Utah Code § 26B-2-120 — Utah Code / Title 26B / Chapter 26B-2 / § 26B-2-120
§ 26B-2-120. Background check -- Direct access to children or vulnerable adults.
Status: in_force

1/1/2027 (1) As used in this section: (a) (i) "Applicant" means an individual who is associated with a certification, contract, or licensee with the department under this part and has direct access, including: (A) an adoptive parent or prospective adoptive parent, including an applicant for an adoption in accordance with Section 78B-6-128; (B) a foster parent or prospective foster parent; (C) an individual who provides respite care to a foster parent or an adoptive parent on more than one occasion; (D) an individual who transports a child for a youth transportation company; (E) an individual who provides certified peer support, as defined in Section 26B-5-610; (F) an individual who provides peer supports, has a disability or a family member with a disability, or is in recovery from a mental illness or a substance use disorder; (G) an individual who has lived experience with the services provided by the department, and uses that lived experience to provide support, guidance, or services to promote resiliency and recovery; (H) an individual who is identified as a mental health professional, licensed under Title 58, Chapter 60, Mental Health Professional Practice Act, and engaged in the practice of mental health therapy, as defined in Section 58-60-102; (I) an individual, other than the child or vulnerable adult receiving the service, who is 12 years old or older and resides in a home, that is licensed or certified by the division; (J) an individual who is 12 years old or older and is associated with a certification, contract, or licensee with the department under this part and has or will likely have direct access; (K) a foster home licensee that submits an application for an annual background screening as required by Subsection 26B-2-105(4)(d)(iii); or (L) a short-term relief care provider. (ii) "Applicant" does not include: (A) an individual who is in the custody of the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services; (B) an individual who applies for employment with, or is employed by, the Department of Health and Human Services; (C) a parent of a person receiving services from the Division of Services for People with Disabilities, if the parent provides direct care to and resides with the person, including if the parent provides direct care to and resides with the person in accordance with a court order; or (D) an individual or a department contractor who provides services in an adults only substance use disorder program, as defined by rule adopted by the Department of Health and Human Services in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and who is not a program director or a member, as defined by Section 26B-2-105, of the program. (b) "Application" means a background check application to the office. (c) "Bureau" means the Bureau of Criminal Identification within the Department of Public Safety, created in Section 53-10-201. (d) "Criminal finding" means a record of: (i) an arrest for a criminal offense; (ii) a warrant for a criminal arrest; (iii) charges for a criminal offense; or (iv) a criminal conviction. (e) "Direct access" means that an individual has, or likely will have: (i) contact with or access to a child or vulnerable adult by which the individual will have the opportunity for personal communication or touch with the child or vulnerable adult; or (ii) an opportunity to view medical, financial, or other confidential personal identifying information of the child, the child's parent or legal guardian, or the vulnerable adult. (f) "Direct access qualified" means that: (i) the applicant has an eligible determination by the office within the license and renewal time period; and (ii) no more than 180 days have passed since the date on which the applicant's association with a certification, contract, or licensee with the department expires. (g) "Incidental care" means occasional care, not in excess of five hours per week and never overnight, for a foster child. (h) "Licensee" means an individual or a human services program licensed by the division. (i) "Non-criminal finding" means a record maintained in: (i) the Division of Child and Family Services' Management Information System described in Section 80-2-1001; (ii) the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (iv) juvenile court arrest, adjudication, and disposition records; (v) the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry; or (vi) a state child abuse or neglect registry. (j) "Office" means the Office of Background Processing within the department. (k) "Personal identifying information" means: (i) current name, former names, nicknames, and aliases; (ii) date of birth; (iii) physical address and email address; (iv) telephone number; (v) driver license or other government-issued identification; (vi) social security number; (vii) only for applicants who are 18 years old or older, fingerprints, in a form specified by the office; and (viii) other information specified by the office by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act. (2) Except as provided in Subsection (12), an applicant or a representative shall submit the following to the office: (a) personal identifying information; (b) a fee established by the office under Section 63J-1-504; (c) a disclosure form, specified by the office, for consent for: (i) an initial background check upon association with a certification, contract, or licensee with the department; (ii) ongoing monitoring of fingerprints and registries until no longer associated with a certification, contract, or licensee with the department for 180 days; (iii) a background check when the office determines that reasonable cause exists; and (iv) retention of personal identifying information, including fingerprints, for monitoring and notification as described in Subsections (3)(c) and (4); (d) if an applicant resided outside of the United States and its territories during the five years immediately before the day on which the information described in Subsections (2)(a) through (c) is submitted to the office, documentation establishing whether the applicant was convicted of a crime during the time that the applicant resided outside of the United States or its territories; and (e) an application showing an applicant's association with a certification, contract, or a licensee with the department, for the purpose of the office tracking the direct access qualified status of the applicant, which expires 180 days after the date on which the applicant is no longer associated with a certification, contract, or a licensee with the department. (3) The office: (a) shall perform the following duties as part of a background check of an applicant before the office grants or denies direct access qualified status to an applicant: (i) check state and regional criminal background databases for the applicant's criminal history by: (A) submitting personal identifying information to the bureau for a search; or (B) using the applicant's personal identifying information to search state and regional criminal background databases as authorized under Section 53-10-108; (ii) submit the applicant's personal identifying information and fingerprints to the bureau for a criminal history search of applicable national criminal background databases; (iii) search the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iv) search the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry for an applicant 18 years old or older; (v) search the Division of Child and Family Services' Management Information System in Section 80-2-1001, if the applicant is: (A) a prospective foster or adoptive parent; (B) an employee of a congregate care program; or (C) an adult who lives in a foster home. (vi) search the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (vii) search the juvenile court records for substantiated findings of severe child abuse or neglect described in Section 80-3-404 or 80-3-504; and (viii) search the juvenile court arrest, adjudication, and disposition records, as provided under Section 78A-6-209; (b) may conduct all or portions of a background check in connection with determining whether an applicant is direct access qualified, as provided by rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act: (i) for an annual renewal; or (ii) when the office determines that reasonable cause exists; (c) may submit an applicant's personal identifying information, including fingerprints, to the bureau for checking, retaining, and monitoring of state and national criminal background databases and for notifying the office of new criminal activity associated with the applicant; (d) shall track the status of an applicant under this section to ensure that the applicant is not required to duplicate the submission of the applicant's fingerprints if the applicant is associated with more than one certification, contract, or licensee with the department; (e) shall notify the bureau when a direct access qualified individual has not been associated with a certification, contract, or licensee with the department for a period of 180 days; (f) shall adopt measures to strictly limit access to personal identifying information solely to the individuals responsible for processing and entering the applications for background checks and to protect the security of the personal identifying information the office reviews under this Subsection (3); (g) as necessary to comply with the federal requirement to check a state's child abuse and neglect registry regarding any applicant working in a congregate care program, shall: (i) search the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; and (ii) require the child abuse and neglect registry be checked in each state where an applicant resided at any time during the five years immediately before the day on which the application is submitted to the office; and (h) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement the provisions of this Subsection (3) relating to background checks. (4) (a) With the personal identifying information the office submits to the bureau under Subsection (3), the bureau shall check against state and regional criminal background databases for the applicant's criminal history. (b) With the personal identifying information and fingerprints the office submits to the bureau under Subsection (3), the bureau shall check against national criminal background databases for the applicant's criminal history. (c) Upon direction from the office, and with the personal identifying information and fingerprints the office submits to the bureau under Subsection (3)(c), the bureau shall: (i) maintain a separate file of the fingerprints for search by future submissions to the local and regional criminal records databases, including latent prints; and (ii) monitor state and regional criminal background databases and identify criminal activity associated with the applicant. (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of Investigation Next Generation Identification System, to be retained in the Federal Bureau of Investigation Next Generation Identification System for the purpose of: (i) being searched by future submissions to the national criminal records databases, including the Federal Bureau of Investigation Next Generation Identification System and latent prints; and (ii) monitoring national criminal background databases and identifying criminal activity associated with the applicant. (e) The bureau shall notify and release to the office all information of criminal activity associated with the applicant. (f) Upon notice that an individual who has direct access qualified status will no longer be associated with a certification, contract, or licensee with the department, the bureau shall: (i) discard and destroy any retained fingerprints; and (ii) notify the Federal Bureau of Investigation when the license has expired or an individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of Investigation Next Generation Identification System. (5) (a) Except as provided in Subsection (5)(b), the office shall deny direct access qualified status to an applicant who, within three years from the date on which the office conducts the background check, was convicted of: (i) a felony or misdemeanor involving conduct that constitutes any of the following: (A) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to animals, or bestiality; (B) a violation of any pornography law, or an offense involving exploitation of a minor as described in Section 76-5b-201, aggravated sexual exploitation of a minor as described in Section 76-5b-201.2, possession of apparent child sexual abuse material as described in Section 76-5b-207, distribution of apparent child sexual abuse material as described in Section 76-5b-208, or unlawful activity regarding obscene material depicting the sexual abuse of a minor as described in Section 76-5b-209; (C) sexual solicitation or prostitution; (D) a violent offense committed in the presence of a child, as described in Section 76-3-203.10; (E) an offense included in Title 76, Chapter 5, Part 1, 2, 3, 4, or 7; (F) an offense included in Title 76, Chapter 5b, Sexual Exploitation Act; (G) an offense included in Title 76, Chapter 7, Offenses Against the Family; (H) an offense included in Title 76, Chapter 12, Part 3, Privacy Offenses; (I) an offense included in Title 76, Chapter 15, Part 3, Weapons of Mass Destruction; (J) an offense included in Title 78B, Chapter 7, Protective Orders and Stalking Injunctions; (K) aggravated arson, as described in Section 76-6-103; (L) aggravated burglary, as described in Section 76-6-203; (M) aggravated exploitation of prostitution, as described in Section 76-5d-208; (N) aggravated robbery, as described in Section 76-6-302; (O) endangering persons in a human services program, as described in Section 26B-2-113; (P) failure to report, as described in Section 80-2-609; (Q) identity fraud crime, as described in Section 76-6-1102; (R) riot, as described in Section 76-9-101; or (S) threatening with or using a dangerous weapon in a fight or quarrel, as described in Section 76-11-207; or (ii) a felony or misdemeanor offense committed outside of the state that, if committed in the state, would constitute a violation of an offense described in Subsection (5)(a)(i). (b) (i) Subsection (5)(a) does not apply to an applicant who is seeking a position as a peer support provider or a mental health professional, if the applicant provides services in a program that serves only adults with a primary mental health diagnosis, with or without a co-occurring substance use disorder. (ii) The office shall conduct a comprehensive review of an applicant described in Subsection (5)(b)(i) in accordance with Subsection (7). (c) Subject to Subsection (5)(d), the office shall deny direct access qualified status to an applicant who: (i) a court order prohibits from having direct access to a child or vulnerable adult; or (ii) is an applicant for a congregate care program and: (A) is subject to an open investigation for a non-criminal finding; or (B) has a supported non-criminal finding, excluding a supported finding for dependency, as defined in Section 80-1-102, within three years from the date on which the office conducts the background check. (d) (i) Subsection (5)(c) does not apply retrospectively for congregate care program employees who have an approved background screening on or before July 1, 2025; or (ii) notwithstanding Subsection (5)(c)(ii)(A), the division may grant temporary direct access qualified status to an applicant subject to a condition that the applicant is directly supervised at all times. (6) The office shall conduct a comprehensive review of an applicant's background check if the applicant: (a) has a felony or class A misdemeanor conviction that is more than three years from the date on which the office conducts the background check, for an offense described in Subsection (5)(a); (b) has a felony charge or conviction that is no more than 10 years from the date on which the office conducts the background check for an offense not described in Subsection (5)(a); (c) has a felony charge or conviction that is more than 10 years from the date on which the office conducts the background check, for an offense not described in Subsection (5)(a), with criminal or non-criminal findings after the date of the felony charge or conviction; (d) has a class B misdemeanor or class C misdemeanor conviction that is more than three years and no more than 10 years from the date on which the office conducts the background check for an offense described in Subsection (5)(a); (e) has a class B misdemeanor or class C misdemeanor conviction that is more than 10 years from the date on which the office conducts the background check, for an offense described in Subsection (5)(a), with criminal or non-criminal findings after the date of conviction; (f) has a misdemeanor charge or conviction that is no more than three years from the date on which the office conducts the background check for an offense not described in Subsection (5)(a); (g) has a misdemeanor charge or conviction that is more than three years from the date on which the office conducts the background check, for an offense not described in Subsection (5)(a), with criminal or non-criminal findings after the date of charge or conviction; (h) is currently subject to a plea in abeyance or diversion agreement for an offense described in Subsection (5)(a); (i) appears on the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry; (j) has a record of an adjudication in juvenile court for an act that, if committed by an adult, would be a felony or misdemeanor, if the applicant is: (i) under 28 years old; or (ii) 28 years old or older and has been convicted of, has pleaded no contest to, or is currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor offense described in Subsection (5)(a); (k) has a pending charge for an offense described in Subsection (5)(a); (l) has a supported finding that occurred no more than 15 years from the date on which the office conducts the background check in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (m) has a supported finding that occurred more than 15 years from the date on which the office conducts the background check in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002, with criminal or non-criminal findings after the date of the listing; (n) has a listing that occurred no more than 15 years from the date on which the office conducts the background check in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (o) has a listing that occurred more than 15 years from the date on which the office conducts the background check in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210, with criminal or non-criminal findings after the date of the listing; (p) has a substantiated finding that occurred no more than 15 years from the date on which the office conducts the background check of severe child abuse or neglect under Section 80-3-404 or 80-3-504; or (q) has a substantiated finding that occurred more than 15 years from the date on which the office conducts the background check of severe child abuse or neglect under Section 80-3-404 or 80-3-504, with criminal or non-criminal findings after the date of the listing. (7) (a) The comprehensive review shall include an examination of: (i) the date of the offense or incident; (ii) the nature and seriousness of the offense or incident; (iii) the circumstances under which the offense or incident occurred; (iv) the age of the perpetrator when the offense or incident occurred; (v) whether the offense or incident was an isolated or repeated incident; (vi) whether the offense or incident directly relates to abuse of a child or vulnerable adult, including: (A) actual or threatened, nonaccidental physical, mental, or financial harm; (B) sexual abuse; (C) sexual exploitation; or (D) negligent treatment; (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric treatment received, or additional academic or vocational schooling completed; (viii) the applicant's risk of harm to clientele in the program or in the capacity for which the applicant is applying; and (ix) if the background check of an applicant is being conducted for the purpose of giving direct access qualified status to an applicant seeking a position in a congregate care program or to become a prospective foster or adoptive parent, any listing in the Division of Child and Family Services' Management Information System described in Section 80-2-1001. (b) At the conclusion of the comprehensive review, the office shall deny direct access qualified status to an applicant if the office finds the approval would likely create a risk of harm to a child or vulnerable adult. (8) The office shall grant direct access qualified status to an applicant who is not denied under this section. (9) (a) The office may conditionally grant direct access qualified status to an applicant, for a maximum of 60 days after the day on which the office sends written notice, without requiring that the applicant be directly supervised, if the office: (i) is awaiting the results of the criminal history search of national criminal background databases; and (ii) would otherwise grant direct access qualified status to the applicant under this section. (b) The office may conditionally grant direct access qualified status to an applicant, for a maximum of one year after the day on which the office sends written notice, without requiring that the applicant be directly supervised if the office: (i) is awaiting the results of an out-of-state registry for providers other than foster and adoptive parents; and (ii) would otherwise grant direct access qualified status to the applicant under this section. (c) Upon receiving the results of the criminal history search of a national criminal background database, the office shall grant or deny direct access qualified status to the applicant in accordance with this section. (10) (a) Each time an applicant is associated with a licensee, the department shall review the current status of the applicant's background check to ensure the applicant is still eligible for direct access qualified status in accordance with this section. (b) A licensee may not permit an individual to have direct access to a child or a vulnerable adult without being directly supervised unless: (i) the individual is the parent or guardian of the child, or the guardian of the vulnerable adult; (ii) the individual is approved by the parent or guardian of the child, or the guardian of the vulnerable adult, to have direct access to the child or the vulnerable adult; (iii) the individual is only permitted to have direct access to a vulnerable adult who voluntarily invites the individual to visit; or (iv) the individual only provides incidental care for a foster child on behalf of a foster parent who has used reasonable and prudent judgment to select the individual to provide the incidental care for the foster child. (c) Notwithstanding any other provision of this section, an applicant who is denied direct access qualified status shall not have direct access to a child or vulnerable adult unless the office grants direct access qualified status to the applicant through a subsequent application in accordance with this section. (11) If the office denies direct access qualified status to an applicant, the applicant may request a hearing in the department's Office of Administrative Hearings to challenge the office's decision. (12) (a) This Subsection (12) applies to an applicant associated with a certification, contract, or licensee serving adults only. (b) A program director or a member, as defined in Section 26B-2-105, of the licensee shall comply with this section. (c) The office shall conduct a comprehensive review for an applicant if: (i) the applicant is seeking a position: (A) as a peer support provider; (B) as a mental health professional; or (C) in a program that serves only adults with a primary mental health diagnosis, with or without a co-occurring substance use disorder; and (ii) within three years from the date on which the office conducts the background check, the applicant has a felony or misdemeanor charge or conviction or a non-criminal finding. (13) (a) This Subsection (13) applies to an applicant seeking a position in a congregate care program, an applicant seeking to provide a prospective foster home, an applicant seeking to provide a prospective adoptive home, and each adult living in the home of the prospective foster or prospective adoptive home. (b) As federally required, the office shall: (i) check the child abuse and neglect registry in each state where each applicant resided in the five years immediately before the day on which the applicant applied to be a foster or adoptive parent, to determine whether the prospective foster or adoptive parent is listed in the registry as having a substantiated or supported finding of child abuse or neglect; and (ii) except for applicants seeking a position in a congregate care program, check the child abuse and neglect registry in each state where each adult living in the home of the prospective foster or adoptive home resided in the five years immediately before the day on which the applicant applied to be a foster or adoptive parent, to determine whether the adult is listed in the registry as having a substantiated or supported finding of child abuse or neglect. (c) The requirements described in Subsection (13)(b) do not apply to the extent that: (i) federal law or rule permits otherwise; or (ii) the requirements would prohibit the Division of Child and Family Services or a court from placing a child with: (A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or (B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302, or 80-3-303, pending completion of the background check described in Subsections (5), (6), and (7). (d) Notwithstanding Subsections (5) through (10), the office shall deny direct access qualified status if the applicant has been convicted of: (i) a felony involving conduct that constitutes any of the following: (A) child abuse, as described in Section 76-5-109; (B) aggravated child abuse, as described in Section 76-5-109.2; (C) child abandonment, as described in Section 76-5-109.3; (D) child torture, as described in Section 76-5-109.4; (E) commission of domestic violence in the presence of a child, as described in Section 76-5-114; (F) abuse or neglect of a child with a disability, as described in Section 76-5-110; (G) intentional aggravated abuse of a vulnerable adult, as described in Section 76-5-111; (H) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5; (I) aggravated murder, as described in Section 76-5-202; (J) murder, as described in Section 76-5-203; (K) manslaughter, as described in Section 76-5-205; (L) child abuse homicide, as described in Section 76-5-208; (M) homicide by assault, as described in Section 76-5-209; (N) kidnapping, as described in Section 76-5-301; (O) child kidnapping, as described in Section 76-5-301.1; (P) aggravated kidnapping, as described in Section 76-5-302; (Q) human trafficking of a child for labor, as described in Section 76-5-308.5; (R) human trafficking of a child for commercial sexual exploitation, as described in Section 76-5-308.6; (S) patronizing a child victim of human labor trafficking, as described in Section 76-5-314; (T) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses; (U) sexual exploitation of a minor, as described in Section 76-5b-201; (V) aggravated exploitation of a minor, as described in Section 76-5b-201.1; (W) possession of apparent child sexual abuse material, as described in Section 76-5b-207; (X) distribution of apparent child sexual abuse material, as described in Section 76-5b-208; (Y) unlawful activity regarding obscene material depicting the sexual abuse of a minor, as described in Section 76-5b-209; (Z) aggravated arson, as described in Section 76-6-103; (AA) aggravated burglary, as described in Section 76-6-203; (BB) aggravated robbery, as described in Section 76-6-302; (CC) incest, as described in Section 76-7-102; or (DD) domestic violence, as described in Section 77-36-1; or (ii) an offense committed outside the state that, if committed in the state, would constitute a violation of an offense described in Subsection (13)(d)(i). (e) Notwithstanding Subsections (5) through (10), the office shall deny direct access qualified status to an applicant if, within the five years from the date on which the office conducts the background check, the applicant was convicted of a felony involving conduct that constitutes a violation of any of the following: (i) aggravated assault, as described in Section 76-5-103; (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5; (iii) mayhem, as described in Section 76-5-105; (iv) an offense described in Title 58, Chapter 37, Controlled Substances, or Title 76, Chapter 18, Part 2, Offenses Concerning Controlled Substances; (v) an offense described in Title 76, Chapter 18, Part 3, Offenses Concerning Drug Paraphernalia; (vi) an offense described in Title 76, Chapter 18, Part 4, Offenses Concerning Imitation Controlled Substances; (vii) an offense described in Title 58, Chapter 37c, Controlled Substance Precursors; (viii) an offense described in Title 76, Chapter 18, Part 5, Clandestine Drug Labs; or (ix) an offense described in a statute previously in effect in this state that is the same or substantially similar to an offense described in Subsections (13)(e)(i) through (viii). (f) In addition to the circumstances described in Subsection (6), the office shall conduct a comprehensive review of an applicant's background check under this section if the applicant: (i) has an offense described in Subsection (5)(a); (ii) has an infraction conviction entered on a date that is no more than three years before the date on which the office conducts the background check; (iii) has a listing in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iv) has a listing in the Division of Aging and Adult Services' vulnerable adult, neglect, or exploitation database described in Section 26B-2-210; (v) has a substantiated finding of severe child abuse or neglect under Section 80-3-404 or 80-3-504; or (vi) has a listing on the registry check described in Subsection (13)(b) as having a substantiated or supported finding of a severe type of child abuse or neglect, as defined in Section 80-1-102. (14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office may make rules, consistent with this part, to: (a) establish procedures for, and information to be examined in, the comprehensive review described in Subsections (6), (7), and (13); and (b) determine whether to consider an offense or incident that occurred while an individual was in the custody of the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services for purposes of granting or denying direct access qualified status to an applicant.1/1/2027 (1) As used in this section: (a) (i) "Applicant" means an individual who is associated with a certification, contract, or licensee with the department under this part and has direct access, including: (A) an adoptive parent or prospective adoptive parent, including an applicant for an adoption in accordance with Section 78B-6-128; (B) a foster parent or prospective foster parent; (C) an individual who provides respite care to a foster parent or an adoptive parent on more than one occasion; (D) an individual who transports a child for a youth transportation company; (E) an individual who provides certified peer support, as defined in Section 26B-5-610; (F) an individual who provides peer supports, has a disability or a family member with a disability, or is in recovery from a mental illness or a substance use disorder; (G) an individual who has lived experience with the services provided by the department, and uses that lived experience to provide support, guidance, or services to promote resiliency and recovery; (H) an individual who is identified as a mental health professional, licensed under Title 58, Chapter 60, Mental Health Professional Practice Act, and engaged in the practice of mental health therapy, as defined in Section 58-60-102; (I) an individual, other than the child or vulnerable adult receiving the service, who is 12 years old or older and resides in a home, that is licensed or certified by the division; (J) an individual who is 12 years old or older and is associated with a certification, contract, or licensee with the department under this part and has or will likely have direct access; (K) a foster home licensee that submits an application for an annual background screening as required by Subsection 26B-2-105(4)(d)(iii); or (L) a short-term relief care provider. (ii) "Applicant" does not include: (A) an individual who is in the custody of the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services; (B) an individual who applies for employment with, or is employed by, the Department of Health and Human Services; (C) a parent of a person receiving services from the Division of Services for People with Disabilities, if the parent provides direct care to and resides with the person, including if the parent provides direct care to and resides with the person in accordance with a court order; or (D) an individual or a department contractor who provides services in an adults only substance use disorder program, as defined by rule adopted by the Department of Health and Human Services in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and who is not a program director or a member, as defined by Section 26B-2-105, of the program. (b) "Application" means a background check application to the office. (c) "Bureau" means the Bureau of Criminal Identification within the Department of Public Safety, created in Section 53-10-201. (d) "Criminal finding" means a record of: (i) an arrest for a criminal offense; (ii) a warrant for a criminal arrest; (iii) charges for a criminal offense; or (iv) a criminal conviction. (e) "Direct access" means that an individual has, or likely will have: (i) contact with or access to a child or vulnerable adult by which the individual will have the opportunity for personal communication or touch with the child or vulnerable adult; or (ii) an opportunity to view medical, financial, or other confidential personal identifying information of the child, the child's parent or legal guardian, or the vulnerable adult. (f) "Direct access qualified" means that: (i) the applicant has an eligible determination by the office within the license and renewal time period; and (ii) no more than 180 days have passed since the date on which the applicant's association with a certification, contract, or licensee with the department expires. (g) "Incidental care" means occasional care, not in excess of five hours per week and never overnight, for a foster child. (h) "Licensee" means an individual or a human services program licensed by the division. (i) "Non-criminal finding" means a record maintained in: (i) the Division of Child and Family Services' Management Information System described in Section 80-2-1001; (ii) the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iii) the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (iv) juvenile court arrest, adjudication, and disposition records; (v) the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry; or (vi) a state child abuse or neglect registry. (j) "Office" means the Office of Background Processing within the department. (k) "Personal identifying information" means: (i) current name, former names, nicknames, and aliases; (ii) date of birth; (iii) physical address and email address; (iv) telephone number; (v) driver license or other government-issued identification; (vi) social security number; (vii) only for applicants who are 18 years old or older, fingerprints, in a form specified by the office; and (viii) other information specified by the office by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act. (2) Except as provided in Subsection (12), an applicant or a representative shall submit the following to the office: (a) personal identifying information; (b) a fee established by the office under Section 63J-1-504; (c) a disclosure form, specified by the office, for consent for: (i) an initial background check upon association with a certification, contract, or licensee with the department; (ii) ongoing monitoring of fingerprints and registries until no longer associated with a certification, contract, or licensee with the department for 180 days; (iii) a background check when the office determines that reasonable cause exists; and (iv) retention of personal identifying information, including fingerprints, for monitoring and notification as described in Subsections (3)(c) and (4); (d) if an applicant resided outside of the United States and its territories during the five years immediately before the day on which the information described in Subsections (2)(a) through (c) is submitted to the office, documentation establishing whether the applicant was convicted of a crime during the time that the applicant resided outside of the United States or its territories; and (e) an application showing an applicant's association with a certification, contract, or a licensee with the department, for the purpose of the office tracking the direct access qualified status of the applicant, which expires 180 days after the date on which the applicant is no longer associated with a certification, contract, or a licensee with the department. (3) The office: (a) shall perform the following duties as part of a background check of an applicant before the office grants or denies direct access qualified status to an applicant: (i) check state and regional criminal background databases for the applicant's criminal history by: (A) submitting personal identifying information to the bureau for a search; or (B) using the applicant's personal identifying information to search state and regional criminal background databases as authorized under Section 53-10-108; (ii) submit the applicant's personal identifying information and fingerprints to the bureau for a criminal history search of applicable national criminal background databases; (iii) search the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iv) search the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry for an applicant 18 years old or older; (v) search the Division of Child and Family Services' Management Information System in Section 80-2-1001, if the applicant is: (A) a prospective foster or adoptive parent; (B) an employee of a congregate care program; or (C) an adult who lives in a foster home. (vi) search the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (vii) search the juvenile court records for substantiated findings of severe child abuse or neglect described in Section 80-3-404 or 80-3-504; and (viii) search the juvenile court arrest, adjudication, and disposition records, as provided under Section 78A-6-209; (b) may conduct all or portions of a background check in connection with determining whether an applicant is direct access qualified, as provided by rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act: (i) for an annual renewal; or (ii) when the office determines that reasonable cause exists; (c) may submit an applicant's personal identifying information, including fingerprints, to the bureau for checking, retaining, and monitoring of state and national criminal background databases and for notifying the office of new criminal activity associated with the applicant; (d) shall track the status of an applicant under this section to ensure that the applicant is not required to duplicate the submission of the applicant's fingerprints if the applicant is associated with more than one certification, contract, or licensee with the department; (e) shall notify the bureau when a direct access qualified individual has not been associated with a certification, contract, or licensee with the department for a period of 180 days; (f) shall adopt measures to strictly limit access to personal identifying information solely to the individuals responsible for processing and entering the applications for background checks and to protect the security of the personal identifying information the office reviews under this Subsection (3); (g) as necessary to comply with the federal requirement to check a state's child abuse and neglect registry regarding any applicant working in a congregate care program, shall: (i) search the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; and (ii) require the child abuse and neglect registry be checked in each state where an applicant resided at any time during the five years immediately before the day on which the application is submitted to the office; and (h) shall make rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to implement the provisions of this Subsection (3) relating to background checks. (4) (a) With the personal identifying information the office submits to the bureau under Subsection (3), the bureau shall check against state and regional criminal background databases for the applicant's criminal history. (b) With the personal identifying information and fingerprints the office submits to the bureau under Subsection (3), the bureau shall check against national criminal background databases for the applicant's criminal history. (c) Upon direction from the office, and with the personal identifying information and fingerprints the office submits to the bureau under Subsection (3)(c), the bureau shall: (i) maintain a separate file of the fingerprints for search by future submissions to the local and regional criminal records databases, including latent prints; and (ii) monitor state and regional criminal background databases and identify criminal activity associated with the applicant. (d) The bureau is authorized to submit the fingerprints to the Federal Bureau of Investigation Next Generation Identification System, to be retained in the Federal Bureau of Investigation Next Generation Identification System for the purpose of: (i) being searched by future submissions to the national criminal records databases, including the Federal Bureau of Investigation Next Generation Identification System and latent prints; and (ii) monitoring national criminal background databases and identifying criminal activity associated with the applicant. (e) The bureau shall notify and release to the office all information of criminal activity associated with the applicant. (f) Upon notice that an individual who has direct access qualified status will no longer be associated with a certification, contract, or licensee with the department, the bureau shall: (i) discard and destroy any retained fingerprints; and (ii) notify the Federal Bureau of Investigation when the license has expired or an individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of Investigation Next Generation Identification System. (5) (a) Except as provided in Subsection (5)(b), the office shall deny direct access qualified status to an applicant who, within three years from the date on which the office conducts the background check, was convicted of: (i) a felony or misdemeanor involving conduct that constitutes any of the following: (A) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to animals, or bestiality; (B) a violation of any pornography law, or an offense involving exploitation of a minor as described in Section 76-5b-201, aggravated sexual exploitation of a minor as described in Section 76-5b-201.2, possession of apparent child sexual abuse material as described in Section 76-5b-207, distribution of apparent child sexual abuse material as described in Section 76-5b-208, or unlawful activity regarding obscene material depicting the sexual abuse of a minor as described in Section 76-5b-209; (C) sexual solicitation or prostitution; (D) a violent offense committed in the presence of a child, as described in Section 76-3-203.10; (E) an offense included in Title 76, Chapter 5, Part 1, 2, 3, 4, or 7; (F) an offense included in Title 76, Chapter 5b, Sexual Exploitation Act; (G) an offense included in Title 76, Chapter 7, Offenses Against the Family; (H) an offense included in Title 76, Chapter 12, Part 3, Privacy Offenses; (I) an offense included in Title 76, Chapter 15, Part 3, Weapons of Mass Destruction; (J) an offense included in Title 78B, Chapter 7, Protective Orders and Stalking Injunctions; (K) aggravated arson, as described in Section 76-6-103; (L) aggravated burglary, as described in Section 76-6-203; (M) aggravated exploitation of prostitution, as described in Section 76-5d-208; (N) aggravated robbery, as described in Section 76-6-302; (O) endangering persons in a human services program, as described in Section 26B-2-113; (P) failure to report, as described in Section 80-2-609; (Q) identity fraud crime, as described in Section 76-6-1102; (R) riot, as described in Section 76-9-101; or (S) threatening with or using a dangerous weapon in a fight or quarrel, as described in Section 76-11-207; or (ii) a felony or misdemeanor offense committed outside of the state that, if committed in the state, would constitute a violation of an offense described in Subsection (5)(a)(i). (b) (i) Subsection (5)(a) does not apply to an applicant who is seeking a position as a peer support provider or a mental health professional, if the applicant provides services in a program that serves only adults with a primary mental health diagnosis, with or without a co-occurring substance use disorder. (ii) The office shall conduct a comprehensive review of an applicant described in Subsection (5)(b)(i) in accordance with Subsection (7). (c) Subject to Subsection (5)(d), the office shall deny direct access qualified status to an applicant who: (i) a court order prohibits from having direct access to a child or vulnerable adult; or (ii) is an applicant for a congregate care program and: (A) is subject to an open investigation for a non-criminal finding; or (B) has a supported non-criminal finding, excluding a supported finding for dependency, as defined in Section 80-1-102, within three years from the date on which the office conducts the background check. (d) (i) Subsection (5)(c) does not apply retrospectively for congregate care program employees who have an approved background screening on or before July 1, 2025; or (ii) notwithstanding Subsection (5)(c)(ii)(A), the division may grant temporary direct access qualified status to an applicant subject to a condition that the applicant is directly supervised at all times. (6) The office shall conduct a comprehensive review of an applicant's background check if the applicant: (a) has a felony or class A misdemeanor conviction that is more than three years from the date on which the office conducts the background check, for an offense described in Subsection (5)(a); (b) has a felony charge or conviction that is no more than 10 years from the date on which the office conducts the background check for an offense not described in Subsection (5)(a); (c) has a felony charge or conviction that is more than 10 years from the date on which the office conducts the background check, for an offense not described in Subsection (5)(a), with criminal or non-criminal findings after the date of the felony charge or conviction; (d) has a class B misdemeanor or class C misdemeanor conviction that is more than three years and no more than 10 years from the date on which the office conducts the background check for an offense described in Subsection (5)(a); (e) has a class B misdemeanor or class C misdemeanor conviction that is more than 10 years from the date on which the office conducts the background check, for an offense described in Subsection (5)(a), with criminal or non-criminal findings after the date of conviction; (f) has a misdemeanor charge or conviction that is no more than three years from the date on which the office conducts the background check for an offense not described in Subsection (5)(a); (g) has a misdemeanor charge or conviction that is more than three years from the date on which the office conducts the background check, for an offense not described in Subsection (5)(a), with criminal or non-criminal findings after the date of charge or conviction; (h) is currently subject to a plea in abeyance or diversion agreement for an offense described in Subsection (5)(a); (i) appears on the Sex, Kidnap, and Child Abuse Offender Registry described in Title 53, Chapter 29, Sex, Kidnap, and Child Abuse Offender Registry, or a national sex offender registry; (j) has a record of an adjudication in juvenile court for an act that, if committed by an adult, would be a felony or misdemeanor, if the applicant is: (i) under 28 years old; or (ii) 28 years old or older and has been convicted of, has pleaded no contest to, or is currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor offense described in Subsection (5)(a); (k) has a pending charge for an offense described in Subsection (5)(a); (l) has a supported finding that occurred no more than 15 years from the date on which the office conducts the background check in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (m) has a supported finding that occurred more than 15 years from the date on which the office conducts the background check in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002, with criminal or non-criminal findings after the date of the listing; (n) has a listing that occurred no more than 15 years from the date on which the office conducts the background check in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; (o) has a listing that occurred more than 15 years from the date on which the office conducts the background check in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210, with criminal or non-criminal findings after the date of the listing; (p) has a substantiated finding that occurred no more than 15 years from the date on which the office conducts the background check of severe child abuse or neglect under Section 80-3-404 or 80-3-504; or (q) has a substantiated finding that occurred more than 15 years from the date on which the office conducts the background check of severe child abuse or neglect under Section 80-3-404 or 80-3-504, with criminal or non-criminal findings after the date of the listing. (7) (a) The comprehensive review shall include an examination of: (i) the date of the offense or incident; (ii) the nature and seriousness of the offense or incident; (iii) the circumstances under which the offense or incident occurred; (iv) the age of the perpetrator when the offense or incident occurred; (v) whether the offense or incident was an isolated or repeated incident; (vi) whether the offense or incident directly relates to abuse of a child or vulnerable adult, including: (A) actual or threatened, nonaccidental physical, mental, or financial harm; (B) sexual abuse; (C) sexual exploitation; or (D) negligent treatment; (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric treatment received, or additional academic or vocational schooling completed; (viii) the applicant's risk of harm to clientele in the program or in the capacity for which the applicant is applying; and (ix) if the background check of an applicant is being conducted for the purpose of giving direct access qualified status to an applicant seeking a position in a congregate care program or to become a prospective foster or adoptive parent, any listing in the Division of Child and Family Services' Management Information System described in Section 80-2-1001. (b) At the conclusion of the comprehensive review, the office shall deny direct access qualified status to an applicant if the office finds the approval would likely create a risk of harm to a child or vulnerable adult. (8) The office shall grant direct access qualified status to an applicant who is not denied under this section. (9) (a) The office may conditionally grant direct access qualified status to an applicant, for a maximum of 60 days after the day on which the office sends written notice, without requiring that the applicant be directly supervised, if the office: (i) is awaiting the results of the criminal history search of national criminal background databases; and (ii) would otherwise grant direct access qualified status to the applicant under this section. (b) The office may conditionally grant direct access qualified status to an applicant, for a maximum of one year after the day on which the office sends written notice, without requiring that the applicant be directly supervised if the office: (i) is awaiting the results of an out-of-state registry for providers other than foster and adoptive parents; and (ii) would otherwise grant direct access qualified status to the applicant under this section. (c) Upon receiving the results of the criminal history search of a national criminal background database, the office shall grant or deny direct access qualified status to the applicant in accordance with this section. (10) (a) Each time an applicant is associated with a licensee, the department shall review the current status of the applicant's background check to ensure the applicant is still eligible for direct access qualified status in accordance with this section. (b) A licensee may not permit an individual to have direct access to a child or a vulnerable adult without being directly supervised unless: (i) the individual is the parent or guardian of the child, or the guardian of the vulnerable adult; (ii) the individual is approved by the parent or guardian of the child, or the guardian of the vulnerable adult, to have direct access to the child or the vulnerable adult; (iii) the individual is only permitted to have direct access to a vulnerable adult who voluntarily invites the individual to visit; or (iv) the individual only provides incidental care for a foster child on behalf of a foster parent who has used reasonable and prudent judgment to select the individual to provide the incidental care for the foster child. (c) Notwithstanding any other provision of this section, an applicant who is denied direct access qualified status shall not have direct access to a child or vulnerable adult unless the office grants direct access qualified status to the applicant through a subsequent application in accordance with this section. (11) If the office denies direct access qualified status to an applicant, the applicant may request a hearing in the department's Office of Administrative Hearings to challenge the office's decision. (12) (a) This Subsection (12) applies to an applicant associated with a certification, contract, or licensee serving adults only. (b) A program director or a member, as defined in Section 26B-2-105, of the licensee shall comply with this section. (c) The office shall conduct a comprehensive review for an applicant if: (i) the applicant is seeking a position: (A) as a peer support provider; (B) as a mental health professional; or (C) in a program that serves only adults with a primary mental health diagnosis, with or without a co-occurring substance use disorder; and (ii) within three years from the date on which the office conducts the background check, the applicant has a felony or misdemeanor charge or conviction or a non-criminal finding. (13) (a) This Subsection (13) applies to an applicant seeking a position in a congregate care program, an applicant seeking to provide a prospective foster home, an applicant seeking to provide a prospective adoptive home, and each adult living in the home of the prospective foster or prospective adoptive home. (b) As federally required, the office shall: (i) check the child abuse and neglect registry in each state where each applicant resided in the five years immediately before the day on which the applicant applied to be a foster or adoptive parent, to determine whether the prospective foster or adoptive parent is listed in the registry as having a substantiated or supported finding of child abuse or neglect; and (ii) except for applicants seeking a position in a congregate care program, check the child abuse and neglect registry in each state where each adult living in the home of the prospective foster or adoptive home resided in the five years immediately before the day on which the applicant applied to be a foster or adoptive parent, to determine whether the adult is listed in the registry as having a substantiated or supported finding of child abuse or neglect. (c) The requirements described in Subsection (13)(b) do not apply to the extent that: (i) federal law or rule permits otherwise; or (ii) the requirements would prohibit the Division of Child and Family Services or a court from placing a child with: (A) a noncustodial parent under Section 80-2a-301, 80-3-302, or 80-3-303; or (B) a relative, other than a noncustodial parent, under Section 80-2a-301, 80-3-302, or 80-3-303, pending completion of the background check described in Subsections (5), (6), and (7). (d) Notwithstanding Subsections (5) through (10), the office shall deny direct access qualified status if the applicant has been convicted of: (i) a felony involving conduct that constitutes any of the following: (A) child abuse, as described in Section 76-5-109; (B) aggravated child abuse, as described in Section 76-5-109.2; (C) child abandonment, as described in Section 76-5-109.3; (D) child torture, as described in Section 76-5-109.4; (E) commission of domestic violence in the presence of a child, as described in Section 76-5-114; (F) abuse or neglect of a child with a disability, as described in Section 76-5-110; (G) intentional aggravated abuse of a vulnerable adult, as described in Section 76-5-111; (H) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5; (I) aggravated murder, as described in Section 76-5-202; (J) murder, as described in Section 76-5-203; (K) manslaughter, as described in Section 76-5-205; (L) child abuse homicide, as described in Section 76-5-208; (M) homicide by assault, as described in Section 76-5-209; (N) kidnapping, as described in Section 76-5-301; (O) child kidnapping, as described in Section 76-5-301.1; (P) aggravated kidnapping, as described in Section 76-5-302; (Q) human trafficking of a child for labor, as described in Section 76-5-308.5; (R) human trafficking of a child for commercial sexual exploitation, as described in Section 76-5-308.6; (S) patronizing a child victim of human labor trafficking, as described in Section 76-5-314; (T) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses; (U) sexual exploitation of a minor, as described in Section 76-5b-201; (V) aggravated exploitation of a minor, as described in Section 76-5b-201.1; (W) possession of apparent child sexual abuse material, as described in Section 76-5b-207; (X) distribution of apparent child sexual abuse material, as described in Section 76-5b-208; (Y) unlawful activity regarding obscene material depicting the sexual abuse of a minor, as described in Section 76-5b-209; (Z) aggravated arson, as described in Section 76-6-103; (AA) aggravated burglary, as described in Section 76-6-203; (BB) aggravated robbery, as described in Section 76-6-302; (CC) incest, as described in Section 76-7-102; or (DD) domestic violence, as described in Section 77-36-1; or (ii) an offense committed outside the state that, if committed in the state, would constitute a violation of an offense described in Subsection (13)(d)(i). (e) Notwithstanding Subsections (5) through (10), the office shall deny direct access qualified status to an applicant if, within the five years from the date on which the office conducts the background check, the applicant was convicted of a felony involving conduct that constitutes a violation of any of the following: (i) aggravated assault, as described in Section 76-5-103; (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5; (iii) mayhem, as described in Section 76-5-105; (iv) an offense described in Title 58, Chapter 37, Controlled Substances, or Title 76, Chapter 18, Part 2, Offenses Concerning Controlled Substances; (v) an offense described in Title 76, Chapter 18, Part 3, Offenses Concerning Drug Paraphernalia; (vi) an offense described in Title 76, Chapter 18, Part 4, Offenses Concerning Imitation Controlled Substances; (vii) an offense described in Title 58, Chapter 37c, Controlled Substance Precursors; (viii) an offense described in Title 76, Chapter 18, Part 5, Clandestine Drug Labs; or (ix) an offense described in a statute previously in effect in this state that is the same or substantially similar to an offense described in Subsections (13)(e)(i) through (viii). (f) In addition to the circumstances described in Subsection (6), the office shall conduct a comprehensive review of an applicant's background check under this section if the applicant: (i) has an offense described in Subsection (5)(a); (ii) has an infraction conviction entered on a date that is no more than three years before the date on which the office conducts the background check; (iii) has a listing in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002; (iv) has a listing in the Division of Aging and Adult Services' vulnerable adult, neglect, or exploitation database described in Section 26B-2-210; (v) has a substantiated finding of severe child abuse or neglect under Section 80-3-404 or 80-3-504; or (vi) has a listing on the registry check described in Subsection (13)(b) as having a substantiated or supported finding of a severe type of child abuse or neglect, as defined in Section 80-1-102. (14) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office may make rules, consistent with this part, to: (a) establish procedures for, and information to be examined in, the comprehensive review described in Subsections (6), (7), and (13); and (b) determine whether to consider an offense or incident that occurred while an individual was in the custody of the Division of Child and Family Services or the Division of Juvenile Justice and Youth Services for purposes of granting or denying direct access qualified status to an applicant.