Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 192 Second Substitute (2022GS)

Sponsor

Rep. Judkins, M.

Final action

House/ filed 3/4/2022

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• creates and modifies definitions;
• when hiring a mental health professional, prohibits a public or private employer from:
• considering certain arrests or criminal convictions;
• denying employment based on certain criminal convictions; and
• denying certain employment based on the mental health professional's participation in substance use treatment;
• prohibits the Division of Occupational and Professional Licensing from:
• considering certain criminal convictions when taking certain actions regarding a mental health professional's license; and
• refusing certain mental health professionals' licenses based on participation in substance use treatment; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

FORMER OFFENDER EMPLOYMENT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Marsha Judkins
Senate Sponsor: 
 Michael S. Kennedy
LONG TITLE
General Description:
This bill addresses employment and licensing of a former offender as a mental health
professional. 
Highlighted Provisions:
This bill:
▸ creates and modifies definitions;
▸ when hiring a mental health professional, prohibits a public or private employer
from:
• considering certain arrests or criminal convictions;
• denying employment based on certain criminal convictions; and
• denying certain employment based on the mental health professional's
participation in substance use treatment;
▸ prohibits the Division of Occupational and Professional Licensing from:
• considering certain criminal convictions when taking certain actions regarding a
mental health professional's license; and
• refusing certain mental health professionals' licenses based on participation in
substance use treatment; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
34-52-102
, as last amended by Laws of Utah 2019, Chapter 371
34-52-201
, as last amended by Laws of Utah 2019, Chapters 371 and 479
58-1-401
, as last amended by Laws of Utah 2021, Chapter 404
58-1-501
, as last amended by Laws of Utah 2020, Chapters 289 and 339
58-60-108
, as last amended by Laws of Utah 2021, Chapter 404
58-60-110
, as last amended by Laws of Utah 2019, Chapter 419
ENACTS:
34-52-302
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
34-52-102
 is amended to read:
34-52-102.
Definitions.
As used in this chapter:
(1) "Applicant" means an individual who provides information to a public 
employer
 or
private employer for the purpose of obtaining employment.
(2) (a) "Criminal conviction" means a verdict or finding of guilt after a criminal trial or
a plea of guilty or nolo contendere to a criminal charge.
(b) "Criminal conviction" does not include an expunged criminal conviction.
(3) "Juvenile adjudication" means:
(a) a finding by a court that the facts in a petition or criminal information alleging an
individual committed an offense when the individual was younger than 18 years old have been
proved; or
(b) an admission or plea of no contest under Section 
80-6-306
.
(4) "Mental health professional applicant" means an individual who:
(a) is licensed under Title 58, Chapter 60, Mental Health Professional Practice Act; and
(b) provides information to a public employer or private employer for the purpose of
obtaining employment that requires a license under Title 58, Chapter 60, Mental Health
Professional Practice Act.
[
(3)
] 
(5)
 (a) "Private employer" means a person who has one or more employees
employed in the same business, or in or about the same establishment, under any contract of
hire, express or implied, oral or written.
(b) "Private employer" does not include a public employer.
[
(4)
] 
(6)
 "Public employer" means an employer that is:
(a) the state or any administrative subunit of the state, including a department, division,
board, council, committee, institution, office, bureau, or other similar administrative unit of
state government;
(b) a state institution of higher education; or
(c) a municipal corporation, county, municipality, school district, local district, special
service district, or other political subdivision of the state.
Section 2. Section 
34-52-201
 is amended to read:
34-52-201.
Public employer requirements -- Exceptions for hiring a mental health
professional.
(1) [
A
] 
Except as provided in Subsections (3) and (6), a
 public employer may not
:
(a)
 exclude an applicant from an initial interview because of a past criminal
conviction[
.
]
, or, if the applicant is a mental health professional applicant, because of a past
juvenile adjudication or an arrest that occurred when the mental health professional applicant
was younger than 18 years old;
(b) make an inquiry related to an applicant's expunged criminal history;
(c) when making a hiring decision regarding a mental health professional applicant,
consider:
(i) an arrest described in Subsection (1)(a);
(ii) an arrest not followed by a criminal conviction or juvenile adjudication;
(iii) a juvenile adjudication;
(iv) a past criminal conviction for which the mental health professional applicant's
incarceration ended more than three years before the day on which the mental health
professional applies for employment with the public employer; or
(v) a past criminal conviction for which the mental health professional applicant was
not incarcerated that occurred more than three years before the day on which the mental health
professional applicant applies for employment with the public employer; or
(d) deny a mental health professional applicant employment based on a past criminal
conviction that does not bear a direct relationship to the mental health professional applicant's
ability to safely or competently perform the duties of employment.
(2) A public employer excludes an applicant from an initial interview 
under Subsection
(1)(a)
 if the public employer:
(a) requires an applicant to disclose, on an employment application, a criminal
conviction
, or, if the applicant is a mental health professional applicant, a juvenile adjudication
or an arrest described in Subsection (1)(a)
;
(b) requires an applicant to disclose, before an initial interview, a criminal conviction
,
or, if the applicant is a mental health professional applicant, a juvenile adjudication or an arrest
described in Subsection (1)(a)
; or
(c) if no interview is conducted, requires an applicant to disclose, before making a
conditional offer of employment, a criminal conviction[
.
]
, or, if the applicant is a mental health
professional, a juvenile adjudication or an arrest described in Subsection (1)(a).
(3) Notwithstanding Subsection (1)(d), a public employer may not deny a mental health
professional applicant employment that requires the mental health professional applicant to
provide substance use treatment based on:
(a) the mental health professional applicant's participation in substance use treatment;
(b) a past criminal conviction for a nonviolent drug offense for which the mental health
professional applicant's incarceration ended more than three years before the day on which the
mental health professional applies for employment with the public employer; or
(c) a past criminal conviction for a nonviolent drug offense for which the mental health
professional applicant was not incarcerated that occurred more than three years before the day
on which the mental health professional applicant applies for employment with the public
employer.
[
(3) (a) A public employer may not make any inquiry related to an applicant's
expunged criminal history.
]
[
(b)
] 
(4)
 An applicant seeking employment from a public employer may answer a
question related to an expunged criminal record as though the action underlying the expunged
criminal record never occurred.
[
(4) Subject to
] 
(5) Except as provided in
 Subsections (1) through (3), [
nothing in this
section prevents
] 
this section does not prevent
 a public employer from:
(a) asking an applicant for information about an applicant's criminal conviction history
during an initial interview or after an initial interview; or
(b) considering an applicant's 
criminal
 conviction history when making a hiring
decision.
[
(5)
] 
(6) (a)
 Subsections (1) through [
(3)
] 
(4)
 do not apply:
[
(a)
] 
(i)
 if federal, state, or local law, including corresponding administrative rules,
requires the consideration of an applicant's criminal conviction history;
[
(b)
] 
(ii)
 to a public employer that is a law enforcement agency;
[
(c)
] 
(iii)
 to a public employer that is part of the criminal or juvenile justice system;
[
(d)
] 
(iv)
 to a public employer seeking a nonemployee volunteer;
[
(e)
] 
(v)
 to a public employer that works with children or vulnerable adults;
[
(f)
] 
(vi)
 to the Department of Alcoholic Beverage Control created in Section
32B-2-203
;
[
(g)
] 
(vii)
 to the State Tax Commission;
[
(h)
] 
(viii)
 to a public employer whose primary purpose is performing financial or
fiduciary functions; [
and
] 
or
[
(i)
] 
(ix)
 to a public transit district hiring or promoting an individual for a safety
sensitive position described in Section 
17B-2a-825
.
(b) Subsections (1)(c)(iv), (1)(c)(v), and (1)(d) do not apply to a criminal conviction
for:
(i) a violent felony as defined in Section 
76-3-203.5
; or
(ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
Section 3. Section 
34-52-302
 is enacted to read:
 34-52-302.
Private employer requirements when hiring a mental health
professional.
(1) Except as provided in Subsections (3) and (5), a private employer may not:
(a) exclude a mental health professional applicant from an initial interview because of
a past criminal conviction, juvenile adjudication, or an arrest that occurred when the mental
health professional applicant was younger than 18 years old;
(b) make an inquiry related to a mental health professional applicant's expunged
criminal history;
(c) when making a hiring decision regarding a mental health professional applicant,
consider:
(i) an arrest described in Subsection (1)(a);
(ii) an arrest not followed by a criminal conviction or juvenile adjudication;
(iii) a juvenile adjudication;
(iv) a past criminal conviction for which the mental health professional applicant's
incarceration ended more than three years before the day on which the mental health
professional applies for employment with the private employer; or
(v) a past criminal conviction for which the mental health professional applicant was
not incarcerated that occurred more than three years before the day on which the mental health
professional applicant applies for employment with the private employer; or
(d) deny a mental health professional applicant employment based on a past criminal
conviction that does not bear a direct relationship to the mental health professional applicant's
ability to safely or competently perform the employment requirements.
(2) A private employer excludes a mental health professional applicant from an initial
interview under Subsection (1)(a) if the private employer:
(a) requires the mental health professional applicant to disclose, on an employment
application, a criminal conviction, a juvenile adjudication, or an arrest described in Subsection
(1)(a);
(b) requires the mental health professional applicant to disclose, before an initial
interview, a criminal conviction, a juvenile adjudication, or an arrest described in Subsection
(1)(a); or
(c) if no interview is conducted, requires the mental health professional applicant to
disclose, before making a conditional offer of employment, a criminal conviction, a juvenile
adjudication, or an arrest described in Subsection (1)(a).
(3) Notwithstanding Subsection (1)(d), a private employer may not deny a mental
health professional applicant employment that requires the mental health professional applicant
to provide substance use treatment based on:
(a) the mental health professional applicant's participation in substance use treatment;
or
(b) a past criminal conviction for a nonviolent drug offense for which the mental health
professional applicant's incarceration ended more than three years before the day on which the
mental health professional applies for employment with the private employer; or
(c) a past criminal conviction for a nonviolent drug offense for which the mental health
professional applicant was not incarcerated that occurred more than three years before the day
on which the mental health professional applicant applies for employment with the private
employer.
(4) Except as provided in Subsections (1) through (3), this section does not prevent a
private employer from:
(a) asking a mental health professional applicant for information about the mental
health professional applicant's criminal conviction history during an initial interview or after an
initial interview; or
(b) considering a mental health professional applicant's criminal conviction history
when making a hiring decision.
(5) (a) Subsections (1) through (3) do not apply:
(i) if federal, state, or local law, including corresponding administrative rules, requires
the consideration of an applicant's criminal conviction history;
(ii) to a private employer that is part of the criminal or juvenile justice system;
(iii) to a private employer seeking a nonemployee volunteer;
(iv) to a private employer that works with children or vulnerable adults; or
(v) to a private employer whose primary purpose is performing financial or fiduciary
functions.
(b) Subsections (1)(c)(iv), (1)(c)(v), and (1)(d) do not apply to a criminal conviction
for:
(i) a violent felony as defined in Section 
76-3-203.5
; or
(ii) a felony related to a criminal sexual act under Title 76, Chapter 5, Part 4, Sexual
Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act.
Section 4. Section 
58-1-401
 is amended to read:
58-1-401.
Grounds for denial of license -- Disciplinary proceedings -- Time
limitations -- Sanctions.
(1) The division shall refuse to issue a license to an applicant and shall refuse to renew
or shall revoke, suspend, restrict, place on probation, or otherwise act upon the license of a
licensee who does not meet the qualifications for licensure under this title.
(2) The division may refuse to issue a license to an applicant and may refuse to renew
or may revoke, suspend, restrict, place on probation, issue a public reprimand to, or otherwise
act upon the license of a licensee for the following reasons:
(a) subject to [
the provisions of
] Subsection (7), the applicant or licensee has engaged
in unprofessional conduct, as defined by statute or rule under this title;
(b) the applicant or licensee has engaged in unlawful conduct as defined by statute
under this title;
(c) the applicant or licensee has been determined to be mentally incompetent by a court
of competent jurisdiction; or
(d) subject to Subsections 
58-31b-401
(7), 
58-60-108
(2), 
58-61-401
(2), 
58-67-401
(2),
58-68-401
(2), 
58-70a-401
(2), and Section 
58-81-105
, the applicant or licensee is unable to
practice the occupation or profession with reasonable skill and safety because of illness,
drunkenness, excessive use of drugs, narcotics, chemicals, or other type of material, or as a
result of a mental or physical condition, when the condition demonstrates a threat or potential
threat to the public health, safety, or welfare.
(3) A licensee whose license to practice an occupation or profession regulated by this
title has been suspended, revoked, placed on probation, or restricted may apply for
reinstatement of the license at reasonable intervals and upon compliance with conditions
imposed upon the licensee by statute, rule, or terms of the license suspension, revocation,
probation, or restriction.
(4) The division may issue cease and desist orders to:
(a) a licensee or applicant who may be disciplined under Subsection (1) or (2);
(b) a person who engages in or represents that the person is engaged in an occupation
or profession regulated under this title; and
(c) a person who otherwise violates this title or a rule adopted under this title.
(5) The division may impose an administrative penalty in accordance with Section
58-1-502
.
(6) (a) The division may not take disciplinary action against a person for
unprofessional or unlawful conduct under this title, unless the division enters into a stipulated
agreement or initiates an adjudicative proceeding regarding the conduct within four years after
the conduct is reported to the division, except under Subsection (6)(b).
(b) (i) The division may not take disciplinary action against a person for unprofessional
or unlawful conduct more than 10 years after the occurrence of the conduct, unless the
proceeding is in response to a civil or criminal judgment or settlement and the proceeding is
initiated within one year following the judgment or settlement.
(ii) Notwithstanding Subsection (6)(b)(i), the division may refuse to issue a license due
to unprofessional or unlawful conduct that occurred more than 10 years before a request or
application for licensure is made.
(7) When the division is determining whether to refuse to issue a license to an
applicant, or to refuse to renew the license of a licensee, based solely on the criminal
conviction of an applicant or licensee, the division shall:
(a) provide individualized consideration to the applicant or licensee;
(b) 
except as provided in Subsection 
58-60-108
(2),
 determine whether the criminal
conviction bears a substantial relationship to the applicant's or licensee's ability to safely or
competently practice the occupation or profession; and
(c) consider the applicant's or licensee's current circumstances, which may include any
of the following:
(i) the age of the applicant or licensee when the applicant or licensee committed the
offense;
(ii) the time that has elapsed since the applicant or licensee committed the offense;
(iii) whether the applicant or licensee has completed the applicant's or licensee's
criminal sentence;
(iv) whether the applicant has completed or is actively participating in rehabilitative
drug or alcohol treatment;
(v) any testimonials or recommendations from other individuals provided by the
applicant or licensee, including a progress report from the applicant's or licensee's probation or
parole officer;
(vi) other evidence of rehabilitation provided by the applicant or licensee;
(vii) the education and training of the applicant or licensee;
(viii) the employment history of the applicant or licensee; and
(ix) other relevant information provided by the applicant or licensee.
Section 5. Section 
58-1-501
 is amended to read:
58-1-501.
Unlawful and unprofessional conduct.
(1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful
under this title and includes:
(a) practicing or engaging in, representing oneself to be practicing or engaging in, or
attempting to practice or engage in any occupation or profession requiring licensure under this
title if the person is:
(i) not licensed to do so or not exempted from licensure under this title; or
(ii) restricted from doing so by a suspended, revoked, restricted, temporary,
probationary, or inactive license;
(b) (i) impersonating another licensee or practicing an occupation or profession under a
false or assumed name, except as permitted by law; or
(ii) for a licensee who has had a license under this title reinstated following disciplinary
action, practicing the same occupation or profession using a different name than the name used
before the disciplinary action, except as permitted by law and after notice to, and approval by,
the division;
(c) knowingly employing any other person to practice or engage in or attempt to
practice or engage in any occupation or profession licensed under this title if the employee is
not licensed to do so under this title;
(d) knowingly permitting the person's authority to practice or engage in any occupation
or profession licensed under this title to be used by another, except as permitted by law;
(e) obtaining a passing score on a licensure examination, applying for or obtaining a
license, or otherwise dealing with the division or a licensing board through the use of fraud,
forgery, or intentional deception, misrepresentation, misstatement, or omission;
(f) (i) issuing, or aiding and abetting in the issuance of, an order or prescription for a
drug or device to a person located in this state:
(A) without prescriptive authority conferred by a license issued under this title, or by
an exemption to licensure under this title; or
(B) with prescriptive authority conferred by an exception issued under this title or a
multistate practice privilege recognized under this title, if the prescription was issued without
first obtaining information, in the usual course of professional practice, that is sufficient to
establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
proposed treatment; and
(ii) Subsection (1)(f)(i) does not apply to treatment rendered in an emergency, on-call
or cross coverage situation, provided that the person who issues the prescription has
prescriptive authority conferred by a license under this title, or is exempt from licensure under
this title; or
(g) aiding or abetting any other person to violate any statute, rule, or order regulating
an occupation or profession under this title.
(2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is defined
as unprofessional conduct under this title or under any rule adopted under this title and
includes:
(a) violating any statute, rule, or order regulating an occupation or profession under this
title;
(b) violating, or aiding or abetting any other person to violate, any generally accepted
professional or ethical standard applicable to an occupation or profession regulated under this
title;
(c) subject to [
the provisions of Subsection (4),
] 
Subsections (4) and 
58-60-110
(4),
engaging in conduct that results in conviction, a plea of nolo contendere, or a plea of guilty or
nolo contendere that is held in abeyance pending the successful completion of probation with
respect to a crime of moral turpitude or any other crime that, when considered with the
functions and duties of the occupation or profession for which the license was issued or is to be
issued, bears a substantial relationship to the licensee's or applicant's ability to safely or
competently practice the occupation or profession;
(d) engaging in conduct that results in disciplinary action, including reprimand,
censure, diversion, probation, suspension, or revocation, by any other licensing or regulatory
authority having jurisdiction over the licensee or applicant in the same occupation or profession
if the conduct would, in this state, constitute grounds for denial of licensure or disciplinary
proceedings under Section 
58-1-401
;
(e) engaging in conduct, including the use of intoxicants, drugs, narcotics, or similar
chemicals, to the extent that the conduct does, or might reasonably be considered to, impair the
ability of the licensee or applicant to safely engage in the occupation or profession;
(f) practicing or attempting to practice an occupation or profession regulated under this
title despite being physically or mentally unfit to do so;
(g) practicing or attempting to practice an occupation or profession regulated under this
title through gross incompetence, gross negligence, or a pattern of incompetency or negligence;
(h) practicing or attempting to practice an occupation or profession requiring licensure
under this title by any form of action or communication which is false, misleading, deceptive,
or fraudulent;
(i) practicing or attempting to practice an occupation or profession regulated under this
title beyond the scope of the licensee's competency, abilities, or education;
(j) practicing or attempting to practice an occupation or profession regulated under this
title beyond the scope of the licensee's license;
(k) verbally, physically, mentally, or sexually abusing or exploiting any person through
conduct connected with the licensee's practice under this title or otherwise facilitated by the
licensee's license;
(l) acting as a supervisor without meeting the qualification requirements for that
position that are defined by statute or rule;
(m) issuing, or aiding and abetting in the issuance of, an order or prescription for a
drug or device:
(i) without first obtaining information in the usual course of professional practice, that
is sufficient to establish a diagnosis, to identify conditions, and to identify contraindications to
the proposed treatment; or
(ii) with prescriptive authority conferred by an exception issued under this title, or a
multi-state practice privilege recognized under this title, if the prescription was issued without
first obtaining information, in the usual course of professional practice, that is sufficient to
establish a diagnosis, to identify underlying conditions, and to identify contraindications to the
proposed treatment;
(n) violating a provision of Section 
58-1-501.5
; or
(o) violating the terms of an order governing a license.
(3) Unless otherwise specified by statute or administrative rule, in a civil or
administrative proceeding commenced by the division under this title, a person subject to any
of the unlawful and unprofessional conduct provisions of this title is strictly liable for each
violation.
(4) The following are not evidence of engaging in unprofessional conduct under
Subsection (2)(c):
(a) an arrest not followed by a conviction; or
(b) a conviction for which an individual's incarceration has ended more than seven
years before the date of the division's consideration, unless:
(i) after the incarceration the individual has engaged in additional conduct that results
in another conviction, a plea of nolo contendere, or a plea of guilty or nolo contendere that is
held in abeyance pending the successful completion of probation; or
(ii) the conviction was for:
(A) a violent felony as defined in Section 
76-3-203.5
;
(B) a felony related to a criminal sexual act [
pursuant to
] 
under
 Title 76, Chapter 5,
Part 4, Sexual Offenses, or Title 76, Chapter 5b, Sexual Exploitation Act; or
(C) a felony related to criminal fraud or embezzlement, including a felony [
pursuant to
]
under
 Title 76, Chapter 6, Part 5, Fraud, or Title 76, Chapter 6, Part 4, Theft.
Section 6. Section 
58-60-108
 is amended to read:
58-60-108.
Grounds for action regarding license -- Disciplinary proceedings.
(1) Subject to Subsection (2), the division's grounds for refusing to issue a license to an
applicant, for refusing to renew the license of a licensee, for revoking, suspending, restricting,
or placing on probation the license of a licensee, for issuing a public or private reprimand to a
licensee, and for issuing a cease and desist order are under Section 
58-1-401
.
(2) The division may not
:
(a)
 refuse, revoke, suspend, or in any way restrict an [
applicant
] 
applicant's
 or
licensee's license under this chapter solely because the applicant or licensee seeks or
participates in mental health or substance abuse treatment[
.
]
;
(b) refuse an applicant's license under Part 5, Substance Use Disorder Counselor Act,
because the applicant was convicted of a nonviolent drug offense if:
(i) the applicant's incarceration for the offense ended more than three years before the
day on which the applicant sought licensure under Part 5, Substance Use Disorder Counselor
Act; or
(ii) in the case the applicant was not incarcerated for the offense, the conviction
occurred more than three years before the day on which the applicant sought licensure under
Part 5, Substance Use Disorder Counselor Act.
Section 7. Section 
58-60-110
 is amended to read:
58-60-110.
Unprofessional conduct.
(1) As used in this chapter, "unprofessional conduct" includes:
(a) using or employing the services of any individual to assist a licensee in any manner
not in accordance with the generally recognized practices, standards, or ethics of the profession
for which the individual is licensed, or the laws of the state;
(b) failure to confine practice conduct to those acts or practices:
(i) in which the individual is competent by education, training, and experience within
limits of education, training, and experience; and
(ii) which are within applicable scope of practice laws of this chapter;
(c) disclosing or refusing to disclose any confidential communication under Section
58-60-114
 or 
58-60-509
; and
(d) a pattern of failing to offer a patient the opportunity to waive the patient's privacy
rights under the Standards for Privacy of Individually Identifiable Health Information, 45
C.F.R., Parts 160 and 164.
(2) "Unprofessional conduct" under this chapter may be further defined by division
rule.
(3) Notwithstanding Section 
58-1-401
, the division may not act upon the license of a
licensee for unprofessional conduct under Subsection (1)(d).
(4) (a) Except as provided in Subsection (4)(b), the following are not evidence of
engaging in unprofessional conduct under Subsection 
58-1-501
(2)(c):
(i) a conviction for which an applicant's incarceration ended more than three years
before the date of the division's consideration; or
(ii) a conviction for which the applicant was not incarcerated that occurred more than
three years before the date of the division's consideration.
(b) Subsection (4)(a) does not apply to a conviction described in Subsection
58-1-501
(4)(b)(ii).