Bill Summary – FastDemocracy

Enrolled Copy                                                                            H.B. 218
                         REPORTING REQUIREMENT AMENDMENTS
                                        2021 GENERAL SESSION
                                            STATE OF UTAH
                                   Chief Sponsor: Brian S. King
                                 Senate Sponsor: Curtis S. Bramble
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 LONG TITLE
 General Description:
          This bill addresses reporting requirements for the abuse, neglect, or exploitation of
 certain individuals.
 Highlighted Provisions:
          This bill:
          < amends the reporting requirement for the suspected abuse, neglect, or exploitation
 of a vulnerable adult;
          < provides exceptions to the reporting requirement for suspected abuse, neglect, or
 exploitation of a vulnerable adult;
          < clarifies the physician-patient privilege in regards to reporting suspected abuse,
 neglect, or exploitation of a vulnerable adult;
          < requires Adult Protective Services to file a complaint in certain circumstances;
          < addresses civil and criminal liability for reporting, or failing to report, suspected
 abuse, neglect, or exploitation of a vulnerable adult to Adult Protective Services or
 the nearest police officer or law enforcement agency;
          < addresses prosecution for willful failure to report suspected abuse, neglect, or
 exploitation of a vulnerable adult;
          < amends the reporting requirement for the suspected abuse or neglect of a child;
          < provides exceptions to the reporting requirement for suspected abuse or neglect of a
 child;
          < clarifies the physician-patient privilege in regards to reporting suspected abuse or
 neglect of a child;
       H.B. 218                                                                         Enrolled Copy
          < requires the Division of Child and Family Services to file a complaint in certain
 circumstances;
          < addresses civil and criminal liability for reporting, or failing to report, suspected
 abuse or neglect of a child to the Division of Child and Family Services or the
 nearest police officer or law enforcement agency;
          < addresses prosecution for willful failure to report suspected abuse or neglect of a
 child;
          < makes it a crime for an individual to threaten, intimidate, or attempt to intimidate
 certain individuals when a report is made, or an investigation is being conducted, in
 regards to the abuse or neglect of a child;
          < repeals a statute with a reporting requirement for abuse, neglect, or exploitation of a
 vulnerable adult; and
          < makes technical and conforming changes.
 Money Appropriated in this Bill:
          None
 Other Special Clauses:
          None
 Utah Code Sections Affected:
 AMENDS:
          62A-3-305, as last amended by Laws of Utah 2012, Chapter 328
          62A-4a-403, as last amended by Laws of Utah 2020, Fifth Special Session, Chapter 20
          62A-4a-410, as last amended by Laws of Utah 2008, Chapters 382 and 395
          62A-4a-411, as last amended by Laws of Utah 2008, Chapter 299
          62A-4a-412, as last amended by Laws of Utah 2020, Chapters 193 and 258
 REPEALS:
          76-5-111.1, as last amended by Laws of Utah 2004, Chapter 50
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 Be it enacted by the Legislature of the state of Utah:
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       Enrolled Copy                                                                           H.B. 218
        Section 1. Section 62A-3-305 is amended to read:
        62A-3-305. Reporting requirements -- Investigation -- Exceptions -- Immunity --
 Penalties -- Nonmedical healing.
        [(1) A person who has reason to believe that a vulnerable adult has been the subject of
 abuse, neglect, or exploitation shall immediately notify Adult Protective Services intake or the
 nearest law enforcement agency. When the initial report is made to law enforcement, law
 enforcement shall immediately notify Adult Protective Services intake. Adult Protective
 Services and law enforcement shall coordinate, as appropriate, their efforts to provide
 protection to the vulnerable adult.]
        (1) Except as provided in Subsection (4), if an individual has reason to believe that a
 vulnerable adult is, or has been, the subject of abuse, neglect, or exploitation, the individual
 shall immediately report the suspected abuse, neglect, or exploitation to Adult Protective
 Services or to the nearest peace officer or law enforcement agency.
        (2) (a) If a peace officer or a law enforcement agency receives a report under
 Subsection (1), the peace officer or the law enforcement agency shall immediately notify Adult
 Protective Services.
        (b) Adult Protective Services and the peace officer or the law enforcement agency shall
 coordinate, as appropriate, efforts to investigate the report under Subsection (1) and to provide
 protection to the vulnerable adult.
        [(2)] (3) When [the initial report or] a report under Subsection (1), or a subsequent
 investigation by Adult Protective Services, indicates that a criminal offense may have occurred
 against a vulnerable adult:
        (a) Adult Protective Services shall notify the nearest local law enforcement agency
 regarding the potential offense; and
        (b) the law enforcement agency [may] shall initiate an investigation in cooperation
 with Adult Protective Services.
        [(3) A person who in good faith makes a report or otherwise notifies a law enforcement
 agency or Adult Protective Services of suspected abuse, neglect, or exploitation is immune
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        H.B. 218                                                                        Enrolled Copy
 from civil and criminal liability in connection with the report or other notification.]
        [(4) (a) A person who willfully fails to report suspected abuse, neglect, or exploitation
 of a vulnerable adult is guilty of a class B misdemeanor.]
        [(b) A covered provider or covered contractor, as defined in Section 26-21-201, that
 knowingly fails to report suspected abuse or neglect, as required by this section, is subject to a
 private right of action and liability for the abuse or neglect of another person that is committed
 by the individual who was not reported to Adult Protective Services in accordance with this
 section.]
        (4) Subject to Subsection (5), the reporting requirement described in Subsection (1)
 does not apply to:
        (a) a member of the clergy, with regard to any confession made to the member of the
 clergy while functioning in the ministerial capacity of the member of the clergy and without the
 consent of the individual making the confession, if:
        (i) the perpetrator made the confession directly to the member of the clergy; and
        (ii) the member of the clergy is, under canon law or church doctrine or practice, bound
 to maintain the confidentiality of that confession; or
        (b) an attorney, or an individual employed by the attorney, if knowledge of the
 suspected abuse, neglect, or exploitation of a vulnerable adult arises from the representation of
 a client, unless the attorney is permitted to reveal the suspected abuse, neglect, or exploitation
 of the vulnerable adult to prevent reasonably certain death or substantial bodily harm in
 accordance with Utah Rules of Professional Conduct, Rule 1.6.
        (5) (a) When a member of the clergy receives information about abuse, neglect, or
 exploitation of a vulnerable adult from any source other than confession of the perpetrator, the
 member of the clergy is required to report that information even though the member of the
 clergy may have also received information about abuse or neglect from the confession of the
 perpetrator.
        (b) Exemption of the reporting requirement for an individual described in Subsection
 (4) does not exempt the individual from any other efforts required by law to prevent further
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        Enrolled Copy                                                                             H.B. 218
 abuse, neglect, or exploitation of a vulnerable adult by the perpetrator.
         (6) (a) As used in this Subsection (6), "physician" means an individual licensed to
 practice as a physician or osteopath in this state under Title 58, Chapter 67, Utah Medical
 Practice Act, or Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
         (b) The physician-patient privilege does not:
         (i) excuse a physician from reporting suspected abuse, neglect, or exploitation of a
 vulnerable adult under Subsection (1); or
         (ii) constitute grounds for excluding evidence regarding a vulnerable adult's injuries, or
 the cause of the vulnerable adult's injuries, in any judicial or administrative proceeding
 resulting from a report under Subsection (1).
         (7) (a) An individual who in good faith makes a report under Subsection (1), or who
 otherwise notifies Adult Protective Services or a peace officer or law enforcement agency, is
 immune from civil and criminal liability in connection with the report or notification.
         (b) A covered provider or covered contractor, as defined in Section 26-21-201, that
 knowingly fails to report suspected abuse, neglect, or exploitation of a vulnerable adult to
 Adult Protective Services, or to the nearest peace officer or law enforcement agency, under
 Subsection (1), is subject to a private right of action and liability for the abuse, neglect, or
 exploitation of a vulnerable adult that is committed by the individual who was not reported to
 Adult Protective Services or to the nearest peace officer or law enforcement agency.
         (c) This Subsection (7) does not provide immunity with respect to acts or omissions of
 a governmental employee except as provided in Title 63G, Chapter 7, Governmental Immunity
 Act of Utah.
         (8) If Adult Protective Services has substantial grounds to believe that an individual
 has knowingly failed to report suspected abuse, neglect, or exploitation of a vulnerable adult in
 accordance with this section, Adult Protective Services shall file a complaint with:
         (a) the Division of Occupational and Professional Licensing if the individual is a health
 care provider, as defined in Section 62A-4a-404, or a mental health therapist, as defined in
 Section 58-6-102;
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        H.B. 218                                                                          Enrolled Copy
           (b) the appropriate law enforcement agency if the individual is a law enforcement
 officer, as defined in Section 53-13-103; and
           (c) the State Board of Education if the individual is an educator, as defined in Section
 53E-6-102.
           (9) (a) An individual is guilty of a class B misdemeanor if the individual willfully fails
 to report suspected abuse, neglect, or exploitation of a vulnerable adult to Adult Protective
 Services, or to the nearest peace officer or law enforcement agency under Subsection (1).
           (b) If an individual is convicted under Subsection (9)(a), the court may order the
 individual, in addition to any other sentence the court imposes, to:
           (i) complete community service hours; or
           (ii) complete a program on preventing abuse, neglect, and exploitation of vulnerable
 adults.
           (c) In determining whether it would be appropriate to charge an individual with a
 violation of Subsection (9)(a), the prosecuting attorney shall take into account whether a
 reasonable individual would not have reported suspected abuse, neglect, or exploitation of a
 vulnerable adult because reporting would have placed the individual in immediate danger of
 death or serious bodily injury.
           (d) Notwithstanding any contrary provision of law, a prosecuting attorney may not use
 an individual's violation of Subsection (9)(a) as the basis for charging the individual with
 another offense.
           (e) A prosecution for failure to report under Subsection (9)(a) shall be commenced
 within two years after the day on which the individual had knowledge of the suspected abuse,
 neglect, or exploitation and willfully failed to report.
           [(5)] (10) Under circumstances not amounting to a violation of Section 76-8-508, [a
 person who] an individual is guilty of a class B misdemeanor if the individual threatens,
 intimidates, or attempts to intimidate a vulnerable adult who is the subject of a report[, a
 witness, the person who made the report] under Subsection (1), the individual who made the
 report under Subsection (1), a witness, or any other person cooperating with an investigation
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        Enrolled Copy                                                                             H.B. 218
 conducted [pursuant to] in accordance with this chapter [is guilty of a class B misdemeanor].
        [(6)] (11) An adult is not considered abused, neglected, or a vulnerable adult for the
 reason that the adult has chosen to rely solely upon religious, nonmedical forms of healing in
 lieu of medical care.
        Section 2. Section 62A-4a-403 is amended to read:
        62A-4a-403. Reporting requirements -- Exceptions.
        [(1) (a) Except as provided in Subsection (2), when any individual, including an
 individual licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58, Chapter 67,
 Utah Medical Practice Act, has reason to believe that a child has been subjected to abuse or
 neglect, or observes a child being subjected to conditions or circumstances that would
 reasonably result in abuse or neglect, that individual shall immediately report the alleged abuse
 or neglect to the nearest peace officer, law enforcement agency, or office of the division.]
        [(b) (i) Upon receipt of a report described in Subsection (1)(a)]
        (1) Except as provided in Subsection (3), if an individual, including an individual
 licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58, Chapter 67, Utah Medical
 Practice Act, has reason to believe that a child is, or has been, the subject of abuse or neglect,
 or observes a child being subjected to conditions or circumstances that would reasonably result
 in abuse or neglect, the individual shall immediately report the suspected abuse or neglect to
 the division or to the nearest peace office or law enforcement agency.
        (2) (a) (i) If a peace officer or a law enforcement agency receives a report under
 Subsection (1), the peace officer or law enforcement agency shall immediately notify the
 nearest office of the division.
        (ii) [If an initial report of abuse or neglect is made to the division] If the division
 receives a report under Subsection (1), the division shall immediately notify the appropriate
 local law enforcement agency.
        [(c)] (b) (i) The division shall, in addition to the division's own investigation in
 accordance with Section 62A-4a-409, coordinate with the law enforcement agency on
 investigations [by law enforcement undertaken to investigate a report described in Subsection
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        H.B. 218                                                                        Enrolled Copy
 (1)(a)] undertaken by the law enforcement agency to investigate the report of abuse or neglect
 under Subsection (1).
        (ii) If a law enforcement agency undertakes an investigation of a [report described in
 Subsection (1)(a)] report under Subsection (1), the law enforcement agency [undertaking the
 investigation] shall provide a final investigatory report to the division upon request.
        [(2)] (3) Subject to Subsection [(3)] (4), the [notification] reporting requirement
 described in Subsection [(1)(a)] (1) does not apply to:
        (a) a member of the clergy, with regard to any confession made to the member of the
 clergy while functioning in the ministerial capacity of the member of the clergy and without the
 consent of the individual making the confession, if:
        [(a)] (i) the perpetrator made the confession directly to the member of the clergy; and
        [(b)] (ii) the member of the clergy is, under canon law or church doctrine or practice,
 bound to maintain the confidentiality of that confession[.]; or
        (b) an attorney, or an individual employed by the attorney, if the knowledge or belief of
 the suspected abuse or neglect of a child arises from the representation of a client, unless the
 attorney is permitted to reveal the suspected abuse or neglect of the child to prevent reasonably
 certain death or substantial bodily harm in accordance with Utah Rules of Professional
 Conduct, Rule 1.6.
        [(3)] (4) (a) When a member of the clergy receives information about abuse or neglect
 from any source other than confession of the perpetrator, the member of the clergy is required
 to report that information even though the member of the clergy may have also received
 information about abuse or neglect from the confession of the perpetrator.
        (b) Exemption of the reporting requirement for [a member of the clergy] an individual
 described in Subsection (3) does not exempt the [member of the clergy] individual from any
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