2006 Utah Code - 62A-2-120 — Criminal background checks -- Direct access to children or vulnerable adults.

     62A-2-120.   Criminal background checks -- Direct access to children or vulnerable adults.
     (1) (a) Except as provided in Subsection (7), an applicant for an initial license or a license renewal under this chapter shall submit to the office the names and other identifying information, which may include fingerprints, of all persons associated with the licensee, as defined in Section 62A-2-101, with direct access to children or vulnerable adults.
     (b) The Criminal Investigations and Technical Services Division of the Department of Public Safety, or the office as authorized under Section 53-10-108, shall process the information described in Subsection (1)(a) to determine whether the individual has been convicted of any crime.
     (c) Except as provided in Subsection (1)(d), if an individual has not continuously lived in Utah for the five years immediately preceding the day on which the information referred to in Subsection (1)(a) is submitted to the office, the individual shall submit fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted to the FBI through the Criminal Investigations and Technical Services Division.
     (d) An individual is not required to comply with Subsection (1)(c) if the individual continuously lived in Utah for the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, except for time spent outside of the United States and its territories.
     (e) If an applicant described in Subsection (1)(a) spent time outside of the United States and its territories at any time during the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, the office shall require the applicant to submit documentation establishing whether the applicant was convicted of a crime during the time that the applicant spent outside of the United States and its territories.
     (f) The office shall make rules, in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, to implement the provisions of this Subsection (1).
     (2) The office shall approve a person for whom identifying information is submitted under Subsection (1) to have direct access to children or vulnerable adults in the licensee program if:
     (a) (i) the person is found to have no criminal history record; or
     (ii) (A) the only convictions in the person's criminal history record are misdemeanors or infractions not involving any of the offenses described in Subsection (3); and
     (B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five years before the date of the search;
     (b) the person is not listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;
     (c) juvenile court records do not show that a court made a substantiated finding, under Section 78-3a-320, that the person committed a severe type of child abuse or neglect;
     (d) the person is not listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006; and
     (e) the person has not pled guilty or no contest to a pending charge for any:
     (i) felony;
     (ii) misdemeanor listed in Subsection (3); or
     (iii) infraction listed in Subsection (3).
     (3) Unless at least ten years have passed since the date of conviction, the office may not

approve a person to have direct access to children or vulnerable adults in the licensee's human services program if that person has been convicted of an offense, whether a felony, misdemeanor, or infraction, that is:
     (a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
     (b) a violation of any pornography law, including sexual exploitation of a minor;
     (c) prostitution;
     (d) included in:
     (i) Title 76, Chapter 5, Offenses Against the Person;
     (ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
     (iii) Title 76, Chapter 7, Offenses Against the Family; or
     (e) a conviction in:
     (i) (A) another state, territory, or district of the United States; or
     (B) a federal court of the United States; and
     (ii) for an offense that, if committed in the state, would constitute a violation of an offense described in Subsection (3)(d).
     (4) (a) If a person for whom identifying information is submitted under Subsection (1) is not approved by the office under Subsection (2) or (3) to have direct access to children or vulnerable adults in the licensee program, the office shall conduct a comprehensive review of criminal and court records and related circumstances if the reason the approval is not granted is due solely to one or more of the following:
     (i) a conviction for:
     (A) any felony not listed in Subsection (3);
     (B) any misdemeanor or infraction, not listed in Subsection (3), within five years of the date of the search;
     (C) a protective order or ex parte protective order violation under Section 76-5-108 or a similar statute in another state; or
     (D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least ten years have passed since the date of conviction;
     (ii) a plea of guilty or no contest to a pending:
     (A) felony;
     (B) misdemeanor not listed in Subsection (3); or
     (C) infraction not listed in Subsection (3);
     (iii) the person is listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;
     (iv) juvenile court records show that a court made a substantiated finding, under Section 78-3a-320, that the person committed a severe type of child abuse or neglect; or
     (v) the person is listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006.
     (b) The comprehensive review under Subsection (4)(a) 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 or mental harm;
     (B) sexual abuse;
     (C) sexual exploitation; and
     (D) negligent treatment;
     (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric treatment received, or additional academic or vocational schooling completed, by the person; and
     (viii) any other pertinent information.
     (c) At the conclusion of the comprehensive review under Subsection (4)(a), the office shall approve the person who is the subject of the review to have direct access to children or vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or vulnerable adult.
     (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the office may make rules, consistent with this chapter, defining procedures for the comprehensive review described in this Subsection (4).
     (5) (a) For purposes of this Subsection (5), "directly supervised" means that the person being supervised is under the uninterrupted visual and auditory surveillance of the person doing the supervising.
     (b) A licensee may not permit any person to have direct access to a child or a vulnerable adult unless, subject to Subsection (5)(c), that person is:
     (i) associated with the licensee and:
     (A) approved by the office to have direct access to children or vulnerable adults under this section; or
     (B) (I) the office has not determined whether to approve that person to have direct access to children or vulnerable adults;
     (II) the information described in Subsection (1)(a), relating to that person, is submitted to the department; and
     (III) that person is directly supervised by a person associated with the licensee who is approved by the office to have direct access to children or vulnerable adults under this section;
     (ii) (A) not associated with the licensee; and
     (B) directly supervised by a person associated with the licensee who is approved by the office to have direct access to children or vulnerable adults under this section;
     (iii) the parent or guardian of the child or vulnerable adult; or
     (iv) a person approved by the parent or guardian of the child or vulnerable adult to have direct access to the child or vulnerable adult.
     (c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child or a vulnerable adult if that person is prohibited by court order from having that access.
     (6) (a) Within 30 days after receiving the identifying information for a person under Subsection (1), the office shall give written notice to the person and to the licensee or applicant with whom the person is associated of:
     (i) the office's decision regarding its background screening clearance and findings; and
     (ii) a list of any convictions found in the search.
     (b) With the notice described in Subsection (6)(a), the office shall also give to the person the details of any comprehensive review conducted under Subsection (4).
     (c) If the notice under Subsection (6)(a) states that the person is not approved to have

direct access to children or vulnerable adults, the notice shall further advise the persons to whom the notice is given that either the person or the licensee or applicant with whom the person is associated, or both, may, under Subsection 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to challenge the office's decision.
     (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the office shall make rules, consistent with this chapter:
     (i) defining procedures for the challenge of its background screening decision described in this Subsection (6); and
     (ii) expediting the process for renewal of a license under the requirements of this section and other applicable sections.
     (7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for an initial license, or license renewal, to operate a substance abuse treatment program that provides services to adults only.

Amended by Chapter 77, 2006 General Session
Amended by Chapter 57, 2006 General Session