Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 468 First Substitute (2023GS)

Sponsor

Rep. Judkins, M.

Final action

Governor Signed 3/17/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• creates and modifies definitions;
• when hiring a mental health professional, prohibits certain public employers and public employer contractors from:
• considering certain arrests or criminal convictions; or
• denying employment based on certain criminal convictions or participation in substance use treatment;
• when hiring a mental health professional, prohibits a private employer from excluding an applicant from an interview for a juvenile adjudication, certain arrests, or an expunged criminal offense;
• modifies the Office of Licensing's (office) background and screening processes for an individual applying to work in a program with direct access to a child or vulnerable adult;
• exempts certain individuals employed by the Department of Health and Human Services from the office's background and screening processes;
• requires the office to conduct a comprehensive review of an applicant's background check if the applicant is applying to work in a program as a peer support provider or mental health professional;
• requires the office to deny an applicant's application upon certain background check findings;
• provides administrative rulemaking authority; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

EMPLOYMENT SCREENING REQUIREMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Marsha Judkins
Senate Sponsor: 
Michael S. Kennedy
LONG TITLE
General Description:
This bill addresses employment background screening requirements.
Highlighted Provisions:
This bill:
▸ creates and modifies definitions;
▸ when hiring a mental health professional, prohibits certain public employers and
public employer contractors from:
• considering certain arrests or criminal convictions; or
• denying employment based on certain criminal convictions or participation in
substance use treatment;
▸ when hiring a mental health professional, prohibits a private employer from
excluding an applicant from an interview for a juvenile adjudication, certain arrests,
or an expunged criminal offense;
▸ modifies the Office of Licensing's (office) background and screening processes for
an individual applying to work in a program with direct access to a child or
vulnerable adult;
▸ exempts certain individuals employed by the Department of Health and Human
Services from the office's background and screening processes;
▸ requires the office to conduct a comprehensive review of an applicant's background
check if the applicant is applying to work in a program as a peer support provider or
mental health professional;
▸ requires the office to deny an applicant's application upon certain background check
findings;
▸ provides administrative rulemaking authority; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a coordination clause.
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 2022, Chapter 447
62A-2-120
, as last amended by Laws of Utah 2022, Chapters 185, 335, 430, and 468
62A-5-103.5
, as last amended by Laws of Utah 2017, Chapter 181
ENACTS:
34-52-302
, Utah Code Annotated 1953
Utah Code Sections Affected by Coordination Clause:
34-52-201
, as last amended by Laws of Utah 2022, Chapter 447
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.
(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
:
(i)
 a past criminal conviction[
.
]
; or
(ii) if the applicant is a mental health professional applicant, an arrest for an offense
that occurred before the applicant was 18 years old or a past juvenile adjudication;
(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 for an offense that occurred before the mental health professional applicant
was 18 years old;
(ii) an arrest not followed by a criminal conviction or juvenile adjudication;
(iii) a juvenile adjudication; or
(iv) a past criminal conviction if:
(A) the sentence for the criminal conviction is terminated; and
(B) the mental health professional applicant was not incarcerated for the past criminal
conviction or the mental health professional applicant's incarceration for the past criminal
conviction ended at least three years before the day on which the mental health professional
applicant applied for employment; 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)
 if the public employer:
[
(a) requires an applicant to disclose, on an employment application, a criminal
conviction;
]
[
(b) requires an applicant to disclose, before an initial interview, a criminal conviction;
or
]
[
(c) if no interview is conducted, requires an applicant to disclose, before making a
conditional offer of employment, a criminal conviction.
]
(a) requires an applicant to disclose a criminal conviction:
(i) on an employment application;
(ii) before an initial interview; or
(iii) if no interview is conducted, before making a conditional offer of employment; or
(b) requires an applicant who is a mental health professional applicant to disclose an
arrest for an offense that occurred before the applicant was 18 years old or a juvenile
adjudication:
(i) on an employment application;
(ii) before an initial interview; or
(iii) if no interview is conducted, before making a conditional offer of employment.
(3) 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;
or
(b) a past criminal conviction for a nonviolent drug offense if:
(i) the sentence for the criminal conviction is terminated; and
(ii) (A) the mental health professional applicant was not incarcerated for the past
criminal conviction; or
(B) the mental health professional applicant's incarceration for the past criminal
conviction ended at least three years before the day on which the mental health professional
applicant applied for employment.
[
(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)
] 
(5)
 [
Subject to
] 
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 Services 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) 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.
(c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
public employer.
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 Subsection (4), a private employer may not exclude a mental
health professional applicant from an initial interview because of:
(a) an arrest for an offense that occurred before the mental health professional applicant
was 18 years old;
(b) a juvenile adjudication; or
(c) an expunged criminal offense.
(2) A private employer excludes a mental health professional applicant from an initial
interview under Subsection (1) if the private employer requires the mental health professional
applicant to disclose an arrest for an offense that occurred before the mental health professional
applicant was 18 years old, a juvenile adjudication, or an expunged criminal offense:
(a) on an employment application;
(b) before an initial interview; or
(c) if no interview is conducted, before making a conditional offer of employment.
(3) Except as provided in Subsections (1) and (2), 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.
(4) Subsections (1) and (2) do not apply:
(a) if federal, state, or local law, including corresponding administrative rules, requires
the consideration of an applicant's criminal conviction history;
(b) to a private employer that is part of the criminal or juvenile justice system;
(c) to a private employer seeking a nonemployee volunteer;
(d) to a private employer that works with children or vulnerable adults; or
(e) to a private employer whose primary purpose is performing financial or fiduciary
functions.
Section 4. Section 
62A-2-120
 is amended to read:
62A-2-120.
Background check -- Direct access to children or vulnerable adults.
(1) As used in this section:
(a) (i) "Applicant" means
, notwithstanding Section 
62A-2-101
:
(A) [
the same as that term is defined in Section 
62A-2-101
;
] 
an individual who applies
for an initial license or certification or a license or certification renewal under this chapter;
(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[
, with the child or vulnerable adult
who is receiving services
]; 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 [
mean an individual, including an adult, who is in the custody
of the Division of Child and Family Services or the Division of Juvenile Justice Services.
]
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
62A-15-1301
.
(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.
[
(d)
] 
(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 
62A-3-311.1
;
(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.
[
(e)
] 
(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) [
(a)
] Except as provided in Subsection [
(13),
] 
(12),
 an applicant or a representative
shall submit the following to the office:
[
(i)
] 
(a)
 personal identifying information;
[
(ii)
] 
(b)
 a fee established by the office under Section 
63J-1-504
; [
and
]
[
(iii)
] 
(c)
 a disclosure form, specified by the office, for consent for:
[
(A)
] 
(i)
 an initial background check upon submission of the information described [
under
] 
in
 this Subsection [
(2)(a)
] 
(2)
;
[
(B)
] 
(ii)
 ongoing monitoring of fingerprints and registries until no longer associated
with a licensee for 90 days;
[
(C)
] 
(iii)
 a background check when the office determines that reasonable cause exists;
and
[
(D)
] 
(iv)
 retention of personal identifying information, including fingerprints, for
monitoring and notification as described in Subsections (3)(d) and (4)[
.
]
; and
[
(b)
] 
(d)
 [
In addition to the requirements described in Subsection (2)(a),
] 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 [
Subsection (2)(a)
] 
Subsections (2)(a)
through (c)
 is submitted to the office, [
the office may require the applicant to submit
]
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 [
Department of Human Services,
] 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
;
[
(iv)
] 
(vi)
 search the [
Department of Human Services,
] Division of Aging and Adult
Services' vulnerable adult abuse, neglect, or exploitation database described in Section
62A-3-311.1
;
[
(v)
] 
(vii)
 search the juvenile court records for substantiated findings of severe child
abuse or neglect described in Section 
80-3-404
; and
[
(vi)
] 
(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 [
under Subsection (2)(a)
] 
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 [
approved
] applicant under this section to ensure that [
an
approved
] 
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 license and
] 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 [
Department of Human Services,
] 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)(a)
] 
(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 [
from the office that a license has expired or an
] 
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) [
After
] 
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 [
any of the
following, regardless of whether the offense is a felony, a misdemeanor, or an infraction:
]
:
(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;
[
(ii)
] 
(B)
 a violation of any pornography law, including sexual exploitation of a minor
or aggravated sexual exploitation of a minor;
[
(iii) prostitution;
]
[
(iv) an offense included in:
]
[
(A) Title 76, Chapter 5, Offenses Against the Individual;
]
[
(B) Section 
76-5b-201
, Sexual Exploitation of a Minor;
]
[
(C) Section 
76-5b-201.1
, Aggravated Sexual Exploitation of a Minor; or
]
[
(D) Title 76, Chapter 7, Offenses Against the Family;
]
(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;
[
(v)
] 
(E)
 aggravated arson, as described in Section 
76-6-103
;
[
(vi)
] 
(F)
 aggravated burglary, as described in Section 
76-6-203
;
[
(vii)
] 
(G)
 aggravated robbery, as described in Section 
76-6-302
;
[
(viii)
] 
(H)
 identity fraud crime, as described in Section 
76-6-1102
; [
or
]
(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
[
(ix)
] 
(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 [
Subsections
(5)(a)(i) through (viii).
] 
Subsection (5)(a)(i).
[
(b) If the office denies an application to an applicant based on a conviction described
in Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
Subsection (6).
]
[
(c) If the applicant will be working in a program serving only adults whose only
impairment is a mental health diagnosis, including that of a serious mental health disorder,
with or without co-occurring substance use disorder, the denial provisions of Subsection (5)(a)
do not apply, and the office shall conduct a comprehensive review as described in Subsection
(6).
]
(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) [
(a)
] The office shall conduct a comprehensive review of an applicant's background
check if the applicant:
[
(i)
] 
(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 an open court case or a conviction for any felony offense,
] 
has a felony charge
or conviction for an offense
 not described in Subsection [
(5)(a), with a date of conviction that
is
] 
(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
;
[
(ii) has an open court case or a conviction for a misdemeanor offense, not described in
Subsection (5)(a), and designated by the office, by rule, in accordance with Title 63G, Chapter
3, Utah Administrative Rulemaking Act, if the conviction is within three years before the day
on which the applicant submits information to the office under Subsection (2) for a background
check;
]
[
(iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
than three years before the day on which the applicant submitted information under Subsection
(2)(a);
]
[
(iv) is currently subject to a plea in abeyance or diversion agreement for any offense
described in Subsection (5)(a);
]
[
(v) has a listing in the Department of Human Services, Division of Child and Family
Services' Licensing Information System described in Section 
80-2-1002
;
]
[
(vi) has a listing in the Department of Human Services, Division of Aging and Adult
Services' vulnerable adult abuse, neglect, or exploitation database described in Section
62A-3-311.1
;
]
[
(vii) has a record in the juvenile court of a substantiated finding of severe child abuse
or neglect described in Section 
80-3-404
;
]
[
(viii)
] 
(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:
[
(A)
] 
(i)
 under 28 years old; or
[
(B)
] 
(ii)
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);
] 
(5);
[
(ix)
] 
(h)
 has a pending charge for an offense described in Subsection [
(5)(a); or
] 
(5);
[
(x) is an applicant described in Subsection (5)(c).
]
(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 
62A-3-311.1
 that occurred no more than
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 
62A-3-311.1
; 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 
62A-3-311.1
;
(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).
[
(b)
] 
(7) (a)
 The comprehensive review [
described in Subsection (6)(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, 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[
; and
]
.
[
(ix) any other pertinent information presented to or publicly available to the
committee members.
]
[
(c)
] 
(b)
 At the conclusion of the comprehensive review [
described in Subsection
(6)(a)
], 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.
[
(d) At the conclusion of the comprehensive review described in Subsection (6)(a), the
office may not deny an application to an applicant solely because the applicant was convicted
of an offense that occurred 10 or more years before the day on which the applicant submitted
the information required under Subsection (2)(a) if:
]
[
(i) the applicant has not committed another misdemeanor or felony offense after the
day on which the conviction occurred; and
]
[
(ii) the applicant has never been convicted of an offense described in Subsection
(14)(c).
]
[
(e) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
the office may make rules, consistent with this chapter, to establish procedures for the
comprehensive review described in this Subsection (6).
]
[
(7) Subject to Subsection (10), the
] 
(8) The
 office shall approve an application to an
applicant who is not denied under [
Subsection (5), (6), or (14).
] 
this section.
[
(8)
] 
(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 [
(12),
] 
(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 Subsection (7)
]
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 [
(12)
] 
(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 Subsection (7)
] 
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 [
Subsections (5) through (7)
] 
this section
.
[
(9)
] 
(10) (a)
 A licensee or department contractor may not permit an individual to have
direct access to a child or a vulnerable adult [
unless, subject to Subsection (10)
] 
without being
directly supervised unless
:
[
(a)
] 
(i)
 the individual is associated with the licensee or department contractor and 
the
department conducts a background screening in accordance with this section
[
:
]
;
[
(i) the individual's application is approved by the office under this section;
]
[
(ii) the individual's application is conditionally approved by the office under
Subsection (8); or
]
[
(iii) (A) the individual has submitted the background check information described in
Subsection (2) to the office;
]
[
(B) the office has not determined whether to approve the applicant's application; and
]
[
(C) the individual is directly supervised by an individual who has a current
background screening approval issued by the office under this section and is associated with
the licensee or department contractor;
]
[
(b) (i) the individual is associated with the licensee or department contractor;
]
[
(ii) the individual has a current background screening approval issued by the office
under this section;
]
[
(iii) one of the following circumstances, that the office has not yet reviewed under
Subsection (6), applies to the individual:
]
[
(A) the individual was charged with an offense described in Subsection (5)(a);
]
[
(B) the individual is listed in the Licensing Information System, described in Section
80-2-1002
;
]
[
(C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
database, described in Section 
62A-3-311.1
;
]
[
(D) the individual has a record in the juvenile court of a substantiated finding of
severe child abuse or neglect, described in Section 
80-3-404
; or
]
[
(E) the individual has a record of an adjudication in juvenile court for an act that, if
committed by an adult, would be a felony or a misdemeanor as described in Subsection (5)(a)
or (6); and
]
[
(iv) the individual is directly supervised by an individual who:
]
[
(A) has a current background screening approval issued by the office under this
section; and
]
[
(B) is associated with the licensee or department contractor;
]
[
(c) the individual:
]
[
(i) is not associated with the licensee or department contractor; and
]
[
(ii) is directly supervised by an individual who:
]
[
(A) has a current background screening approval issued by the office under this
section; and
]
[
(B) is associated with the licensee or department contractor;
]
[
(d)
] 
(ii)
 the individual is the parent or guardian of the child, or the guardian of the
vulnerable adult;
[
(e)
] 
(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;
[
(f)
] 
(iv)
 the individual is only permitted to have direct access to a vulnerable adult
who voluntarily invites the individual to visit; or
[
(g)
] 
(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.
[
(10) An individual may not have direct access to a child or a vulnerable adult if the
individual is prohibited by court order from having that access.
]
[
(11)
] 
(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.
[
(12)
] 
(11)
 (a) Within 30 days after the day on which [
the office receives the
background check information for an applicant, the office shall give notice of the clearance
status to:
] 
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.
[
(i) the applicant, and the licensee or department contractor, of the office's decision
regarding the background check and findings; and
]
[
(ii) the applicant of any convictions and potentially disqualifying charges and
adjudications found in the search.
]
[
(b) With the notice described in Subsection (12)(a), the office shall also give the
applicant the details of any comprehensive review conducted under Subsection (6).
]
[
(c)
] 
(b)
 If the notice under Subsection [
(12)(a)
] 
(11)(a)
 states that the applicant's
application is denied, the notice shall further advise the applicant that the applicant 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)
] 
(c)
 In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
Act, the office shall make rules, consistent with this chapter:
(i) defining procedures for the challenge of the office's background check decision
described in Subsection [
(12)(c)
] 
(11)(b)
; and
(ii) expediting the process for renewal of a license under the requirements of this
section and other applicable sections.
[
(13)
] 
(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)
 [
This
] 
The
 exemption 
described in Subsection (12)(a)
 does not extend to a program
director or a member, as defined by Section 
62A-2-108
, of the program.
[
(14)
] 
(13)
 (a) Except as provided in Subsection [
(14)(b),
] 
(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[
, an applicant for a one-time adoption,
] 
or
 an applicant seeking to [
provide a
prospective foster home, or an applicant seeking to provide a prospective adoptive home
]
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
[
parent
] or adoptive parent, to determine whether the prospective foster [
parent or prospective
]
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 [
(14)(a)(i)
] 
(13)(a)(i)
 resided in the five years
immediately preceding the day on which the applicant applied to be a foster [
parent
] 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 [
(14)(a)
] 
(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 [
(9),
] 
(10),
 the office shall deny a
clearance to an applicant seeking a position in a congregate care program[
, an applicant for a
one-time adoption,
] 
or
 an applicant to become a prospective foster [
parent, or an applicant to
become a prospective
] 
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 Section 
76-5b-201
] 
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
; [
or
]
(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 [
(14)(c)(i)
] 
(13)(c)(i)
.
(d) Notwithstanding Subsections (5) through [
(9),
] 
(10),
 the office shall deny a license
or license renewal to [
a
] 
an individual seeking a position in a congregate care program or a
prospective foster [
parent or a prospective
] 
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 [
applicant
] 
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)(a)
] 
(6)
, the office shall
conduct the comprehensive review of an applicant's background check [
pursuant to
] 
under
 this
section if the registry check described in Subsection [
(14)(a)
] 
(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 chapter, 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.
Section 5. Section 
62A-5-103.5
 is amended to read:
62A-5-103.5.
Disbursal of public funds -- Background check of a direct service
worker.
(1) For purposes of this section, "office" means the same as that term is defined in
Section 
62A-2-101
.
(2) Public funds may not be disbursed to pay a direct service worker for personal
services rendered to a person unless the office approves the direct service worker to have direct
access and provide services to a child or a vulnerable adult pursuant to Section 
62A-2-120
.
(3) For purposes of Subsection (2), the office shall conduct a background check of a
direct service worker:
(a) before public funds are disbursed to pay the direct service worker for the personal
services described in Subsection (2); and
(b) using the same procedures established for a background check of an applicant for a
license under Section 
62A-2-120
.
(4) A child who is in the legal custody of the department or any of the department's
divisions may not be placed with a direct service worker unless, before the child is placed with
the direct service worker, the direct service worker passes a background check[
, pursuant to the
requirements of Subsection 
62A-2-120
(14)
] 
under Section 
62A-2-120
.
(5) If a public transit district, as described in Title 17B, Chapter 2a, Part 8, Public
Transit District Act, contracts with the division to provide services:
(a) the provisions of this section are not applicable to a direct service worker employed
by the public transit district; and
(b) the division may not reimburse the public transit district for services provided
unless a direct service worker hired or transferred internally after July 1, 2013, by the public
transit district to drive a paratransit route:
(i) is approved by the office to have direct access to children and vulnerable adults in
accordance with Section 
62A-2-120
; and
(ii) is subject to a background check established in a statute or rule governing a public
transit district or other public transit district policy.
Section 6. 
 Coordinating H.B. 468 with H.B. 60 -- Technical and substantive
amendments.
If this H.B. 468 and H.B. 60, Juvenile Justice Modifications, both pass and become law,
it is the intent of the Legislature that when the Office of Legislative Research and General
Counsel prepares the Utah Code database for publication on October 1, 2023, Section
34-52-201
 be amended to read:
"
(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
:
(i)
 a past criminal conviction[
.
] 
or juvenile adjudication; or
(ii) if the applicant is a mental health professional applicant, an arrest for an offense
that occurred before the applicant was 18 years old;
(b) make an inquiry related to an applicant's expunged criminal or juvenile delinquency
history;
(c) when making a hiring decision regarding a mental health professional applicant,
consider:
(i) an arrest for an offense that occurred before the mental health professional applicant
was 18 years old;
(ii) an arrest not followed by a criminal conviction or juvenile adjudication;
(iii) a juvenile adjudication; or
(iv) a past criminal conviction if:
(A) the sentence for the criminal conviction is terminated; and
(B) the mental health professional applicant was not incarcerated for the past criminal
conviction or the mental health professional applicant's incarceration for the past criminal
conviction ended at least three years before the day on which the mental health professional
applicant applied for employment; 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)
 if the public employer:
[
(a) requires an applicant to disclose, on an employment application, a criminal
conviction;
]
[
(b) requires an applicant to disclose, before an initial interview, a criminal conviction;
or
]
[
(c) if no interview is conducted, requires an applicant to disclose, before making a
conditional offer of employment, a criminal conviction.
]
(a) requires an applicant to disclose a criminal conviction or juvenile adjudication:
(i) on an employment application;
(ii) before an initial interview; or
(iii) if no interview is conducted, before making a conditional offer of employment; or
(b) requires an applicant who is a mental health professional applicant to disclose an
arrest for an offense that occurred before the applicant was 18 years old:
(i) on an employment application;
(ii) before an initial interview; or
(iii) if no interview is conducted, before making a conditional offer of employment.
(3) 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;
or
(b) a past criminal conviction for a nonviolent drug offense if:
(i) the sentence for the criminal conviction is terminated; and
(ii) (A) the mental health professional applicant was not incarcerated for the past
criminal conviction; or
(B) the mental health professional applicant's incarceration for the past criminal
conviction ended at least three years before the day on which the mental health professional
applicant applied for employment.
[
(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 
or juvenile delinquency
 record as though the action
underlying the expunged criminal or 
juvenile delinquency
 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 
or
juvenile delinquency
 history during an initial interview or after an initial interview; or
(b) considering an applicant's 
criminal
 conviction 
or juvenile delinquency
 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 
or juvenile delinquency
 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 Services 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) 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.
(c) Subsections (1)(a)(ii), (1)(c), (1)(d), and (3) apply to a person under contract with a
public employer.".