criminal activity, as defined 455 by rule, committed: 456 (i) on the premises where the licensee operates its human services program; 457 (ii) by or against its clients; or 458 (iii) by or against a staff member while the staff member is on duty; 459 (b) immediately report to emergency medical services any medical emergency, as 460 defined by rule: 461 (i) on the premises where the licensee operates its human services program; S.B. 127 01-25-21 11:38 AM - 16 - 462 (ii) involving its clients; or 463 (iii) involving a staff member while the staff member is on duty; and 464 (c) immediately report other emergencies that occur on the premises where the licensee 465 operates its human services program to the appropriate emergency services agency. 466 Section 3. Section 62A-2-118 is amended to read: 467 62A-2-118. Administrative inspections. 468 (1) (a) [The] Subject to Subsection (1)(b), the office may, for the purpose of 469 ascertaining compliance with this chapter, enter and inspect on a routine basis the facility of a 470 licensee. 471 (b) The office shall enter and inspect a congregate care program at least once each 472 calendar quarter. 473 (2) Before conducting an inspection under Subsection (1), the office shall, after 474 identifying the person in charge: 475 (a) give proper identification; 476 (b) request to see the applicable license; 477 (c) describe the nature and purpose of the inspection; and 478 (d) if necessary, explain the authority of the office to conduct the inspection and the 479 penalty for refusing to permit the inspection as provided in Section 62A-2-116. 480 (3) In conducting an inspection under Subsection (1), the office may, after meeting the 481 requirements of Subsection (2): 482 (a) inspect the physical facilities; 483 (b) inspect and copy records and documents; 484 (c) interview officers, employees, clients, family members of clients, and others; and 485 (d) observe the licensee in operation. 486 (4) An inspection conducted under Subsection (1) shall be during regular business 487 hours and may be announced or unannounced. 488 (5) The licensee shall make copies of inspection reports available to the public upon 489 request. 490 (6) The provisions of this section apply to on-site inspections and do not restrict the 491 office from contacting family members, neighbors, or other individuals, or from seeking 492 information from other sources to determine compliance with this chapter. 01-25-21 11:38 AM S.B. 127 - 17 - 493 Section 4. Section 62A-2-120 is amended to read: 494 62A-2-120. Background check -- Direct access to children or vulnerable adults. 495 (1) As used in this section: 496 (a) (i) "Applicant" means: 497 (A) the same as that term is defined in Section 62A-2-101; 498 (B) an individual who is associated with a licensee and has or will likely have direct 499 access to a child or a vulnerable adult; 500 (C) an individual who provides respite care to a foster parent or an adoptive parent on 501 more than one occasion; 502 (D) a department contractor; 503 (E) a guardian submitting an application on behalf of an individual, other than the child 504 or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or 505 older and resides in a home, that is licensed or certified by the office, with the child or 506 vulnerable adult who is receiving services; or 507 (F) a guardian submitting an application on behalf of an individual, other than the child 508 or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or 509 older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D). 510 (ii) "Applicant" does not mean an individual, including an adult, who is in the custody 511 of the Division of Child and Family Services or the Division of Juvenile Justice Services. 512 (b) "Application" means a background screening application to the office. 513 (c) "Bureau" means the Bureau of Criminal Identification within the Department of 514 Public Safety, created in Section 53-10-201. 515 (d) "Incidental care" means occasional care, not in excess of five hours per week and 516 never overnight, for a foster child. 517 (e) "Personal identifying information" means: 518 (i) current name, former names, nicknames, and aliases; 519 (ii) date of birth; 520 (iii) physical address and email address; 521 (iv) telephone number; 522 (v) driver license or other government-issued identification; 523 (vi) social security number; S.B. 127 01-25-21 11:38 AM - 18 - 524 (vii) only for applicants who are 18 years [of age] old or older, fingerprints, in a form 525 specified by the office; and 526 (viii) other information specified by the office by rule made in accordance with Title 527 63G, Chapter 3, Utah Administrative Rulemaking Act. 528 (2) (a) Except as provided in Subsection (13), an applicant or a representative shall 529 submit the following to the office: 530 (i) personal identifying information; 531 (ii) a fee established by the office under Section 63J-1-504; and 532 (iii) a disclosure form, specified by the office, for consent for: 533 (A) an initial background check upon submission of the information described under 534 this Subsection (2)(a); 535 (B) ongoing monitoring of fingerprints and registries until no longer associated with a 536 licensee for 90 days; 537 (C) a background check when the office determines that reasonable cause exists; and 538 (D) retention of personal identifying information, including fingerprints, for 539 monitoring and notification as described in Subsections (3)(d) and (4). 540 (b) In addition to the requirements described in Subsection (2)(a), if an applicant 541 resided outside of the United States and its territories during the five years immediately 542 preceding the day on which the information described in Subsection (2)(a) is submitted to the 543 office, the office may require the applicant to submit documentation establishing whether the 544 applicant was convicted of a crime during the time that the applicant resided outside of the 545 United States or its territories. 546 (3) The office: 547 (a) shall perform the following duties as part of a background check of an applicant: 548 (i) check state and regional criminal background databases for the applicant's criminal 549 history by: 550 (A) submitting personal identifying information to the bureau for a search; or 551 (B) using the applicant's personal identifying information to search state and regional 552 criminal background databases as authorized under Section 53-10-108; 553 (ii) submit the applicant's personal identifying information and fingerprints to the 554 bureau for a criminal history search of applicable national criminal background databases; 01-25-21 11:38 AM S.B. 127 - 19 - 555 (iii) search the Department of Human Services, Division of Child and Family Services' 556 Licensing Information System described in Section 62A-4a-1006; 557 (iv) search the Department of Human Services, Division of Aging and Adult Services' 558 vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1; 559 (v) search the juvenile court records for substantiated findings of severe child abuse or 560 neglect described in Section 78A-6-323; and 561 (vi) search the juvenile court arrest, adjudication, and disposition records, as provided 562 under Section 78A-6-209; 563 (b) shall conduct a background check of an applicant for an initial background check 564 upon submission of the information described under Subsection (2)(a); 565 (c) may conduct all or portions of a background check of an applicant, as provided by 566 rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative 567 Rulemaking Act: 568 (i) for an annual renewal; or 569 (ii) when the office determines that reasonable cause exists; 570 (d) may submit an applicant's personal identifying information, including fingerprints, 571 to the bureau for checking, retaining, and monitoring of state and national criminal background 572 databases and for notifying the office of new criminal activity associated with the applicant; 573 (e) shall track the status of an approved applicant under this section to ensure that an 574 approved applicant is not required to duplicate the submission of the applicant's fingerprints if 575 the applicant applies for: 576 (i) more than one license; 577 (ii) direct access to a child or a vulnerable adult in more than one human services 578 program; or 579 (iii) direct access to a child or a vulnerable adult under a contract with the department; 580 (f) shall track the status of each license and each individual with direct access to a child 581 or a vulnerable adult and notify the bureau within 90 days after the day on which the license 582 expires or the individual's direct access to a child or a vulnerable adult ceases; 583 (g) shall adopt measures to strictly limit access to personal identifying information 584 solely to the individuals responsible for processing and entering the applications for 585 background checks and to protect the security of the personal identifying information the office S.B. 127 01-25-21 11:38 AM - 20 - 586 reviews under this Subsection (3); 587 (h) as necessary to comply with the federal requirement to check a state's child abuse 588 and neglect registry regarding any individual working in a congregate care [setting that serves 589 children] program, shall: 590 (i) search the Department of Human Services, Division of Child and Family Services' 591 Licensing Information System described in Section 62A-4a-1006; and 592 (ii) require the child abuse and neglect registry be checked in each state where an 593 applicant resided at any time during the five years immediately preceding the day on which the 594 applicant submits the information described in Subsection (2)(a) to the office; and 595 (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative 596 Rulemaking Act, to implement the provisions of this Subsection (3) relating to background 597 checks. 598 (4) (a) With the personal identifying information the office submits to the bureau under 599 Subsection (3), the bureau shall check against state and regional criminal background databases 600 for the applicant's criminal history. 601 (b) With the personal identifying information and fingerprints the office submits to the 602 bureau under Subsection (3), the bureau shall check against national criminal background 603 databases for the applicant's criminal history. 604 (c) Upon direction from the office, and with the personal identifying information and 605 fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall: 606 (i) maintain a separate file of the fingerprints for search by future submissions to the 607 local and regional criminal records databases, including latent prints; and 608 (ii) monitor state and regional criminal background databases and identify criminal 609 activity associated with the applicant. 610 (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of 611 Investigation Next Generation Identification System, to be retained in the Federal Bureau of 612 Investigation Next Generation Identification System for the purpose of: 613 (i) being searched by future submissions to the national criminal records databases, 614 including the Federal Bureau of Investigation Next Generation Identification System and latent 615 prints; and 616 (ii) monitoring national criminal background databases and identifying criminal 01-25-21 11:38 AM S.B. 127 - 21 - 617 activity associated with the applicant. 618 (e) The Bureau shall notify and release to the office all information of criminal activity 619 associated with the applicant. 620 (f) Upon notice from the office that a license has expired or an individual's direct 621 access to a child or a vulnerable adult has ceased for 90 days, the bureau shall: 622 (i) discard and destroy any retained fingerprints; and 623 (ii) notify the Federal Bureau of Investigation when the license has expired or an 624 individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau 625 of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of 626 Investigation Next Generation Identification System. 627 (5) (a) After conducting the background check described in Subsections (3) and (4), the 628 office shall deny an application to an applicant who, within three years before the day on which 629 the applicant submits information to the office under Subsection (2) for a background check, 630 has been convicted of any of the following, regardless of whether the offense is a felony, a 631 misdemeanor, or an infraction: 632 (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to 633 animals, or bestiality; 634 (ii) a violation of any pornography law, including sexual exploitation of a minor; 635 (iii) prostitution; 636 (iv) an offense included in: 637 (A) Title 76, Chapter 5, Offenses Against the Person; 638 (B) Section 76-5b-201, Sexual Exploitation of a Minor; or 639 (C) Title 76, Chapter 7, Offenses Against the Family; 640 (v) aggravated arson, as described in Section 76-6-103; 641 (vi) aggravated burglary, as described in Section 76-6-203; 642 (vii) aggravated robbery, as described in Section 76-6-302; 643 (viii) identity fraud crime, as described in Section 76-6-1102; or 644 (ix) a felony or misdemeanor offense committed outside of the state that, if committed 645 in the state, would constitute a violation of an offense described in Subsections (5)(a)(i) 646 through (viii). 647 (b) If the office denies an application to an applicant based on a conviction described in S.B. 127 01-25-21 11:38 AM - 22 - 648 Subsection (5)(a), the applicant is not entitled to a comprehensive review described in 649 Subsection (6). 650 (c) If the applicant will be working in a program serving only adults whose only 651 impairment is a mental health diagnosis, including that of a serious mental health disorder, 652 with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a) 653 do not apply, and the office shall conduct a comprehensive review as described in Subsection 654 (6). 655 (6) (a) The office shall conduct a comprehensive review of an applicant's background 656 check if the applicant: 657 (i) has an open court case or a conviction for any felony offense, not described in 658 Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on 659 which the applicant submits the application; 660 (ii) has an open court case or a conviction for a misdemeanor offense, not described in 661 Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter 662 3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day 663 on which the applicant submits information to the office under Subsection (2) for a background 664 check; 665 (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more 666 than three years before the day on which the applicant submitted information under Subsection 667 (2)(a); 668 (iv) is currently subject to a plea in abeyance or diversion agreement for any offense 669 described in Subsection (5)(a); 670 (v) has a listing in the Department of Human Services, Division of Child and Family 671 Services' Licensing Information System described in Section 62A-4a-1006; 672 (vi) has a listing in the Department of Human Services, Division of Aging and Adult 673 Services' vulnerable adult abuse, neglect, or exploitation database described in Section 674 62A-3-311.1; 675 (vii) has a record in the juvenile court of a substantiated finding of severe child abuse 676 or neglect described in Section 78A-6-323; 677 (viii) has a record of an adjudication in juvenile court for an act that, if committed by 678 an adult, would be a felony or misdemeanor, if the applicant is: 01-25-21 11:38 AM S.B. 127 - 23 - 679 (A) under 28 years [of age] old; or 680 (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to, 681 or is currently subject to a plea in abeyance or diversion agreement for a felony or a 682 misdemeanor offense described in Subsection (5)(a); 683 (ix) has a pending charge for an offense described in Subsection (5)(a); or 684 (x) is an applicant described in Subsection (5)(c). 685 (b) The comprehensive review described in Subsection (6)(a) shall include an 686 examination of: 687 (i) the date of the offense or incident; 688 (ii) the nature and seriousness of the offense or incident; 689 (iii) the circumstances under which the offense or incident occurred; 690 (iv) the age of the perpetrator when the offense or incident occurred; 691 (v) whether the offense or incident was an isolated or repeated incident; 692 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable 693 adult, including: 694 (A) actual or threatened, nonaccidental physical, mental, or financial harm; 695 (B) sexual abuse; 696 (C) sexual exploitation; or 697 (D) negligent treatment; 698 (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric 699 treatment received, or additional academic or vocational schooling completed; 700 (viii) the applicant's risk of harm to clientele in the program or in the capacity for 701 which the applicant is applying; and 702 (ix) any other pertinent information presented to or publicly available to the committee 703 members. 704 (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the 705 office shall deny an application to an applicant if the office finds that approval would likely 706 create a risk of harm to a child or a vulnerable adult. 707 (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the 708 office may not deny an application to an applicant solely because the applicant was convicted 709 of an offense that occurred 10 or more years before the day on which the applicant submitted S.B. 127 01-25-21 11:38 AM - 24 - 710 the information required under Subsection (2)(a) if: 711 (i) the applicant has not committed another misdemeanor or felony offense after the 712 day on which the conviction occurred; and 713 (ii) the applicant has never been convicted of an offense described in Subsection 714 (14)(c). 715 (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the 716 office may make rules, consistent with this chapter, to establish procedures for the 717 comprehensive review described in this Subsection (6). 718 (7) Subject to Subsection (10), the office shall approve an application to an applicant 719 who is not denied under Subsection (5), (6), or [(13)] (14). 720 (8) (a) The office may conditionally approve an application of an applicant, for a 721 maximum of 60 days after the day on which the office sends written notice to the applicant 722 under Subsection (12), without requiring that the applicant be directly supervised, if the office: 723 (i) is awaiting the results of the criminal history search of national criminal background 724 databases; and 725 (ii) would otherwise approve an application of the applicant under Subsection (7). 726 (b) The office may conditionally approve an application of an applicant, for a 727 maximum of one year after the day on which the office sends written notice to the applicant 728 under Subsection (12), without requiring that the applicant be directly supervised if the office: 729 (i) is awaiting the results of an out-of-state registry for providers other than foster and 730 adoptive parents; and 731 (ii) would otherwise approve an application of the applicant under Subsection (7). 732 (c) Upon receiving the results of the criminal history search of a national criminal 733 background database, the office shall approve or deny the application of the applicant in 734 accordance with Subsections (5) through (7). 735 (9) A licensee or department contractor may not permit an individual to have direct 736 access to a child or a vulnerable adult unless, subject to Subsection (10): 737 (a) the individual is associated with the licensee or department contractor and: 738 (i) the individual's application is approved by the office under this section; 739 (ii) the individual's application is conditionally approved by the office under 740 Subsection (8); or 01-25-21 11:38 AM S.B. 127 - 25 - 741 (iii) (A) the individual has submitted the background check information described in 742 Subsection (2) to the office; 743 (B) the office has not determined whether to approve the applicant's application; and 744 (C) the individual is directly supervised by an individual who has a current background 745 screening approval issued by the office under this section and is associated with the licensee or 746 department contractor; 747 (b) (i) the individual is associated with the licensee or department contractor; 748 (ii) the individual has a current background screening approval issued by the office 749 under this section; 750 (iii) one of the following circumstances, that the office has not yet reviewed under 751 Subsection (6), applies to the individual: 752 (A) the individual was charged with an offense described in Subsection (5)(a); 753 (B) the individual is listed in the Licensing Information System, described in Section 754 62A-4a-1006; 755 (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation 756 database, described in Section 62A-3-311.1; 757 (D) the individual has a record in the juvenile court of a substantiated finding of severe 758 child abuse or neglect, described in Section 78A-6-323; or 759 (E) the individual has a record of an adjudication in juvenile court for an act that, if 760 committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a) 761 or (6); and 762 (iv) the individual is directly supervised by an individual who: 763 (A) has a current background screening approval issued by the office under this 764 section; and 765 (B) is associated with the licensee or department contractor; 766 (c) the individual: 767 (i) is not associated with the licensee or department contractor; and 768 (ii) is directly supervised by an individual who: 769 (A) has a current background screening approval issued by the office under this 770 section; and 771 (B) is associated with the licensee or department contractor; S.B. 127 01-25-21 11:38 AM - 26 - 772 (d) the individual is the parent or guardian of the child, or the guardian of the 773 vulnerable adult; 774 (e) the individual is approved by the parent or guardian of the child, or the guardian of 775 the vulnerable adult, to have direct access to the child or the vulnerable adult; 776 (f) the individual is only permitted to have direct access to a vulnerable adult who 777 voluntarily invites the individual to visit; or 778 (g) the individual only provides incidental care for a foster child on behalf of a foster 779 parent who has used reasonable and prudent judgment to select the individual to provide the 780 incidental care for the foster child. 781 (10) An individual may not have direct access to a child or a vulnerable adult if the 782 individual is prohibited by court order from having that access. 783 (11) Notwithstanding any other provision of this section, an individual for whom the 784 office denies an application may not have direct access to a child or vulnerable adult unless the 785 office approves a subsequent application by the individual. 786 (12) (a) Within 30 days after the day on which the office receives the background 787 check information for an applicant, the office shall give notice of the clearance status to: 788 (i) the applicant, and the licensee or department contractor, of the office's decision 789 regarding the background check and findings; and 790 (ii) the applicant of any convictions and potentially disqualifying charges and 791 adjudications found in the search. 792 (b) With the notice described in Subsection (12)(a), the office shall also give the 793 applicant the details of any comprehensive review conducted under Subsection (6). 794 (c) If the notice under Subsection (12)(a) states that the applicant's application is 795 denied, the notice shall further advise the applicant that the applicant may, under Subsection 796 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to 797 challenge the office's decision. 798 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the 799 office shall make rules, consistent with this chapter: 800 (i) defining procedures for the challenge of the office's background check decision 801 described in Subsection (12)(c); and 802 (ii) expediting the process for renewal of a license under the requirements of this 01-25-21 11:38 AM S.B. 127 - 27 - 803 section and other applicable sections. 804 (13) An individual or a department contractor who provides services in an adults only 805 substance use disorder program, as defined by rule, is exempt from this section. This 806 exemption does not extend to a program director or a member, as defined by Section 807 62A-2-108, of the program. 808 (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements 809 of this section, if the background check of an applicant is being conducted for the purpose of 810 giving clearance status to an applicant seeking a position in a congregate care [facility] 811 program, an applicant for a one-time adoption, an applicant seeking to provide a prospective 812 foster home, or an applicant seeking to provide a prospective adoptive home, the office shall: 813 (i) check the child abuse and neglect registry in each state where each applicant resided 814 in the five years immediately preceding the day on which the applicant applied to be a foster 815 parent or adoptive parent, to determine whether the prospective foster parent or prospective 816 adoptive parent is listed in the registry as having a substantiated or supported finding of child 817 abuse or neglect; and 818 (ii) check the child abuse and neglect registry in each state where each adult living in 819 the home of the applicant described in Subsection (14)(a)(i) resided in the five years 820 immediately preceding the day on which the applicant applied to be a foster parent or adoptive 821 parent, to determine whether the adult is listed in the registry as having a substantiated or 822 supported finding of child abuse or neglect. 823 (b) The requirements described in Subsection (14)(a) do not apply to the extent that: 824 (i) federal law or rule permits otherwise; or 825 (ii) the requirements would prohibit the Division of Child and Family Services or a 826 court from placing a child with: 827 (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or 828 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307, 829 or 78A-6-307.5, pending completion of the background check described in Subsection (5). 830 (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an 831 applicant seeking a position in a congregate care [facility] program, an applicant for a one-time 832 adoption, an applicant to become a prospective foster parent, or an applicant to become a 833 prospective adoptive parent if the applicant has been convicted of: S.B. 127 01-25-21 11:38 AM - 28 - 834 (i) a felony involving conduct that constitutes any of the following: 835 (A) child abuse, as described in Section 76-5-109; 836 (B) commission of domestic violence in the presence of a child, as described in Section 837 76-5-109.1; 838 (C) abuse or neglect of a child with a disability, as described in Section 76-5-110; 839 (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5; 840 (E) aggravated murder, as described in Section 76-5-202; 841 (F) murder, as described in Section 76-5-203; 842 (G) manslaughter, as described in Section 76-5-205; 843 (H) child abuse homicide, as described in Section 76-5-208; 844 (I) homicide by assault, as described in Section 76-5-209; 845 (J) kidnapping, as described in Section 76-5-301; 846 (K) child kidnapping, as described in Section 76-5-301.1; 847 (L) aggravated kidnapping, as described in Section 76-5-302; 848 (M) human trafficking of a child, as described in Section 76-5-308.5; 849 (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses; 850 (O) sexual exploitation of a minor, as described in Section 76-5b-201; 851 (P) aggravated arson, as described in Section 76-6-103; 852 (Q) aggravated burglary, as described in Section 76-6-203; 853 (R) aggravated robbery, as described in Section 76-6-302; or 854 (S) domestic violence, as described in Section 77-36-1; or 855 (ii) an offense committed outside the state that, if committed in the state, would 856 constitute a violation of an offense described in Subsection (14)(c)(i). 857 (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or 858 license renewal to a prospective foster parent or a prospective adoptive parent if, within the five 859 years immediately preceding the day on which the individual's application or license would 860 otherwise be approved, the applicant was convicted of a felony involving conduct that 861 constitutes a violation of any of the following: 862 (i) aggravated assault, as described in Section 76-5-103; 863 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5; 864 (iii) mayhem, as described in Section 76-5-105; 01-25-21 11:38 AM S.B. 127 - 29 - 865 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act; 866 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act; 867 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances 868 Act; 869 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance 870 Precursor Act; or 871 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act. 872 (e) In addition to the circumstances described in Subsection (6)(a), the office shall 873 conduct the comprehensive review of an applicant's background check pursuant to this section 874 if the registry check described in Subsection (14)(a) indicates that the individual is listed in a 875 child abuse and neglect registry of another state as having a substantiated or supported finding 876 of a severe type of child abuse or neglect as defined in Section 62A-4a-1002. 877 Section 5. Section 62A-2-123 is enacted to read: 878 62A-2-123. Congregate care program regulation. 879 (1) A congregate care program may not use a cruel, severe, unusual, or unnecessary 880 practice on a child, including: 881 (a) a strip search; 882 (b) a body cavity search; 883 (c) inducing pain to obtain compliance; 884 (d) hyperextending joints; 885 (e) peer restraints; 886 (f) discipline or punishment that is intended to frighten or humiliate; 887 (g) requiring or forcing the child to take an uncomfortable position, including squatting 888 or bending; 889 (h) for the purpose of punishing or humiliating, requiring or forcing the child to repeat 890 physical movements or physical exercises such as running laps or performing push-ups; 891 (i) spanking, hitting, shaking, or otherwise engaging in aggressive physical contact; 892 (j) denying an essential program service; 893 (k) depriving the child of a meal, water, rest, or opportunity for toileting; 894 (l) denying shelter, clothing, or bedding; 895 (m) withholding personal interaction, emotional response, or stimulation; S.B. 127 01-25-21 11:38 AM - 30 - 896 (n) prohibiting the child from entering the residence; 897 (o) abuse as defined in Section 78A-6-105; and 898 (p) neglect as defined in Section 78A-6-105. 899 (2) Before a congregate care program may use a restraint or seclusion, the congregate 900 care program shall: 901 (a) develop and implement written policies and procedures that: 902 (i) describe the circumstances under which a staff member may use a restraint or 903 seclusion; 904 (ii) describe which staff members are authorized to use a restraint or seclusion; 905 (iii) describe procedures for monitoring a child that is restrained or in seclusion; 906 (iv) describe time limitations on the use of a restraint or seclusion; 907 (v) require immediate and continuous review of the decision to use a restraint or 908 seclusion; 909 (vi) require documenting the use of a restraint or seclusion; 910 (vii) describe record keeping requirements for records related to the use of a restraint or 911 seclusion; 912 (viii) require debriefing a child that was restrained or in seclusion, each witness to the 913 event, and each staff member involved; 914 (ix) include a procedure for complying with Subsection (5); and 915 (x) provide an administrative review process and required follow up actions after a 916 child is restrained or put in seclusion; and 917 (b) consult with the office to ensure that the congregate care program's written policies 918 and procedures align with industry standards and applicable law. 919 (3) A congregate care program: 920 (a) may use a passive physical restraint only if the passive physical restraint is 921 supported by a nationally or regionally recognized curriculum focused on non-violent 922 interventions and de-escalation techniques; 923 (b) may not use a chemical or mechanical restraint unless the office has authorized the 924 congregate care program to use a chemical or mechanical restraint; 925 (c) shall ensure that a staff member that uses a restraint on a child is: 926 (i) properly trained to use the restraint; and 01-25-21 11:38 AM S.B. 127 - 31 - 927 (ii) familiar with the child and if the child has a treatment plan, the child's treatment 928 plan; and 929 (d) shall train each staff member on how to intervene if another staff member fails to 930 follow correct procedures when using a restraint. 931 (4) (a) A congregate care program: 932 (i) may use seclusion if: 933 (A) the purpose for the seclusion is to ensure the immediate safety of the child or 934 others; and 935 (B) no less restrictive intervention is likely to ensure the safety of the child or others; 936 and 937 (ii) may not use seclusion: 938 (A) for coercion, retaliation, or humiliation; or 939 (B) due to inadequate staffing or for the staff's convenience. 940 (b) While a child is in seclusion, a staff member who is familiar to the child shall 941 actively supervise the child for the duration of the seclusion. 942 (5) Within one business day after the day on which a staff member uses a restraint or 943 seclusion, the congregate care program shall report the use of the restraint or seclusion to the 944 office and the child's parent or guardian. 945 (6) Subject to the office's review and approval, a congregate care program shall 946 develop: 947 (a) suicide prevention policies and procedures that describe: 948 (i) how the congregate care program will respond in the event a child exhibits 949 self-injurious, self-harm, or suicidal behavior; 950 (ii) warning signs of suicide; 951 (iii) emergency protocol and contacts; 952 (iv) training requirements for staff, including suicide prevention training and suicide 953 risk assessment tool training; 954 (v) procedures for implementing additional supervision precautions and for removing 955 any additional supervision precautions; 956 (vi) suicide risk assessment procedures on the day of intake; 957 (vii) documentation requirements for a child's suicide ideation and self-harm; S.B. 127 01-25-21 11:38 AM - 32 - 958 (viii) special observation precautions for a child exhibiting warning signs of suicide; 959 (ix) communication procedures to ensure all staff are aware of a child who exhibits 960 warning signs of suicide; 961 (x) a process for tracking suicide behavioral patterns; and 962 (xi) a post-intervention plan with identified resources; and 963 (b) based on state law and industry best practices, policies and procedures for 964 managing a child's behavior during the child's participation in the congregate care program. 965 (7) A congregate care program: 966 (a) shall facilitate communication between a child and the child's parents, guardian, 967 foster parents, and siblings, as applicable; 968 (b) shall ensure that the communication described in Subsection (7)(a) complies with 969 the child's treatment plan, if any; and 970 (c) may not use family contact as an incentive for proper behavior or withhold family 971 contact as a punishment. 972 Section 6. Section 62A-2-124 is enacted to read: 973 62A-2-124. Human services program non-discrimination. 974 A human services program: 975 (1) shall identify an individual by the individual's preferred name and pronouns; 976 (2) may not implement a dress code that prohibits or requires clothing on the basis of 977 biological sex; 978 (3) shall perform an individualized assessment when classifying and placing an 979 individual in programs and living environments; and 980 (4) subject to the office's review and approval, shall create policies and procedures that 981 include: 982 (a) a description of what constitutes sex and gender based abuse, discrimination, and 983 harassment; 984 (b) procedures for preventing and reporting abuse, discrimination, and harassment; and 985 (c) procedures for teaching effective and professional communication with individuals 986 of all sexual orientations and genders.

Enrolled Copy S.B. 127 1 HUMAN SERVICES PROGRAM AMENDMENTS 2 2021 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Michael K. McKell 5 House Sponsor: Brady Brammer 6 7 LONG TITLE 8 General Description: 9 This bill modifies provisions related to human services programs. 10 Highlighted Provisions: 11 This bill: 12 < defines terms; 13 < provides incident reporting requirements for persons licensed by the Office of 14 Licensing; 15 < requires the Office of Licensing to review certain policies and procedures 16 established by a human services program; 17 < requires a human services program to publicly post the Office of Licensing's contact 18 information; 19 < requires the Office of Licensing to inspect each congregate care program multiple 20 times a year; 21 < describes when a congregate care program may use a restraint or seclusion; 22 < requires a congregate care program to maintain suicide prevention policies; 23 < prohibits a human services program from engaging in sex and gender based 24 discrimination; and 25 < makes technical changes. 26 Money Appropriated in this Bill: 27 None 28 Other Special Clauses: S.B. 127 Enrolled Copy - 2 - 29 None 30 Utah Code Sections Affected: 31 AMENDS: 32 62A-2-101, as last amended by Laws of Utah 2019, Chapters 136, 193 and last 33 amended by Coordination Clause, Laws of Utah 2019, Chapter 193 34 62A-2-106, as last amended by Laws of Utah 2017, Chapter 148 35 62A-2-118, as last amended by Laws of Utah 2005, Chapter 188 36 62A-2-120, as last amended by Laws of Utah 2020, Chapters 176, 225, 250 and last 37 amended by Coordination Clause, Laws of Utah 2020, Chapter 225 38 ENACTS: 39 62A-2-123, Utah Code Annotated 1953 40 62A-2-124, Utah Code Annotated 1953 41 42 Be it enacted by the Legislature of the state of Utah: 43 Section 1. Section 62A-2-101 is amended to read: 44 62A-2-101. Definitions. 45 As used in this chapter: 46 (1) "Adult day care" means nonresidential care and supervision: 47 (a) for three or more adults for at least four but less than 24 hours a day; and 48 (b) that meets the needs of functionally impaired adults through a comprehensive 49 program that provides a variety of health, social, recreational, and related support services in a 50 protective setting. 51 (2) "Applicant" means a person who applies for an initial license or a license renewal 52 under this chapter. 53 (3) (a) "Associated with the licensee" means that an individual is: 54 (i) affiliated with a licensee as an owner, director, member of the governing body, 55 employee, agent, provider of care, department contractor, or volunteer; or Enrolled Copy S.B. 127 - 3 - 56 (ii) applying to become affiliated with a licensee in a capacity described in Subsection 57 (3)(a)(i). 58 (b) "Associated with the licensee" does not include: 59 (i) service on the following bodies, unless that service includes direct access to a child 60 or a vulnerable adult: 61 (A) a local mental health authority described in Section 17-43-301; 62 (B) a local substance abuse authority described in Section 17-43-201; or 63 (C) a board of an organization operating under a contract to provide mental health or 64 substance abuse programs, or services for the local mental health authority or substance abuse 65 authority; or 66 (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised 67 at all times. 68 (4) (a) "Boarding school" means a private school that: 69 (i) uses a regionally accredited education program; 70 (ii) provides a residence to the school's students: 71 (A) for the purpose of enabling the school's students to attend classes at the school; and 72 (B) as an ancillary service to educating the students at the school; 73 (iii) has the primary purpose of providing the school's students with an education, as 74 defined in Subsection (4)(b)(i); and 75 (iv) (A) does not provide the treatment or services described in Subsection [(33)(a)] 76 (36)(a); or 77 (B) provides the treatment or services described in Subsection [(33)(a)] (36)(a) on a 78 limited basis, as described in Subsection (4)(b)(ii). 79 (b) (i) For purposes of Subsection (4)(a)(iii), "education" means a course of study for 80 one or more of grades kindergarten through 12th grade. 81 (ii) For purposes of Subsection (4)(a)(iv)(B), a private school provides the treatment or 82 services described in Subsection [(33)(a)] (36)(a) on a limited basis if: S.B. 127 Enrolled Copy - 4 - 83 (A) the treatment or services described in Subsection [(33)(a)] (36)(a) are provided 84 only as an incidental service to a student; and 85 (B) the school does not: 86 (I) specifically solicit a student for the purpose of providing the treatment or services 87 described in Subsection [(33)(a)] (36)(a); or 88 (II) have a primary purpose of providing the treatment or services described in 89 Subsection [(33)(a)] (36)(a). 90 (c) "Boarding school" does not include a therapeutic school. 91 (5) "Child" means [a person] an individual under 18 years [of age] old. 92 (6) "Child placing" means receiving, accepting, or providing custody or care for any 93 child, temporarily or permanently, for the purpose of: 94 (a) finding a person to adopt the child; 95 (b) placing the child in a home for adoption; or 96 (c) foster home placement. 97 (7) "Child-placing agency" means a person that engages in child placing. 98 (8) "Client" means an individual who receives or has received services from a licensee. 99 (9) "Congregate care program" means any of the following that provide services to a 100 child: 101 (a) an outdoor youth program; 102 (b) a residential support program; 103 (c) a residential treatment program; or 104 (d) a therapeutic school. 105 [(9)] (10) "Day treatment" means specialized treatment that is provided to: 106 (a) a client less than 24 hours a day; and 107 (b) four or more persons who: 108 (i) are unrelated to the owner or provider; and 109 (ii) have emotional, psychological, developmental, physical, or behavioral Enrolled Copy S.B. 127 - 5 - 110 dysfunctions, impairments, or chemical dependencies. 111 [(10)] (11) "Department" means the Department of Human Services. 112 [(11)] (12) "Department contractor" means an individual who: 113 (a) provides services under a contract with the department; and 114 (b) due to the contract with the department, has or will likely have direct access to a 115 child or vulnerable adult. 116 [(12)] (13) "Direct access" means that an individual has, or likely will have: 117 (a) contact with or access to a child or vulnerable adult that provides the individual 118 with an opportunity for personal communication or touch; or 119 (b) an opportunity to view medical, financial, or other confidential personal identifying 120 information of the child, the child's parents or legal guardians, or the vulnerable adult. 121 [(13)] (14) "Directly supervised" means that an individual is being supervised under 122 the uninterrupted visual and auditory surveillance of another individual who has a current 123 background screening approval issued by the office. 124 [(14)] (15) "Director" means the director of the Office of Licensing. 125 [(15)] (16) "Domestic violence" means the same as that term is defined in Section 126 77-36-1. 127 [(16)] (17) "Domestic violence treatment program" means a nonresidential program 128 designed to provide psychological treatment and educational services to perpetrators and 129 victims of domestic violence. 130 [(17)] (18) "Elder adult" means a person 65 years [of age] old or older. 131 [(18)] (19) "Executive director" means the executive director of the department. 132 [(19)] (20) "Foster home" means a residence that is licensed or certified by the Office 133 of Licensing for the full-time substitute care of a child. 134 [(20)] (21) "Health benefit plan" means the same as that term is defined in Section 135 31A-1-301. 136 [(21)] (22) "Health care provider" means the same as that term is defined in Section S.B. 127 Enrolled Copy - 6 - 137 78B-3-403. 138 [(22)] (23) "Health insurer" means the same as that term is defined in Section 139 31A-22-615.5. 140 [(23)] (24) (a) "Human services program" means [a]: 141 (i) a foster home; 142 (ii) a therapeutic school; 143 (iii) a youth program; 144 (iv) an outdoor youth program; 145 (v) a residential treatment program; 146 (vi) a residential support program; 147 [(iv)] (vii) a resource family home; 148 [(v)] (viii) a recovery residence; or 149 [(vi)] (ix) a facility or program that provides: 150 [(A) secure treatment;] 151 [(B) inpatient treatment;] 152 [(C) residential treatment;] 153 [(D) residential support;] 154 [(E)] (A) adult day care; 155 [(F)] (B) day treatment; 156 [(G)] (C) outpatient treatment; 157 [(H)] (D) domestic violence treatment; 158 [(I)] (E) child-placing services; 159 [(J)] (F) social detoxification; or 160 [(K)] (G) any other human services that are required by contract with the department to 161 be licensed with the department. 162 (b) "Human services program" does not include: 163 (i) a boarding school; or Enrolled Copy S.B. 127 - 7 - 164 (ii) a residential, vocational and life skills program, as defined in Section 13-53-102. 165 [(24)] (25) "Indian child" means the same as that term is defined in 25 U.S.C. Sec. 166 1903. 167 [(25)] (26) "Indian country" means the same as that term is defined in 18 U.S.C. Sec. 168 1151. 169 [(26)] (27) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec. 170 1903. 171 (28) "Intermediate secure treatment" means 24-hour specialized residential treatment or 172 care for an individual who: 173 (a) cannot live independently or in a less restrictive environment; and 174 (b) requires, without the individual's consent or control, the use of locked doors to care 175 for the individual. 176 [(27)] (29) "Licensee" means an individual or a human services program licensed by 177 the office. 178 [(28)] (30) "Local government" means a city, town, metro township, or county. 179 [(29)] (31) "Minor" has the same meaning as "child." 180 [(30)] (32) "Office" means the Office of Licensing within the Department of Human 181 Services. 182 (33) "Outdoor youth program" means a program that provides: 183 (a) services to a child that has: 184 (i) a chemical dependency; or 185 (ii) a dysfunction or impairment that is emotional, psychological, developmental, or 186 behavioral; 187 (b) a 24-hour outdoor group living environment; and 188 (c) (i) regular therapy, including group, individual, or supportive family therapy; or 189 (ii) informal therapy or similar services, including wilderness therapy, adventure 190 therapy, or outdoor behavioral healthcare. S.B. 127 Enrolled Copy - 8 - 191 [(31)] (34) "Outpatient treatment" means individual, family, or group therapy or 192 counseling designed to improve and enhance social or psychological functioning for those 193 whose physical and emotional status allows them to continue functioning in their usual living 194 environment. 195 [(32)] (35) "Practice group" or "group practice" means two or more health care 196 providers legally organized as a partnership, professional corporation, or similar association, 197 for which: 198 (a) substantially all of the services of the health care providers who are members of the 199 group are provided through the group and are billed in the name of the group and amounts 200 received are treated as receipts of the group; and 201 (b) the overhead expenses of and the income from the practice are distributed in 202 accordance with methods previously determined by members of the group. 203 [(33)] (36) (a) "Recovery residence" means a home, residence, or facility that meets at 204 least two of the following requirements: 205 (i) provides a supervised living environment for individuals recovering from a 206 substance use disorder; 207 (ii) provides a living environment in which more than half of the individuals in the 208 residence are recovering from a substance use disorder; 209 (iii) provides or arranges for residents to receive services related to their recovery from 210 a substance use disorder, either on or off site; 211 (iv) is held out as a living environment in which individuals recovering from substance 212 abuse disorders live together to encourage continued sobriety; or 213 (v) (A) receives public funding; or 214 (B) is run as a business venture, either for-profit or not-for-profit. 215 (b) "Recovery residence" does not mean: 216 (i) a residential treatment program; 217 (ii) residential support; or Enrolled Copy S.B. 127 - 9 - 218 (iii) a home, residence, or facility, in which: 219 (A) residents, by their majority vote, establish, implement, and enforce policies 220 governing the living environment, including the manner in which applications for residence are 221 approved and the manner in which residents are expelled; 222 (B) residents equitably share rent and housing-related expenses; and 223 (C) a landlord, owner, or operator does not receive compensation, other than fair 224 market rental income, for establishing, implementing, or enforcing policies governing the 225 living environment. 226 [(34)] (37) "Regular business hours" means: 227 (a) the hours during which services of any kind are provided to a client; or 228 (b) the hours during which a client is present at the facility of a licensee. 229 [(35)] (38) (a) "Residential support program" means [arranging for or providing] a 230 program that arranges for or provides the necessities of life as a protective service to 231 individuals or families who have a disability or who are experiencing a dislocation or 232 emergency that prevents them from providing these services for themselves or their families. 233 (b) "Residential support program" includes [providing] a program that provides a 234 supervised living environment for [persons] individuals with dysfunctions or impairments that 235 are: 236 (i) emotional; 237 (ii) psychological; 238 (iii) developmental; or 239 (iv) behavioral. 240 (c) Treatment is not a necessary component of a residential support program. 241 (d) "Residential support program" does not include: 242 (i) a recovery residence; or 243 (ii) a program that provides residential services that are performed: 244 (A) exclusively under contract with the department and provided to individuals through S.B. 127 Enrolled Copy - 10 - 245 the Division of Services for People with Disabilities; or 246 (B) in a facility that serves fewer than four individuals. 247 [(36)] (39) (a) "Residential treatment" means a 24-hour group living environment for 248 four or more individuals unrelated to the owner or provider that offers room or board and 249 specialized treatment, behavior modification, rehabilitation, discipline, emotional growth, or 250 habilitation services for persons with emotional, psychological, developmental, or behavioral 251 dysfunctions, impairments, or chemical dependencies. 252 (b) "Residential treatment" does not include a: 253 (i) boarding school; 254 (ii) foster home; or 255 (iii) recovery residence. 256 [(37)] (40) "Residential treatment program" means a [human services program] a 257 program or facility that provides: 258 (a) residential treatment; or 259 (b) intermediate secure treatment. 260 [(38) (a) "Secure treatment" means 24-hour specialized residential treatment or care for 261 persons whose current functioning is such that they cannot live independently or in a less 262 restrictive environment.] 263 [(b) "Secure treatment" differs from residential treatment to the extent that it requires 264 intensive supervision, locked doors, and other security measures that are imposed on residents 265 with neither their consent nor control.] 266 (41) "Seclusion" means the involuntary confinement of an individual in a room or an 267 area: 268 (a) away from the individual's peers; and 269 (b) in a manner that physically prevents the individual from leaving the room or area. 270 [(39)] (42) "Social detoxification" means short-term residential services for persons 271 who are experiencing or have recently experienced drug or alcohol intoxication, that are Enrolled Copy S.B. 127 - 11 - 272 provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care 273 Facility Licensing and Inspection Act, and that include: 274 (a) room and board for persons who are unrelated to the owner or manager of the 275 facility; 276 (b) specialized rehabilitation to acquire sobriety; and 277 (c) aftercare services. 278 [(40)] (43) "Substance abuse disorder" or "substance use disorder" mean the same as 279 "substance use disorder" is defined in Section 62A-15-1202. 280 [(41)] (44) "Substance abuse treatment program" or "substance use disorder treatment 281 program" means a program: 282 (a) designed to provide: 283 (i) specialized drug or alcohol treatment; 284 (ii) rehabilitation; or 285 (iii) habilitation services; and 286 (b) that provides the treatment or services described in Subsection [(41)] (44)(a) to 287 persons with: 288 (i) a diagnosed substance use disorder; or 289 (ii) chemical dependency disorder. 290 [(42)] (45) "Therapeutic school" means a residential group living facility: 291 (a) for four or more individuals that are not related to: 292 (i) the owner of the facility; or 293 (ii) the primary service provider of the facility; 294 (b) that serves students who have a history of failing to function: 295 (i) at home; 296 (ii) in a public school; or 297 (iii) in a nonresidential private school; and 298 (c) that offers: S.B. 127 Enrolled Copy - 12 - 299 (i) room and board; and 300 (ii) an academic education integrated with: 301 (A) specialized structure and supervision; or 302 (B) services or treatment related to: 303 (I) a disability; 304 (II) emotional development; 305 (III) behavioral development; 306 (IV) familial development; or 307 (V) social development. 308 [(43)] (46) "Unrelated persons" means persons other than parents, legal guardians, 309 grandparents, brothers, sisters, uncles, or aunts. 310 [(44)] (47) "Vulnerable adult" means an elder adult or an adult who has a temporary or 311 permanent mental or physical impairment that substantially affects the person's ability to: 312 (a) provide personal protection; 313 (b) provide necessities such as food, shelter, clothing, or mental or other health care; 314 (c) obtain services necessary for health, safety, or welfare; 315 (d) carry out the activities of daily living; 316 (e) manage the adult's own resources; or 317 (f) comprehend the nature and consequences of remaining in a situation of abuse, 318 neglect, or exploitation. 319 [(45)] (48) (a) "Youth program" means a [nonresidential] program designed to provide 320 behavioral, substance abuse, or mental health services to minors that: 321 (i) serves adjudicated or nonadjudicated youth; 322 (ii) charges a fee for its services; 323 (iii) may [or may not] provide host homes or other arrangements for overnight 324 accommodation of the youth; 325 (iv) may [or may not] provide all or part of its services in the outdoors; Enrolled Copy S.B. 127 - 13 - 326 (v) may [or may not] limit or censor access to parents or guardians; and 327 (vi) prohibits or restricts a minor's ability to leave the program at any time of the 328 minor's own free will. 329 (b) "Youth program" does not include recreational programs such as Boy Scouts, Girl 330 Scouts, 4-H, and other such organizations. 331 Section 2. Section 62A-2-106 is amended to read: 332 62A-2-106. Office responsibilities. 333 (1) Subject to the requirements of federal and state law, the office shall: 334 (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative 335 Rulemaking Act, to establish: 336 (i) except as provided in Subsection (1)(a)(ii), basic health and safety standards for 337 licensees, that shall be limited to: 338 (A) fire safety; 339 (B) food safety; 340 (C) sanitation; 341 (D) infectious disease control; 342 (E) safety of the: 343 (I) physical facility and grounds; and 344 (II) area and community surrounding the physical facility; 345 (F) transportation safety; 346 (G) emergency preparedness and response; 347 (H) the administration of medical standards and procedures, consistent with the related 348 provisions of this title; 349 (I) staff and client safety and protection; 350 (J) the administration and maintenance of client and service records; 351 (K) staff qualifications and training, including standards for permitting experience to 352 be substituted for education, unless prohibited by law; S.B. 127 Enrolled Copy - 14 - 353 (L) staff to client ratios; 354 (M) access to firearms; and 355 (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud; 356 (ii) basic health and safety standards for therapeutic schools, that shall be limited to: 357 (A) fire safety, except that the standards are limited to those required by law or rule 358 under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks Act; 359 (B) food safety; 360 (C) sanitation; 361 (D) infectious disease control, except that the standards are limited to: 362 (I) those required by law or rule under Title 26, Utah Health Code, or Title 26A, Local 363 Health Authorities; and 364 (II) requiring a separate room for clients who are sick; 365 (E) safety of the physical facility and grounds, except that the standards are limited to 366 those required by law or rule under Title 53, Chapter 7, Part 2, Fire Prevention and Fireworks 367 Act; 368 (F) transportation safety; 369 (G) emergency preparedness and response; 370 (H) access to appropriate medical care, including: 371 (I) subject to the requirements of law, designation of a person who is authorized to 372 dispense medication; and 373 (II) storing, tracking, and securing medication; 374 (I) staff and client safety and protection that permits the school to provide for the direct 375 supervision of clients at all times; 376 (J) the administration and maintenance of client and service records; 377 (K) staff qualifications and training, including standards for permitting experience to 378 be substituted for education, unless prohibited by law; 379 (L) staff to client ratios; Enrolled Copy S.B. 127 - 15 - 380 (M) access to firearms; and 381 (N) the prevention of abuse, neglect, exploitation, harm, mistreatment, or fraud; 382 (iii) procedures and standards for permitting a licensee to: 383 (A) provide in the same facility and under the same conditions as children, residential 384 treatment services to a person 18 years old or older who: 385 (I) begins to reside at the licensee's residential treatment facility before the person's 386 18th birthday; 387 (II) has resided at the licensee's residential treatment facility continuously since the 388 time described in Subsection (1)(a)(iii)(A)(I); 389 (III) has not completed the course of treatment for which the person began residing at 390 the licensee's residential treatment facility; and 391 (IV) voluntarily consents to complete the course of treatment described in Subsection 392 (1)(a)(iii)(A)(III); or 393 (B) (I) provide residential treatment services to a child who is: 394 (Aa) [12 years old or older] at least 12 years old or, as approved by the office, younger 395 than 12 years old; and 396 (Bb) under the custody of the Department of Human Services, or one of its divisions; 397 and 398 (II) provide, in the same facility as a child described in Subsection (1)(a)(iii)(B)(I), 399 residential treatment services to a person who is: 400 (Aa) at least 18 years old, but younger than 21 years old; and 401 (Bb) under the custody of the Department of Human Services, or one of its divisions; 402 (iv) minimum administration and financial requirements for licensees; 403 (v) guidelines for variances from rules established under this Subsection (1); 404 (vi) ethical standards, as described in Subsection 78B-6-106(3), and minimum 405 responsibilities of a child-placing agency that provides adoption services and that is licensed 406 under this chapter; S.B. 127 Enrolled Copy - 16 - 407 (vii) what constitutes an "outpatient treatment program" for purposes of this chapter; 408 (viii) a procedure requiring a licensee to provide an insurer the licensee's records 409 related to any services or supplies billed to the insurer, and a procedure allowing the licensee 410 and the insurer to contact the Insurance Department to resolve any disputes; 411 (ix) a protocol for the office to investigate and process complaints about licensees; 412 [and] 413 (x) a procedure for [licensees to report incidents;] a licensee to: 414 (A) report the use of a restraint or seclusion within one business day after the day on 415 which the use of the restraint or seclusion occurs; and 416 (B) report a critical incident within one business day after the day on which the 417 incident occurs; 418 (xi) guidelines for the policies and procedures described in Sections 62A-2-123 and 419 62A-2-124; 420 (xii) a procedure for the office to review and approve the policies and procedures 421 described in Sections 62A-2-123 and 62A-2-124; and 422 (xiii) a requirement that each human services program publicly post information that 423 informs an individual how to submit a complaint about a human services program to the office; 424 (b) enforce rules relating to the office; 425 (c) issue licenses in accordance with this chapter; 426 (d) if the United States Department of State executes an agreement with the office that 427 designates the office to act as an accrediting entity in accordance with the Intercountry 428 Adoption Act of 2000, Pub. L. No. 106-279, accredit one or more agencies and persons to 429 provide intercountry adoption services pursuant to: 430 (i) the Intercountry Adoption Act of 2000, Pub. L. No. 106-279; and 431 (ii) the implementing regulations for the Intercountry Adoption Act of 2000, Pub. L. 432 No. 106-279; 433 (e) make rules to implement the provisions of Subsection (1)(d); Enrolled Copy S.B. 127 - 17 - 434 (f) conduct surveys and inspections of licensees and facilities in accordance with 435 Section 62A-2-118; 436 (g) collect licensure fees; 437 (h) notify licensees of the name of a person within the department to contact when 438 filing a complaint; 439 (i) investigate complaints regarding any licensee or human services program; 440 (j) have access to all records, correspondence, and financial data required to be 441 maintained by a licensee; 442 (k) have authority to interview any client, family member of a client, employee, or 443 officer of a licensee; 444 (l) have authority to deny, condition, revoke, suspend, or extend any license issued by 445 the department under this chapter by following the procedures and requirements of Title 63G, 446 Chapter 4, Administrative Procedures Act; 447 (m) electronically post notices of agency action issued to a human services program, 448 with the exception of a foster home, on the office's website, in accordance with Title 63G, 449 Chapter 2, Government Records Access and Management Act; and 450 (n) upon receiving a local government's request under Section 62A-2-108.4, notify the 451 local government of new human services program license applications, except for foster 452 homes, for human services programs located within the local government's jurisdiction. 453 (2) In establishing rules under Subsection (1)(a)(ii)(G), the office shall require a 454 licensee to establish and comply with an emergency response plan that requires clients and staff 455 to: 456 (a) immediately report to law enforcement any significant criminal activity, as defined 457 by rule, committed: 458 (i) on the premises where the licensee operates its human services program; 459 (ii) by or against its clients; or 460 (iii) by or against a staff member while the staff member is on duty; S.B. 127 Enrolled Copy - 18 - 461 (b) immediately report to emergency medical services any medical emergency, as 462 defined by rule: 463 (i) on the premises where the licensee operates its human services program; 464 (ii) involving its clients; or 465 (iii) involving a staff member while the staff member is on duty; and 466 (c) immediately report other emergencies that occur on the premises where the licensee 467 operates its human services program to the appropriate emergency services agency. 468 Section 3. Section 62A-2-118 is amended to read: 469 62A-2-118. Administrative inspections. 470 (1) (a) [The] Subject to Subsection (1)(b), the office may, for the purpose of 471 ascertaining compliance with this chapter, enter and inspect on a routine basis the facility of a 472 licensee. 473 (b) (i) The office shall enter and inspect a congregate care program at least once each 474 calendar quarter. 475 (ii) At least two of the inspections described in Subsection (1)(b)(i) shall be 476 unannounced. 477 (c) If another government entity conducts an inspection that is substantially similar to 478 an inspection conducted by the office, the office may conclude the inspection satisfies an 479 inspection described in Subsection (1)(b). 480 (2) Before conducting an inspection under Subsection (1), the office shall, after 481 identifying the person in charge: 482 (a) give proper identification; 483 (b) request to see the applicable license; 484 (c) describe the nature and purpose of the inspection; and 485 (d) if necessary, explain the authority of the office to conduct the inspection and the 486 penalty for refusing to permit the inspection as provided in Section 62A-2-116. 487 (3) In conducting an inspection under Subsection (1), the office may, after meeting the Enrolled Copy S.B. 127 - 19 - 488 requirements of Subsection (2): 489 (a) inspect the physical facilities; 490 (b) inspect and copy records and documents; 491 (c) interview officers, employees, clients, family members of clients, and others; and 492 (d) observe the licensee in operation. 493 (4) An inspection conducted under Subsection (1) shall be during regular business 494 hours and may be announced or unannounced. 495 (5) The licensee shall make copies of inspection reports available to the public upon 496 request. 497 (6) The provisions of this section apply to on-site inspections and do not restrict the 498 office from contacting family members, neighbors, or other individuals, or from seeking 499 information from other sources to determine compliance with this chapter. 500 Section 4. Section 62A-2-120 is amended to read: 501 62A-2-120. Background check -- Direct access to children or vulnerable adults. 502 (1) As used in this section: 503 (a) (i) "Applicant" means: 504 (A) the same as that term is defined in Section 62A-2-101; 505 (B) an individual who is associated with a licensee and has or will likely have direct 506 access to a child or a vulnerable adult; 507 (C) an individual who provides respite care to a foster parent or an adoptive parent on 508 more than one occasion; 509 (D) a department contractor; 510 (E) a guardian submitting an application on behalf of an individual, other than the child 511 or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or 512 older and resides in a home, that is licensed or certified by the office, with the child or 513 vulnerable adult who is receiving services; or 514 (F) a guardian submitting an application on behalf of an individual, other than the child S.B. 127 Enrolled Copy - 20 - 515 or vulnerable adult who is receiving the service, if the individual is 12 years [of age] old or 516 older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D). 517 (ii) "Applicant" does not mean an individual, including an adult, who is in the custody 518 of the Division of Child and Family Services or the Division of Juvenile Justice Services. 519 (b) "Application" means a background screening application to the office. 520 (c) "Bureau" means the Bureau of Criminal Identification within the Department of 521 Public Safety, created in Section 53-10-201. 522 (d) "Incidental care" means occasional care, not in excess of five hours per week and 523 never overnight, for a foster child. 524 (e) "Personal identifying information" means: 525 (i) current name, former names, nicknames, and aliases; 526 (ii) date of birth; 527 (iii) physical address and email address; 528 (iv) telephone number; 529 (v) driver license or other government-issued identification; 530 (vi) social security number; 531 (vii) only for applicants who are 18 years [of age] old or older, fingerprints, in a form 532 specified by the office; and 533 (viii) other information specified by the office by rule made in accordance with Title 534 63G, Chapter 3, Utah Administrative Rulemaking Act. 535 (2) (a) Except as provided in Subsection (13), an applicant or a representative shall 536 submit the following to the office: 537 (i) personal identifying information; 538 (ii) a fee established by the office under Section 63J-1-504; and 539 (iii) a disclosure form, specified by the office, for consent for: 540 (A) an initial background check upon submission of the information described under 541 this Subsection (2)(a); Enrolled Copy S.B. 127 - 21 - 542 (B) ongoing monitoring of fingerprints and registries until no longer associated with a 543 licensee for 90 days; 544 (C) a background check when the office determines that reasonable cause exists; and 545 (D) retention of personal identifying information, including fingerprints, for 546 monitoring and notification as described in Subsections (3)(d) and (4). 547 (b) In addition to the requirements described in Subsection (2)(a), if an applicant 548 resided outside of the United States and its territories during the five years immediately 549 preceding the day on which the information described in Subsection (2)(a) is submitted to the 550 office, the office may require the applicant to submit documentation establishing whether the 551 applicant was convicted of a crime during the time that the applicant resided outside of the 552 United States or its territories. 553 (3) The office: 554 (a) shall perform the following duties as part of a background check of an applicant: 555 (i) check state and regional criminal background databases for the applicant's criminal 556 history by: 557 (A) submitting personal identifying information to the bureau for a search; or 558 (B) using the applicant's personal identifying information to search state and regional 559 criminal background databases as authorized under Section 53-10-108; 560 (ii) submit the applicant's personal identifying information and fingerprints to the 561 bureau for a criminal history search of applicable national criminal background databases; 562 (iii) search the Department of Human Services, Division of Child and Family Services' 563 Licensing Information System described in Section 62A-4a-1006; 564 (iv) search the Department of Human Services, Division of Aging and Adult Services' 565 vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1; 566 (v) search the juvenile court records for substantiated findings of severe child abuse or 567 neglect described in Section 78A-6-323; and 568 (vi) search the juvenile court arrest, adjudication, and disposition records, as provided S.B. 127 Enrolled Copy - 22 - 569 under Section 78A-6-209; 570 (b) shall conduct a background check of an applicant for an initial background check 571 upon submission of the information described under Subsection (2)(a); 572 (c) may conduct all or portions of a background check of an applicant, as provided by 573 rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative 574 Rulemaking Act: 575 (i) for an annual renewal; or 576 (ii) when the office determines that reasonable cause exists; 577 (d) may submit an applicant's personal identifying information, including fingerprints, 578 to the bureau for checking, retaining, and monitoring of state and national criminal background 579 databases and for notifying the office of new criminal activity associated with the applicant; 580 (e) shall track the status of an approved applicant under this section to ensure that an 581 approved applicant is not required to duplicate the submission of the applicant's fingerprints if 582 the applicant applies for: 583 (i) more than one license; 584 (ii) direct access to a child or a vulnerable adult in more than one human services 585 program; or 586 (iii) direct access to a child or a vulnerable adult under a contract with the department; 587 (f) shall track the status of each license and each individual with direct access to a child 588 or a vulnerable adult and notify the bureau within 90 days after the day on which the license 589 expires or the individual's direct access to a child or a vulnerable adult ceases; 590 (g) shall adopt measures to strictly limit access to personal identifying information 591 solely to the individuals responsible for processing and entering the applications for 592 background checks and to protect the security of the personal identifying information the office 593 reviews under this Subsection (3); 594 (h) as necessary to comply with the federal requirement to check a state's child abuse 595 and neglect registry regarding any individual working in a congregate care [setting that serves Enrolled Copy S.B. 127 - 23 - 596 children] program, shall: 597 (i) search the Department of Human Services, Division of Child and Family Services' 598 Licensing Information System described in Section 62A-4a-1006; and 599 (ii) require the child abuse and neglect registry be checked in each state where an 600 applicant resided at any time during the five years immediately preceding the day on which the 601 applicant submits the information described in Subsection (2)(a) to the office; and 602 (i) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative 603 Rulemaking Act, to implement the provisions of this Subsection (3) relating to background 604 checks. 605 (4) (a) With the personal identifying information the office submits to the bureau under 606 Subsection (3), the bureau shall check against state and regional criminal background databases 607 for the applicant's criminal history. 608 (b) With the personal identifying information and fingerprints the office submits to the 609 bureau under Subsection (3), the bureau shall check against national criminal background 610 databases for the applicant's criminal history. 611 (c) Upon direction from the office, and with the personal identifying information and 612 fingerprints the office submits to the bureau under Subsection (3)(d), the bureau shall: 613 (i) maintain a separate file of the fingerprints for search by future submissions to the 614 local and regional criminal records databases, including latent prints; and 615 (ii) monitor state and regional criminal background databases and identify criminal 616 activity associated with the applicant. 617 (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of 618 Investigation Next Generation Identification System, to be retained in the Federal Bureau of 619 Investigation Next Generation Identification System for the purpose of: 620 (i) being searched by future submissions to the national criminal records databases, 621 including the Federal Bureau of Investigation Next Generation Identification System and latent 622 prints; and S.B. 127 Enrolled Copy - 24 - 623 (ii) monitoring national criminal background databases and identifying criminal 624 activity associated with the applicant. 625 (e) The Bureau shall notify and release to the office all information of criminal activity 626 associated with the applicant. 627 (f) Upon notice from the office that a license has expired or an individual's direct 628 access to a child or a vulnerable adult has ceased for 90 days, the bureau shall: 629 (i) discard and destroy any retained fingerprints; and 630 (ii) notify the Federal Bureau of Investigation when the license has expired or an 631 individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau 632 of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of 633 Investigation Next Generation Identification System. 634 (5) (a) After conducting the background check described in Subsections (3) and (4), the 635 office shall deny an application to an applicant who, within three years before the day on which 636 the applicant submits information to the office under Subsection (2) for a background check, 637 has been convicted of any of the following, regardless of whether the offense is a felony, a 638 misdemeanor, or an infraction: 639 (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to 640 animals, or bestiality; 641 (ii) a violation of any pornography law, including sexual exploitation of a minor; 642 (iii) prostitution; 643 (iv) an offense included in: 644 (A) Title 76, Chapter 5, Offenses Against the Person; 645 (B) Section 76-5b-201, Sexual Exploitation of a Minor; or 646 (C) Title 76, Chapter 7, Offenses Against the Family; 647 (v) aggravated arson, as described in Section 76-6-103; 648 (vi) aggravated burglary, as described in Section 76-6-203; 649 (vii) aggravated robbery, as described in Section 76-6-302; Enrolled Copy S.B. 127 - 25 - 650 (viii) identity fraud crime, as described in Section 76-6-1102; or 651 (ix) a felony or misdemeanor offense committed outside of the state that, if committed 652 in the state, would constitute a violation of an offense described in Subsections (5)(a)(i) 653 through (viii). 654 (b) If the office denies an application to an applicant based on a conviction described in 655 Subsection (5)(a), the applicant is not entitled to a comprehensive review described in 656 Subsection (6). 657 (c) If the applicant will be working in a program serving only adults whose only 658 impairment is a mental health diagnosis, including that of a serious mental health disorder, 659 with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a) 660 do not apply, and the office shall conduct a comprehensive review as described in Subsection 661 (6). 662 (6) (a) The office shall conduct a comprehensive review of an applicant's background 663 check if the applicant: 664 (i) has an open court case or a conviction for any felony offense, not described in 665 Subsection (5)(a), with a date of conviction that is no more than 10 years before the date on 666 which the applicant submits the application; 667 (ii) has an open court case or a conviction for a misdemeanor offense, not described in 668 Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter 669 3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day 670 on which the applicant submits information to the office under Subsection (2) for a background 671 check; 672 (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more 673 than three years before the day on which the applicant submitted information under Subsection 674 (2)(a); 675 (iv) is currently subject to a plea in abeyance or diversion agreement for any offense 676 described in Subsection (5)(a); S.B. 127 Enrolled Copy - 26 - 677 (v) has a listing in the Department of Human Services, Division of Child and Family 678 Services' Licensing Information System described in Section 62A-4a-1006; 679 (vi) has a listing in the Department of Human Services, Division of Aging and Adult 680 Services' vulnerable adult abuse, neglect, or exploitation database described in Section 681 62A-3-311.1; 682 (vii) has a record in the juvenile court of a substantiated finding of severe child abuse 683 or neglect described in Section 78A-6-323; 684 (viii) has a record of an adjudication in juvenile court for an act that, if committed by 685 an adult, would be a felony or misdemeanor, if the applicant is: 686 (A) under 28 years [of age] old; or 687 (B) 28 years [of age] old or older and has been convicted of, has pleaded no contest to, 688 or is currently subject to a plea in abeyance or diversion agreement for a felony or a 689 misdemeanor offense described in Subsection (5)(a); 690 (ix) has a pending charge for an offense described in Subsection (5)(a); or 691 (x) is an applicant described in Subsection (5)(c). 692 (b) The comprehensive review described in Subsection (6)(a) shall include an 693 examination of: 694 (i) the date of the offense or incident; 695 (ii) the nature and seriousness of the offense or incident; 696 (iii) the circumstances under which the offense or incident occurred; 697 (iv) the age of the perpetrator when the offense or incident occurred; 698 (v) whether the offense or incident was an isolated or repeated incident; 699 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable 700 adult, including: 701 (A) actual or threatened, nonaccidental physical, mental, or financial harm; 702 (B) sexual abuse; 703 (C) sexual exploitation; or Enrolled Copy S.B. 127 - 27 - 704 (D) negligent treatment; 705 (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric 706 treatment received, or additional academic or vocational schooling completed; 707 (viii) the applicant's risk of harm to clientele in the program or in the capacity for 708 which the applicant is applying; and 709 (ix) any other pertinent information presented to or publicly available to the committee 710 members. 711 (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the 712 office shall deny an application to an applicant if the office finds that approval would likely 713 create a risk of harm to a child or a vulnerable adult. 714 (d) At the conclusion of the comprehensive review described in Subsection (6)(a), the 715 office may not deny an application to an applicant solely because the applicant was convicted 716 of an offense that occurred 10 or more years before the day on which the applicant submitted 717 the information required under Subsection (2)(a) if: 718 (i) the applicant has not committed another misdemeanor or felony offense after the 719 day on which the conviction occurred; and 720 (ii) the applicant has never been convicted of an offense described in Subsection 721 (14)(c). 722 (e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the 723 office may make rules, consistent with this chapter, to establish procedures for the 724 comprehensive review described in this Subsection (6). 725 (7) Subject to Subsection (10), the office shall approve an application to an applicant 726 who is not denied under Subsection (5), (6), or [(13)] (14). 727 (8) (a) The office may conditionally approve an application of an applicant, for a 728 maximum of 60 days after the day on which the office sends written notice to the applicant 729 under Subsection (12), without requiring that the applicant be directly supervised, if the office: 730 (i) is awaiting the results of the criminal history search of national criminal background S.B. 127 Enrolled Copy - 28 - 731 databases; and 732 (ii) would otherwise approve an application of the applicant under Subsection (7). 733 (b) The office may conditionally approve an application of an applicant, for a 734 maximum of one year after the day on which the office sends written notice to the applicant 735 under Subsection (12), without requiring that the applicant be directly supervised if the office: 736 (i) is awaiting the results of an out-of-state registry for providers other than foster and 737 adoptive parents; and 738 (ii) would otherwise approve an application of the applicant under Subsection (7). 739 (c) Upon receiving the results of the criminal history search of a national criminal 740 background database, the office shall approve or deny the application of the applicant in 741 accordance with Subsections (5) through (7). 742 (9) A licensee or department contractor may not permit an individual to have direct 743 access to a child or a vulnerable adult unless, subject to Subsection (10): 744 (a) the individual is associated with the licensee or department contractor and: 745 (i) the individual's application is approved by the office under this section; 746 (ii) the individual's application is conditionally approved by the office under 747 Subsection (8); or 748 (iii) (A) the individual has submitted the background check information described in 749 Subsection (2) to the office; 750 (B) the office has not determined whether to approve the applicant's application; and 751 (C) the individual is directly supervised by an individual who has a current background 752 screening approval issued by the office under this section and is associated with the licensee or 753 department contractor; 754 (b) (i) the individual is associated with the licensee or department contractor; 755 (ii) the individual has a current background screening approval issued by the office 756 under this section; 757 (iii) one of the following circumstances, that the office has not yet reviewed under Enrolled Copy S.B. 127 - 29 - 758 Subsection (6), applies to the individual: 759 (A) the individual was charged with an offense described in Subsection (5)(a); 760 (B) the individual is listed in the Licensing Information System, described in Section 761 62A-4a-1006; 762 (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation 763 database, described in Section 62A-3-311.1; 764 (D) the individual has a record in the juvenile court of a substantiated finding of severe 765 child abuse or neglect, described in Section 78A-6-323; or 766 (E) the individual has a record of an adjudication in juvenile court for an act that, if 767 committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a) 768 or (6); and 769 (iv) the individual is directly supervised by an individual who: 770 (A) has a current background screening approval issued by the office under this 771 section; and 772 (B) is associated with the licensee or department contractor; 773 (c) the individual: 774 (i) is not associated with the licensee or department contractor; and 775 (ii) is directly supervised by an individual who: 776 (A) has a current background screening approval issued by the office under this 777 section; and 778 (B) is associated with the licensee or department contractor; 779 (d) the individual is the parent or guardian of the child, or the guardian of the 780 vulnerable adult; 781 (e) the individual is approved by the parent or guardian of the child, or the guardian of 782 the vulnerable adult, to have direct access to the child or the vulnerable adult; 783 (f) the individual is only permitted to have direct access to a vulnerable adult who 784 voluntarily invites the individual to visit; or S.B. 127 Enrolled Copy - 30 - 785 (g) the individual only provides incidental care for a foster child on behalf of a foster 786 parent who has used reasonable and prudent judgment to select the individual to provide the 787 incidental care for the foster child. 788 (10) An individual may not have direct access to a child or a vulnerable adult if the 789 individual is prohibited by court order from having that access. 790 (11) Notwithstanding any other provision of this section, an individual for whom the 791 office denies an application may not have direct access to a child or vulnerable adult unless the 792 office approves a subsequent application by the individual. 793 (12) (a) Within 30 days after the day on which the office receives the background 794 check information for an applicant, the office shall give notice of the clearance status to: 795 (i) the applicant, and the licensee or department contractor, of the office's decision 796 regarding the background check and findings; and 797 (ii) the applicant of any convictions and potentially disqualifying charges and 798 adjudications found in the search. 799 (b) With the notice described in Subsection (12)(a), the office shall also give the 800 applicant the details of any comprehensive review conducted under Subsection (6). 801 (c) If the notice under Subsection (12)(a) states that the applicant's application is 802 denied, the notice shall further advise the applicant that the applicant may, under Subsection 803 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to 804 challenge the office's decision. 805 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the 806 office shall make rules, consistent with this chapter: 807 (i) defining procedures for the challenge of the office's background check decision 808 described in Subsection (12)(c); and 809 (ii) expediting the process for renewal of a license under the requirements of this 810 section and other applicable sections. 811 (13) An individual or a department contractor who provides services in an adults only Enrolled Copy S.B. 127 - 31 - 812 substance use disorder program, as defined by rule, is exempt from this section. This 813 exemption does not extend to a program director or a member, as defined by Section 814 62A-2-108, of the program. 815 (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements 816 of this section, if the background check of an applicant is being conducted for the purpose of 817 giving clearance status to an applicant seeking a position in a congregate care [facility] 818 program, an applicant for a one-time adoption, an applicant seeking to provide a prospective 819 foster home, or an applicant seeking to provide a prospective adoptive home, the office shall: 820 (i) check the child abuse and neglect registry in each state where each applicant resided 821 in the five years immediately preceding the day on which the applicant applied to be a foster 822 parent or adoptive parent, to determine whether the prospective foster parent or prospective 823 adoptive parent is listed in the registry as having a substantiated or supported finding of child 824 abuse or neglect; and 825 (ii) check the child abuse and neglect registry in each state where each adult living in 826 the home of the applicant described in Subsection (14)(a)(i) resided in the five years 827 immediately preceding the day on which the applicant applied to be a foster parent or adoptive 828 parent, to determine whether the adult is listed in the registry as having a substantiated or 829 supported finding of child abuse or neglect. 830 (b) The requirements described in Subsection (14)(a) do not apply to the extent that: 831 (i) federal law or rule permits otherwise; or 832 (ii) the requirements would prohibit the Division of Child and Family Services or a 833 court from placing a child with: 834 (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or 835 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307, 836 or 78A-6-307.5, pending completion of the background check described in Subsection (5). 837 (c) Notwithstanding Subsections (5) through (9), the office shall deny a clearance to an 838 applicant seeking a position in a congregate care [facility] program, an applicant for a one-time S.B. 127 Enrolled Copy - 32 - 839 adoption, an applicant to become a prospective foster parent, or an applicant to become a 840 prospective adoptive parent if the applicant has been convicted of: 841 (i) a felony involving conduct that constitutes any of the following: 842 (A) child abuse, as described in Section 76-5-109; 843 (B) commission of domestic violence in the presence of a child, as described in Section 844 76-5-109.1; 845 (C) abuse or neglect of a child with a disability, as described in Section 76-5-110; 846 (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5; 847 (E) aggravated murder, as described in Section 76-5-202; 848 (F) murder, as described in Section 76-5-203; 849 (G) manslaughter, as described in Section 76-5-205; 850 (H) child abuse homicide, as described in Section 76-5-208; 851 (I) homicide by assault, as described in Section 76-5-209; 852 (J) kidnapping, as described in Section 76-5-301; 853 (K) child kidnapping, as described in Section 76-5-301.1; 854 (L) aggravated kidnapping, as described in Section 76-5-302; 855 (M) human trafficking of a child, as described in Section 76-5-308.5; 856 (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses; 857 (O) sexual exploitation of a minor, as described in Section 76-5b-201; 858 (P) aggravated arson, as described in Section 76-6-103; 859 (Q) aggravated burglary, as described in Section 76-6-203; 860 (R) aggravated robbery, as described in Section 76-6-302; or 861 (S) domestic violence, as described in Section 77-36-1; or 862 (ii) an offense committed outside the state that, if committed in the state, would 863 constitute a violation of an offense described in Subsection (14)(c)(i). 864 (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or 865 license renewal to a prospective foster parent or a prospective adoptive parent if, within the five Enrolled Copy S.B. 127 - 33 - 866 years immediately preceding the day on which the individual's application or license would 867 otherwise be approved, the applicant was convicted of a felony involving conduct that 868 constitutes a violation of any of the following: 869 (i) aggravated assault, as described in Section 76-5-103; 870 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5; 871 (iii) mayhem, as described in Section 76-5-105; 872 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act; 873 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act; 874 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances 875 Act; 876 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance 877 Precursor Act; or 878 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act. 879 (e) In addition to the circumstances described in Subsection (6)(a), the office shall 880 conduct the comprehensive review of an applicant's background check pursuant to this section 881 if the registry check described in Subsection (14)(a) indicates that the individual is listed in a 882 child abuse and neglect registry of another state as having a substantiated or supported finding 883 of a severe type of child abuse or neglect as defined in Section 62A-4a-1002. 884 Section 5. Section 62A-2-123 is enacted to read: 885 62A-2-123. Congregate care program regulation. 886 (1) A congregate care program may not use a cruel, severe, unusual, or unnecessary 887 practice on a child, including: 888 (a) a strip search unless the congregate care program determines and documents that a 889 strip search is necessary to protect an individual's health or safety; 890 (b) a body cavity search unless the congregate care program determines and documents 891 that a body cavity search is necessary to protect an individual's health or safety; 892 (c) inducing pain to obtain compliance; S.B. 127 Enrolled Copy - 34 - 893 (d) hyperextending joints; 894 (e) peer restraints; 895 (f) discipline or punishment that is intended to frighten or humiliate; 896 (g) requiring or forcing the child to take an uncomfortable position, including squatting 897 or bending; 898 (h) for the purpose of punishing or humiliating, requiring or forcing the child to repeat 899 physical movements or physical exercises such as running laps or performing push-ups; 900 (i) spanking, hitting, shaking, or otherwise engaging in aggressive physical contact; 901 (j) denying an essential program service; 902 (k) depriving the child of a meal, water, rest, or opportunity for toileting; 903 (l) denying shelter, clothing, or bedding; 904 (m) withholding personal interaction, emotional response, or stimulation; 905 (n) prohibiting the child from entering the residence; 906 (o) abuse as defined in Section 78A-6-105; and 907 (p) neglect as defined in Section 78A-6-105. 908 (2) Before a congregate care program may use a restraint or seclusion, the congregate 909 care program shall: 910 (a) develop and implement written policies and procedures that: 911 (i) describe the circumstances under which a staff member may use a restraint or 912 seclusion; 913 (ii) describe which staff members are authorized to use a restraint or seclusion; 914 (iii) describe procedures for monitoring a child that is restrained or in seclusion; 915 (iv) describe time limitations on the use of a restraint or seclusion; 916 (v) require immediate and continuous review of the decision to use a restraint or 917 seclusion; 918 (vi) require documenting the use of a restraint or seclusion; 919 (vii) describe record keeping requirements for records related to the use of a restraint or Enrolled Copy S.B. 127 - 35 - 920 seclusion; 921 (viii) to the extent practicable, require debriefing the following individuals if debriefing 922 would not interfere with an ongoing investigation, violate any law or regulation, or conflict 923 with a child's treatment plan: 924 (A) each witness to the event; 925 (B) each staff member involved; and 926 (C) the child who was restrained or in seclusion. 927 (ix) include a procedure for complying with Subsection (5); and 928 (x) provide an administrative review process and required follow up actions after a 929 child is restrained or put in seclusion; and 930 (b) consult with the office to ensure that the congregate care program's written policies 931 and procedures align with industry standards and applicable law. 932 (3) A congregate care program: 933 (a) may use a passive physical restraint only if the passive physical restraint is 934 supported by a nationally or regionally recognized curriculum focused on non-violent 935 interventions and de-escalation techniques; 936 (b) may not use a chemical or mechanical restraint unless the office has authorized the 937 congregate care program to use a chemical or mechanical restraint; 938 (c) shall ensure that a staff member that uses a restraint on a child is: 939 (i) properly trained to use the restraint; and 940 (ii) familiar with the child and if the child has a treatment plan, the child's treatment 941 plan; and 942 (d) shall train each staff member on how to intervene if another staff member fails to 943 follow correct procedures when using a restraint. 944 (4) (a) A congregate care program: 945 (i) may use seclusion if: 946 (A) the purpose for the seclusion is to ensure the immediate safety of the child or S.B. 127 Enrolled Copy - 36 - 947 others; and 948 (B) no less restrictive intervention is likely to ensure the safety of the child or others; 949 and 950 (ii) may not use seclusion: 951 (A) for coercion, retaliation, or humiliation; or 952 (B) due to inadequate staffing or for the staff's convenience. 953 (b) While a child is in seclusion, a staff member who is familiar to the child shall 954 actively supervise the child for the duration of the seclusion. 955 (5) Subject to the office's review and approval, a congregate care program shall 956 develop: 957 (a) suicide prevention policies and procedures that describe: 958 (i) how the congregate care program will respond in the event a child exhibits 959 self-injurious, self-harm, or suicidal behavior; 960 (ii) warning signs of suicide; 961 (iii) emergency protocol and contacts; 962 (iv) training requirements for staff, including suicide prevention training; 963 (v) procedures for implementing additional supervision precautions and for removing 964 any additional supervision precautions; 965 (vi) suicide risk assessment procedures; 966 (vii) documentation requirements for a child's suicide ideation and self-harm; 967 (viii) special observation precautions for a child exhibiting warning signs of suicide; 968 (ix) communication procedures to ensure all staff are aware of a child who exhibits 969 warning signs of suicide; 970 (x) a process for tracking suicide behavioral patterns; and 971 (xi) a post-intervention plan with identified resources; and 972 (b) based on state law and industry best practices, policies and procedures for 973 managing a child's behavior during the child's participation in the congregate care program. Enrolled Copy S.B. 127 - 37 - 974 (6) A congregate care program: 975 (a) when not otherwise prohibited by law, shall facilitate weekly confidential 976 communication between a child and the child's parents, guardian, foster parents, and siblings, 977 as applicable; 978 (b) shall ensure that the communication described in Subsection (6)(a) complies with 979 the child's treatment plan, if any; and 980 (c) may not use family contact as an incentive for proper behavior or withhold family 981 contact as a punishment. 982 Section 6. Section 62A-2-124 is enacted to read: 983 62A-2-124. Human services program non-discrimination. 984 A human services program: 985 (1) shall perform an individualized assessment when classifying and placing an 986 individual in programs and living environments; and 987 (2) subject to the office's review and approval, shall create policies and procedures that 988 include: 989 (a) a description of what constitutes sex and gender based abuse, discrimination, and 990 harassment; 991 (b) procedures for preventing and reporting abuse, discrimination, and harassment; and 992 (c) procedures for teaching effective and professional communication with individuals 993 of all sexual orientations and genders.