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[Utah Code Table of Contents]
[TITLE 62a. Table of Contents]
62A-2-101 Definitions.
As used in this chapter:
(1) "Adult day care" means continuous care and supervision for three or more adults for at least four but less than 24 hours a day, that meets the needs of functionally impaired adults through a comprehensive program that provides a variety of health, social, recreational, and related support services in a protective setting.
(2) "Child" means a person under 18 years of age.
(3) "Child placing" means receiving, accepting, or providing custody or care for any child under 18 years of age, temporarily or permanently, for the purpose of:
(a) finding a person to adopt the child;
(b) placing the child temporarily or permanently in a home for adoption; or
(c) foster home placement.
(4) "Client" means an individual who receives or has received services from a human services licensee under this chapter.
(5) "Day treatment" means specialized treatment for less than 24 hours a day for four or more persons who are unrelated to the owner or provider and who have emotional, psychological, developmental, physical, or behavioral dysfunctions, impairments, or chemical dependencies. Day treatment is provided in lieu of, or in coordination with, a more restrictive residential or inpatient environment or service.
(6) "Department" means the Department of Human Services.
(7) "Direct access" means that an individual has, or likely will have, contact with or access to a child or vulnerable adult that provides the individual with an opportunity for personal communication or touch.
(8) "Director" means the director of the Office of Licensing.
(9) "Domestic violence treatment program" means a nonresidential program designed to provide psychological treatment and educational services to perpetrators and victims of domestic violence.
(10) "Elder adult" means a person 65 years of age or older.
(11) "Executive director" means the executive director of the department.
(12) "Human services licensee" or "licensee" means a youth program, resource family home, or a facility or program, licensed by the department, that provides care, secure treatment, inpatient treatment, residential treatment, residential support, adult day care, day treatment, outpatient treatment, domestic violence treatment, child placing services, or social detoxification.
(13) "Licensing board" means the Human Services Licensing Board.
(14) "Minor" has the same meaning as "child."
(15) "Office" means the Office of Licensing within the Department of Human Services.
(16) "Outpatient treatment" means individual, family, or group therapy or counseling designed to improve and enhance social or psychological functioning for those whose physical and emotional status allows them to continue functioning in their usual living environment.
(17) (a) "Person associated with the licensee" means an owner, director, member of the governing body, employee, provider of care, or volunteer of a human services licensee or of an applicant to become a licensee.
(b) Notwithstanding Subsection (17)(a), "person associated with the licensee" does not include an individual serving on either of the following bodies unless that individual has direct access to children or vulnerable adults:
(i) a local mental health authority under Section 17-43-301 or a local substance abuse authority under Section 17-43-201 ; or
(ii) a board of an organization operating under a contract to provide comprehensive mental health or substance abuse programs or services for the local mental health authority or substance abuse authority.
(18) "Residential support" means arranging for or providing the necessities of life as a protective service to individuals or families who are disabled or who are experiencing a dislocation or emergency which prevents them from providing these services for themselves or their families. Treatment is not a necessary component of residential support.
(19) "Residential treatment" means a 24-hour group living environment for four or more individuals unrelated to the owner or provider that offers room or board and specialized treatment, rehabilitation, or habilitation services for persons with emotional, psychological, developmental, or behavioral dysfunctions, impairments, or chemical dependencies. In residential treatment, individuals are assisted in acquiring the social and behavioral skills necessary for living independently in the community.
(20) "Resource family home" means a home licensed to provide services to a child in the custody of the state and includes a foster care home and a legal risk home.
(21) "Secure treatment" means 24-hour specialized residential treatment or care for persons whose current functioning is such that they cannot live independently or in a less restrictive environment. Secure treatment differs from residential treatment to the extent that it requires intensive supervision, locked doors, and other security measures which are imposed on residents with neither their consent nor control.
(22) "Social detoxification" means short-term residential services for persons who are intoxicated, that are provided outside of a health care facility licensed under Title 26, Chapter 21, Health Care Facility Licensure and Inspection Act, and that include:
(a) room and board for persons who are unrelated to the owner or manager of the facility;
(b) specialized rehabilitation to acquire sobriety; and
(c) aftercare services.
(23) "Unrelated persons" means persons other than parents, legal guardians, grandparents, brothers, sisters, uncles, or aunts.
(24) "Vulnerable adult" means an elder adult or an adult who has a mental or physical impairment that substantially affects the person's ability to:
(a) provide personal protection;
(b) provide necessities such as food, shelter, clothing, or mental or other health care;
(c) obtain services necessary for health, safety, or welfare;
(d) carry out the activities of daily living;
(e) manage the adult's own resources; or
(f) comprehend the nature and consequences of remaining in a situation of abuse, neglect, or exploitation.
(25) (a) "Youth program" means a nonresidential program, designed to provide behavioral, substance abuse or mental health services to minors that:
(i) serves either adjudicated or nonadjudicated youth;
(ii) charges a fee for its services;
(iii) may or may not provide host homes or other arrangements for overnight accommodation of the youth;
(iv) may or may not provide all or part of its services in the outdoors;
(v) may or may not limit or censor access to parents or guardians; and
(vi) prohibits or restricts a minor's ability to leave the program at any time of his own free will.
(b) "Youth program" does not include recreational programs
such as Boy Scouts, Girl Scouts, 4-H, and other such organizations.
2003
62A-2-102 Purpose of licensure.
The purpose of licensing under this chapter is to permit
or authorize a public or private agency to provide defined
human services programs within statutory and regulatory guidelines.
1998
62A-2-103 Office of Licensing - Appointment - Qualifications of director.
(1) There is created the Office of Licensing within the Department of Human Services. The office shall be the licensing authority for the department, and is vested with all the powers, duties, and responsibilities described in this chapter.
(2) The executive director shall appoint the director of the office.
(3) The director shall have a bachelor's degree from an
accredited university or college, be experienced in administration,
and be knowledgeable of human services licensing.
1998
62A-2-104 Human Services Licensing Board - Composition - Meetings - Expenses.
(1) There is established the Human Services Licensing Board consisting of the following nine members appointed by the executive director:
(a) one individual who represents child and family services licensees;
(b) one individual who represents disability services licensees;
(c) one individual who represents youth correction licensees;
(d) one individual who represents aging and adult services licensees;
(e) one individual who represents mental health services licensees;
(f) one individual who represents substance abuse services licensees; and
(g) three individuals who represent clients or the general public.
(2) (a) Except as required by Subsection (2)(b), as terms of current board members expire, the executive director shall appoint each new member or reappointed member to a four-year term.
(b) Notwithstanding the requirements of Subsection (2)(a), the executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of board members are staggered so that approximately half of the board is appointed every two years.
(c) The board shall annually elect a chair from its membership.
(3) When a vacancy occurs in the membership for any reason, the replacement shall be appointed for the unexpired term.
(4) The licensing board shall meet at least quarterly, or more frequently as determined by the director, the chair, or three or more members of the board. Five members constitute a quorum and a vote of the majority of the members present constitutes the action of the board.
(5) (a) Members shall receive no compensation or benefits for their services, but may receive per diem and expenses incurred in the performance of the member's official duties at the rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
(b) Members may decline to receive per diem and expenses
for their service.
1998
62A-2-105 Licensing board responsibilities.
(1) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the licensing board shall review and approve rules regarding:
(a) approving, denying, suspending, and revoking licenses for human services licensees and facilities;
(b) conditional licenses, variances from department rule, and exclusions;
(c) the protection of the basic health and safety of clients;
(d) licensing of all human services licensees that are required to be licensed under this chapter; and
(e) notification to providers and subproviders of rights and responsibilities including who to contact within the department when filing a complaint against a licensee or facility, and the responsibility of the department to follow up once contacted.
(2) The licensing board shall:
(a) define information that shall be submitted to the department with an application for a license;
(b) review and approve fees, in accordance with Section 63-38-3.2 , for licenses issued under this chapter;
(c) represent the community and the human services licensees; and
(d) advise the department as requested, concerning enforcement
of rules established under this chapter.
2003
62A-2-106 Office responsibilities.
The office shall:
(1) make rules to establish:
(a) basic health and safety standards for licensees, which shall be limited to the following:
(i) fire safety;
(ii) food safety;
(iii) sanitation;
(iv) infectious disease control;
(v) safety of the physical plant;
(vi) transportation safety;
(vii) emergency preparedness;
(viii) the administration of medical standards and procedures, consistent with the related provisions of this title; and
(ix) consumer safety and protection;
(b) minimum administration and financial requirements for licensees; and
(c) guidelines for variances from rules established under this Subsection (1);
(2) enforce rules:
(a) approved by the licensing board;
(b) in effect on January 1, 1998, that apply to a service or program for which a licensee is not under contract with a division listed in Section 62A-1-105 to provide until rules are established pursuant to Subsection (2)(c); and
(c) established after July 1, 1999, by a policymaking board created by Section 62A-1-105 which:
(i) shall be limited to:
(A) the administration and maintenance of client and service records;
(B) staff qualifications; and
(C) staff to client ratios; and
(ii) may only apply to a service or program for which a licensee is not under contract with a division listed in Section 62A-1-105 to provide;
(3) issue licenses in accordance with this chapter;
(4) conduct surveys and inspections of licensees and facilities in accordance with Section 62A-2-118 ;
(5) collect licensure fees;
(6) provide necessary administrative support to the licensing board;
(7) provide notification to licensee or facility, including providers and subproviders, of a person within the department to contact when filing a complaint;
(8) investigate complaints regarding any licensee or facility;
(9) have access to all records, correspondence, and financial data required to be maintained by a licensee or facility;
(10) have authority to interview any client, family member of a client, employee, or officer of a human services licensee or facility; and
(11) have authority to revoke, suspend, or extend any
license issued by the department under this chapter by following
the procedures and requirements of Title 63, Chapter 46b,
Administrative Procedures Act.
2003
62A-2-108 Licensure requirements - Expiration - Renewal.
(1) Except as provided in Section 62A-2-110 , no person, agency, firm, corporation, association, or governmental unit, acting severally or jointly with any other person, agency, firm, corporation, association, or governmental unit, may establish, conduct, or maintain a human services program or facility in this state without a valid and current license issued by and under the authority of the department as provided by this chapter and the rules of the licensing board.
(2) No license issued under this chapter is assignable or transferable.
(3) A current license shall at all times be posted in each human services program or facility, in a place that is visible and readily accessible to the public.
(4) (a) Each license issued under this chapter expires at midnight 12 months from the date of issuance unless it has been:
(i) previously revoked by the office; or
(ii) voluntarily returned to the office by the human services licensee.
(b) A license shall be renewed upon application and payment of the applicable fee, unless the office finds that the licensee or facility has not complied with the provisions of or rules made under this chapter.
(5) Any licensee or facility which is in operation at
the time rules are made in accordance with this chapter shall
be given a reasonable time for compliance as determined by
the rule.
1998
62A-2-108.1 Coordination of human services and educational services - Licensing of programs - Procedures.
(1) A human services program may not be licensed to serve children subject to compulsory education under Section 53A-11-101 or entitled to educational services under Section 53A-15-301 unless the program presents evidence satisfactory to the licensing authority and to the local school board of the school district in which the program will be operated that children served by the program shall receive appropriate educational services satisfying the requirements of applicable law.
(2) If the human services program is to be permitted to serve any children whose custodial parents or legal guardians reside outside the state, then the program shall also provide satisfactory evidence to the licensing authority and to the school district in which the program will be operated that all costs for educational services to be provided to those students, including tuition and school fees approved by the local school board, shall be borne by the program.
(3) If the local school board finds the educational service plan and the educational funding plan to be adequate, then the board shall provide the licensing authority with a letter of approval.
(4) If the local school board finds the educational service plan and the educational funding plan to be inadequate, then the board shall provide the licensing authority with a letter of disapproval, together with the specific requirements the human services program must meet before licensure is granted.
(5) Failure of a local school board to respond to a proposed plan within 45 days of receipt is equivalent to approval of the plan by the board.
(6) If a human services program fails to comply with its approved educational service plan or educational funding plan, then the licensing authority shall give the program notice of intent to revoke the licensure and, if the program continues its noncompliance for more than 30 days after receipt of notice, shall revoke the program's license.
(7) If a child whose custodial parent or legal guardian
resides within the state is provided with educational services
by a school district other than the school district in which
the custodial parent or legal guardian resides, then the
funding provisions of Section
53A-2-210
apply.
1997
62A-2-109 License application - Classification of information.
(1) An application for a license under this chapter shall be made to the office and shall contain information that the board determines is necessary in accordance with established rules.
(2) Information received by the office through reports
and inspections shall be classified as public in accordance
with Title 63, Chapter 2, Government Records Access and Management
Act.
1998
62A-2-110 Exclusions from chapter.
The provisions of this chapter do not apply to:
(1) a facility or program owned or operated by an agency of the United States government;
(2) a facility or program operated by or under an exclusive contract with the Department of Corrections;
(3) private individual or group counseling by a licensed practitioner; or
(4) a general acute hospital, small health care facility,
specialty hospital, nursing care facility, or other health
care facility licensed by the Department of Health under
Section
26-21-2
.
1998
62A-2-111 Adjudicative proceedings.
(1) Whenever the office has reason to believe that a human services licensee or facility is in violation of this chapter or rules made under this chapter, the office may commence adjudicative proceedings to determine the legal rights of the human services licensee or facility by serving notice of agency action in accordance with Title 63, Chapter 46b, Administrative Procedures Act.
(2) A human services licensee or individual may commence
adjudicative proceedings, in accordance with Title 63, Chapter
46b, Administrative Procedures Act, regarding all office
actions that determine the legal rights, duties, privileges,
immunities, or other legal interests of the human services
licensee or persons associated with the licensee, including
all office actions to grant, deny, revoke, suspend, withdraw,
or amend an authority, right, or license under this chapter.
1998
62A-2-112 Violations - Penalties.
If the office finds that a violation has occurred under Section 62A-2-111 , it may:
(1) deny, suspend, or revoke a license, if it finds that there has been a failure to comply with the rules approved by the board, or if it finds evidence of aiding, abetting, or permitting the commission of any illegal act; or
(2) restrict or prohibit new admissions to a human services
program or facility, if it finds that there has been a failure
to comply with rules approved by the board, or if it finds
evidence of aiding, abetting, or permitting the commission
of any illegal act in the human services facility.
1998
62A-2-113 License revocation - Suspension.
(1) If a license is revoked, the office may grant a new license after:
(a) satisfactory evidence is submitted to the office, evidencing that the conditions upon which revocation was based have been corrected; and
(b) inspection and compliance with all provisions of this chapter and applicable rules.
(2) The office may only suspend a license for a period of time which does not exceed the current expiration date of that license.
(3) When a license has been suspended, the office may completely or partially restore the suspended license upon a determination that the:
(a) conditions upon which the suspension was based have been completely or partially corrected; and
(b) interests of the public will not be jeopardized by
restoration of the license.
1998
62A-2-115 Injunctive relief and other legal procedures.
In addition to, and notwithstanding, any other remedy
provided by law the department may, in a manner provided
by law and upon the advice of the attorney general, who shall
represent the department in the proceedings, maintain an
action in the name of the state for injunction or other process
against any person or governmental unit to restrain or prevent
the establishment, management, or operation of a human services
program or facility in violation of this chapter or rules
approved by the board.
1998
62A-2-116 Violation - Criminal penalties.
A person who owns, establishes, conducts, maintains, manages,
or operates a human services facility in violation of this
chapter is guilty of a class A misdemeanor if the violation
endangers or harms the health, welfare, or safety of persons
participating in that program.
1998
62A-2-117 Licensure of tribal foster homes.
(1) The Indian Child Welfare Act, 25 U.S.C. Secs. 1901-1963, provides that tribes may develop and implement tribal foster home standards.
(2) The office shall license tribal foster homes according to standards developed and approved by the tribe, pursuant to the Indian Child Welfare Act, 25 U.S.C. Secs. 1901-1963.
(3) If the tribe has not developed standards, the office
shall license tribal foster homes pursuant to this chapter.
1998
62A-2-117.5 Foster care by a child's relative.
(1) In accordance with state and federal law, the division shall provide for licensure of a child's relative for foster or substitute care, when the child is in the temporary custody or custody of the Division of Child and Family Services. If it is determined that, under federal law, allowance is made for an approval process requiring less than full foster parent licensure proceedings for a child's relative, the division shall establish an approval process to accomplish that purpose.
(2) For purposes of this section:
(a) "Custody" and "temporary custody" mean the same as those terms are defined in Section 62A-4a-101 .
(b) "Relative" means the same as that term is defined
in Section
78-3a-307
.
2000
62A-2-118 Administrative inspections.
(1) The office may, for the purpose of ascertaining compliance with the provisions of this chapter, enter and inspect on a routine basis the facility of a licensee.
(2) Before conducting an inspection under Subsection (1), the office shall, after identifying the person in charge:
(a) give proper identification;
(b) request to see the applicable license;
(c) describe the nature and purpose of the inspection; and
(d) if necessary, explain the authority of the office to conduct the inspection and the penalty for refusing to permit the inspection as provided in Section 62A-2-116 .
(3) In conducting an inspection under Subsection (1), the office may, after meeting the requirements of Subsection (2):
(a) inspect the physical facilities;
(b) inspect records and documents;
(c) interview officers, employees, clients, family members of clients, and others; and
(d) observe the licensee in operation.
(4) An inspection conducted under Subsection (1) shall be during regular business hours and may be announced or unannounced.
(5) The human services licensee shall make copies of inspection reports available to the public upon request.
(6) The provisions of this section apply to on-site inspections
and do not restrict the office from contacting family members,
neighbors, or other individuals, or from seeking information
from other sources to determine compliance with the provisions
of this chapter.
1998
62A-2-119 Adoption of inspections, examinations, and studies.
The office may adopt an inspection, examination, or study
conducted by a public or private entity, as identified by
rule, to determine whether a licensee has complied with a
licensing requirement imposed by virtue of this chapter.
1998
62A-2-120 Criminal background checks.
(1) (a) An applicant for an initial license or a license renewal under this chapter shall submit to the department 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. This information for a given person associated with the licensee shall be submitted before that person is permitted to have direct access to children or vulnerable adults.
(b) The Criminal Investigations and Technical Services Division of the Department of Public Safety shall process that information to determine whether the individual has been convicted of any crime.
(c) If an individual has not lived in Utah for five years, 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.
(2) The department shall approve a person for whom identifying information is submitted under Subsection (1) to have direct access in the licensee program serving children or vulnerable adults if:
(a) the person is found to have no criminal history record; or
(b) (i) the only convictions in the person's criminal history record are:
(A) misdemeanors not involving any of the offenses described in Subsection (3); or
(B) infractions not involving any of the offenses described in Subsection (3); and
(ii) the date of the last conviction under Subsection (2)(b)(i) is more than five years before the date of the search.
(3) The department may not approve a person to have direct access in the licensee program serving children or vulnerable adults if the person has at any time been convicted of an offense, whether a felony, misdemeanor, or infraction, that was:
(a) identified as domestic violence, lewdness, assault, or battery;
(b) a violation of any pornography law, including sexual exploitation of a minor;
(c) prostitution;
(d) identified in Title 76, Utah Criminal Code, as an offense against the family or an offense against the person; or
(e) identified in Title 76, Utah Criminal Code, as a sexual offense.
(4) (a) If a person for whom identifying information is submitted under Subsection (1) is not approved by the department under Subsection (2) to have direct access in the licensee program serving children or vulnerable adults, the department shall conduct a comprehensive review of criminal and court records and related circumstances if a person for whom identifying information is submitted under Subsection (1):
(i) has been convicted at any time of any felony not listed in Subsection (3);
(ii) has been convicted within five years of the date of the search of:
(A) any misdemeanor not listed in Subsection (3); or
(B) any infraction not listed in Subsection (3); or
(iii) has been convicted at any time of a protective order or ex parte protective order violation under Section 76-5-18 or a similar statute in another state.
(b) The comprehensive review under Subsection (4)(a) shall include an examination of:
(i) the date of the offense;
(ii) the nature and seriousness of the offense;
(iii) the circumstances under which the offense occurred;
(iv) the age of the offender when the offense was committed;
(v) whether the offense was an isolated or repeated incident;
(vi) whether the offense 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 this Subsection (4), the department shall either approve or not approve the person who is the subject of the review to have direct access to children or vulnerable adults, based upon the determination of the department and the Human Services Licensing Board of whether or not granting approval would 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 department may make rules, consistent with this chapter, defining procedures for the comprehensive review described in this Subsection (4).
(5) (a) Within 30 days after receiving the identifying information for a person under Subsection (1), the department shall give written notice to the person and to the human services licensee or applicant with whom the person is associated of:
(i) the department's decision regarding its background screening clearance and findings; and
(ii) a listing of any convictions found in the search.
(b) With the notice described in Subsection (5)(a), the department shall also give to the person the details of any comprehensive review conducted under Subsection (4).
(c) If the notice under Subsection (5)(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 human services licensee or applicant with whom the person is associated, or both, may, pursuant to Subsection 62A-2-111 (2), request a hearing in the department's Office of Administrative Hearings, to challenge the department's decision.
(d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the department shall make rules, consistent with this chapter:
(i) defining procedures for the challenge of its background screening decision described in this Subsection (5); and
(ii) expediting the process for renewal of a license pursuant
to the requirements of this section and other applicable
sections.
2002
62A-2-121 Access to abuse and neglect information for licensing purposes.
(1) With respect to human services licensees, the department may access only the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-116.2 and juvenile court records under Subsection 78-3a-320 (4), for the purpose of:
(a) determining whether a person associated with a licensee, with direct access to children, is listed in the Licensing Information System or has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320 (1) and (2); and
(b) informing a licensee that a person associated with the licensee is listed in the Licensing Information System or has a substantiated finding by a juvenile court of a severe type of child abuse or neglect under Subsections 78-3a-320 (1) and (2).
(2) After receiving identifying information for a person under Subsection 62A-2-120 (1), the department shall process the information for the purposes described in Subsection (1).
(3) The department shall adopt rules under Title 63, Chapter
46a, Utah Administrative Rulemaking Act, consistent with
this chapter, defining the circumstances under which a person
who has direct access to children and who is listed in the
Licensing Information System or has a substantiated finding
by a court of a severe type of child abuse or neglect under
Subsections
78-3a-320
(1) and (2) may provide services to children.
2002
62A-2-122 Access to vulnerable adult abuse and neglect information for licensing purposes.
(1) With respect to human services licensees, the department may access the data base created by Section 62A-3-311.1 for the purpose of:
(a) determining whether a person associated with a licensee, with direct access to vulnerable adults, has a substantiated finding of abuse, neglect, or exploitation; and
(b) informing a licensee that a person associated with the licensee has a substantiated finding of abuse, neglect, or exploitation.
(2) After receiving identifying information for a person under Subsection 62A-2-120 (1), the department shall process the information for the purposes described in Subsection (1).
(3) The department shall adopt rules under Title 63, Chapter
46a, Utah Administrative Rulemaking Act, consistent with
this chapter and consistent with Section
62A-3-311.1
, defining the circumstances under which a person
who has direct access to vulnerable adults and who has a
substantiated finding of abuse, neglect, or exploitation
may provide services to vulnerable adults.
2002
