2023 Utah Code › Title 26B - Utah Health and Human Services Code › Chapter 2 - Licensing and Certifications › Part 1 - Human Services Programs and Facilities › Section 120 - Background check -- Direct access to children or vulnerable adults.

Effective 5/3/2023
26B-2-120.
Background check -- Direct access to children or vulnerable adults.
(1) As used in this section:
(a)
(i) "Applicant" means, notwithstanding Section 26B-2-101:
(A) an individual who applies for an initial license or certification or a license or certification renewal under this part;
(B) an individual who is associated with a licensee and has or will likely have direct access to a child or a vulnerable adult;
(C) an individual who provides respite care to a foster parent or an adoptive parent on more than one occasion;
(D) a department contractor;
(E) an individual who transports a child for a youth transportation company;
(F) a guardian submitting an application on behalf of an individual, other than the child or vulnerable adult who is receiving the service, if the individual is 12 years old or older and resides in a home, that is licensed or certified by the office; or
(G) a guardian submitting an application on behalf of an individual, other than the child or vulnerable adult who is receiving the service, if the individual is 12 years old or older and is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
(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 Services; or
(B) an individual who applies for employment with, or is employed by, the Department of Health and Human Services.
(b) "Application" means a background screening 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) "Certified peer support specialist" means the same as that term is defined in Section 26B-5-610.
(e) "Criminal finding" means a record of:
(i) an arrest or a warrant for an arrest;
(ii) charges for a criminal offense; or
(iii) a criminal conviction.
(f) "Incidental care" means occasional care, not in excess of five hours per week and never overnight, for a foster child.
(g) "Mental health professional" means an individual who:
(i) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
(ii) engaged in the practice of mental health therapy.
(h) "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) the Sex and Kidnap Offender Registry described in Title 77, Chapter 41, Sex and Kidnap Offender Registry, or a national sex offender registry; or
(v) a state child abuse or neglect registry.
(i)
(i) "Peer support specialist" means an individual who:
(A) has a disability or a family member with a disability, or is in recovery from a mental illness or a substance use disorder; and
(B) uses personal experience to provide support, guidance, or services to promote resiliency and recovery.
(ii) "Peer support specialist" includes a certified peer support specialist.
(iii) "Peer support specialist" does not include a mental health professional.
(j) "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.
(k) "Practice of mental health therapy" means the same as that term is defined in Section 58-60-102.
(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; and
(c) a disclosure form, specified by the office, for consent for:
(i) an initial background check upon submission of the information described in this Subsection (2);
(ii) ongoing monitoring of fingerprints and registries until no longer associated with a licensee for 90 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)(d) and (4); and
(d) if an applicant resided outside of the United States and its territories during the five years immediately preceding 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.
(3) The office:
(a) shall perform the following duties as part of a background check of 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) if the applicant is applying to become a prospective foster or adoptive parent, search the Division of Child and Family Services' Management Information System described in Section 80-2-1001 for:
(A) the applicant; and
(B) any adult living in the applicant's home;
(v) for an applicant described in Subsection (1)(a)(i)(F), search the Division of Child and Family Services' Management Information System described in Section 80-2-1001;
(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; and
(viii) search the juvenile court arrest, adjudication, and disposition records, as provided under Section 78A-6-209;
(b) shall conduct a background check of an applicant for an initial background check upon submission of the information described in Subsection (2);
(c) may conduct all or portions of a background check of an applicant, 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;
(d) 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;
(e) 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 applies for:
(i) more than one license;
(ii) direct access to a child or a vulnerable adult in more than one human services program; or
(iii) direct access to a child or a vulnerable adult under a contract with the department;
(f) shall track the status of each individual with direct access to a child or a vulnerable adult and notify the bureau within 90 days after the day on which the license expires or the individual's direct access to a child or a vulnerable adult ceases;
(g) 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);
(h) as necessary to comply with the federal requirement to check a state's child abuse and neglect registry regarding any individual 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 preceding the day on which the applicant submits the information described in Subsection (2) to the office; and
(i) 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)(d), 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's direct access to a child or a vulnerable adult has ceased for 90 days, 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), after conducting the background check described in Subsections (3) and (4), the office shall deny an application to an applicant who, within three years before the day on which the applicant submits information to the office under Subsection (2) for a background check, has been 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, including sexual exploitation of a minor or aggravated sexual exploitation of a minor;
(C) sexual solicitation;
(D) an offense included in Title 76, Chapter 5, Offenses Against the Individual, Title 76, Chapter 5b, Sexual Exploitation Act, Title 76, Chapter 4, Part 4, Enticement of a Minor, or Title 76, Chapter 7, Offenses Against the Family;
(E) aggravated arson, as described in Section 76-6-103;
(F) aggravated burglary, as described in Section 76-6-203;
(G) aggravated robbery, as described in Section 76-6-302;
(H) identity fraud crime, as described in Section 76-6-1102;
(I) sexual battery, as described in Section 76-9-702.1; or
(J) a violent offense committed in the presence of a child, as described in Section 76-3-203.10; 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, a mental health professional, or 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 (6).
(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 for an offense described in Subsection (5) with a date of conviction that is more than three years before the date on which the applicant submits the information described in Subsection (2);
(b) has a felony charge or conviction for an offense not described in Subsection (5) with a date of charge or conviction that is no more than 10 years before the date on which the applicant submits the application under Subsection (2) and no criminal findings or non-criminal findings after the date of conviction;
(c) has a class B misdemeanor or class C misdemeanor conviction for an offense described in Subsection (5) with a date of conviction that is more than three years after, and no more than 10 years before, the date on which the applicant submits the information described in Subsection (2) and no criminal findings or non-criminal findings after the date of conviction;
(d) has a misdemeanor conviction for an offense not described in Subsection (5) with a date of conviction that is no more than three years before the date on which the applicant submits information described in Subsection (2) and no criminal findings or non-criminal findings after the date of conviction;
(e) is currently subject to a plea in abeyance or diversion agreement for an offense described in Subsection (5);
(f) appears on the Sex and Kidnap Offender Registry described in Title 77, Chapter 41, Sex and Kidnap Offender Registry, or a national sex offender registry;
(g) 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);
(h) has a pending charge for an offense described in Subsection (5);
(i) has a listing in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002 that occurred no more than 15 years before the date on which the applicant submits the information described in Subsection (2) and no criminal findings or non-criminal findings dated after the date of the listing;
(j) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210 that occurred no more than 15 years before the date on which the applicant submits the information described in Subsection (2) and no criminal findings or non-criminal findings dated after the date of the listing;
(k) has a substantiated finding of severe child abuse or neglect under Section 80-3-404 or 80-3-504 that occurred no more than 15 years before the date on which the applicant submits the information described in Subsection (2) and no criminal findings or non-criminal findings dated after the date of the finding;
(l)
(i) 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 before the day on which the applicant submits the information described in Subsection (2):
(A) has a felony or misdemeanor charge or conviction;
(B) has a listing in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002;
(C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210; or
(D) has a substantiated finding of severe child abuse or neglect under Section 80-3-404 or 80-3-504;
(m)
(i)
(A) is seeking a position in a congregate care program;
(B) is seeking to become a prospective foster or adoptive parent; or
(C) is an applicant described in Subsection (1)(a)(i)(F); and
(ii)
(A) has an infraction conviction for conduct that constitutes an offense or violation described in Subsection (5)(a)(i)(A) or (B);
(B) has a listing in the Division of Child and Family Services' Licensing Information System described in Section 80-2-1002;
(C) has a listing in the Division of Aging and Adult Services' vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210;
(D) has a substantiated finding of severe child abuse or neglect under Section 80-3-404 or 80-3-504; or
(E) has a listing on the registry check described in Subsection (13)(a) as having a substantiated or supported finding of a severe type of child abuse or neglect as defined in Section 80-1-102; or
(n) is seeking to become a prospective foster or adoptive parent and has, or has an adult living with the applicant who has, a conviction, finding, or listing described in Subsection (6)(m)(ii).
(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; and
(viii) the applicant's risk of harm to clientele in the program or in the capacity for which the applicant is applying.
(b) At the conclusion of the comprehensive review, the office shall deny an application to an applicant if the office finds:
(i) that approval would likely create a risk of harm to a child or a vulnerable adult; or
(ii) an individual is prohibited from having direct access to a child or vulnerable adult by court order.
(8) The office shall approve an application to an applicant who is not denied under this section.
(9)
(a) The office may conditionally approve an application of an applicant, for a maximum of 60 days after the day on which the office sends written notice to the applicant under Subsection (11), 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 approve an application of the applicant under this section.
(b) The office may conditionally approve an application of an applicant, for a maximum of one year after the day on which the office sends written notice to the applicant under Subsection (11), 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 approve an application of the applicant under this section.
(c) Upon receiving the results of the criminal history search of a national criminal background database, the office shall approve or deny the application of the applicant in accordance with this section.
(10)
(a) A licensee or department contractor 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 associated with the licensee or department contractor and the department conducts a background screening in accordance with this section;
(ii) the individual is the parent or guardian of the child, or the guardian of the vulnerable adult;
(iii) 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;
(iv) the individual is only permitted to have direct access to a vulnerable adult who voluntarily invites the individual to visit; or
(v) 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.
(b) Notwithstanding any other provision of this section, an individual for whom the office denies an application may not have direct access to a child or vulnerable adult unless the office approves a subsequent application by the individual.
(11)
(a) Within 30 days after the day on which the applicant submits the information described in Subsection (2), the office shall notify the applicant of any potentially disqualifying criminal findings or non-criminal findings.
(b) If the notice under Subsection (11)(a) states that the applicant's application is denied, the notice shall further advise the applicant that the applicant may, under Subsection 26B-2-111(2), request a hearing in the department's Office of Administrative Hearings, to challenge the office's decision.
(c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office shall make rules, consistent with this part:
(i) defining procedures for the challenge of the office's background check decision described in Subsection (11)(b); and
(ii) expediting the process for renewal of a license under the requirements of this section and other applicable sections.
(12)
(a) An individual or a department contractor who provides services in an adults only substance use disorder program, as defined by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, is exempt from this section.
(b) The exemption described in Subsection (12)(a) does not extend to a program director or a member, as defined by Section 26B-2-105, of the program.
(13)
(a) Except as provided in Subsection (13)(b), in addition to the other requirements of this section, if the background check of an applicant is being conducted for the purpose of giving clearance status to an applicant seeking a position in a congregate care program or an applicant seeking to become a prospective foster or adoptive parent, the office shall:
(i) check the child abuse and neglect registry in each state where each applicant resided in the five years immediately preceding 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) check the child abuse and neglect registry in each state where each adult living in the home of the applicant described in Subsection (13)(a)(i) resided in the five years immediately preceding 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.
(b) The requirements described in Subsection (13)(a) 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 Subsection (5).
(c) Notwithstanding Subsections (5) through (10), the office shall deny a clearance to an applicant seeking a position in a congregate care program or an applicant to become a prospective foster or adoptive parent if the applicant has been convicted of:
(i) a felony involving conduct that constitutes any of the following:
(A) child abuse, as described in Sections 76-5-109, 76-5-109.2, and 76-5-109.3;
(B) commission of domestic violence in the presence of a child, as described in Section 76-5-114;
(C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
(D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
(E) aggravated murder, as described in Section 76-5-202;
(F) murder, as described in Section 76-5-203;
(G) manslaughter, as described in Section 76-5-205;
(H) child abuse homicide, as described in Section 76-5-208;
(I) homicide by assault, as described in Section 76-5-209;
(J) kidnapping, as described in Section 76-5-301;
(K) child kidnapping, as described in Section 76-5-301.1;
(L) aggravated kidnapping, as described in Section 76-5-302;
(M) human trafficking of a child, as described in Section 76-5-308.5;
(N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
(O) sexual exploitation of a minor, as described in Title 76, Chapter 5b, Sexual Exploitation Act;
(P) aggravated exploitation of a minor, as described in Section 76-5b-201.1;
(Q) aggravated arson, as described in Section 76-6-103;
(R) aggravated burglary, as described in Section 76-6-203;
(S) aggravated robbery, as described in Section 76-6-302;
(T) lewdness involving a child, as described in Section 76-9-702.5;
(U) incest, as described in Section 76-7-102; or
(V) 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)(c)(i).
(d) Notwithstanding Subsections (5) through (10), the office shall deny a license or license renewal to an individual seeking a position in a congregate care program or a prospective foster or adoptive parent if, within the five years immediately preceding the day on which the individual's application or license would otherwise be approved, the individual 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, Utah Controlled Substances Act;
(v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
(vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances Act;
(vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance Precursor Act; or
(viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
(e) In addition to the circumstances described in Subsection (6), the office shall conduct the comprehensive review of an applicant's background check under this section if the registry check described in Subsection (13)(a) indicates that the individual is listed in a child abuse and neglect registry of another state 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) and (7); 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 Services for purposes of approval or denial of an application for a prospective foster or adoptive parent.
Renumbered and Amended by Chapter 305, 2023 General Session
Amended by Chapter 344, 2023 General Session