Bill Summary – FastDemocracy

LEGISLATIVE GENERAL COUNSEL                                               H.B. 495
Approved for Filing: J. Rogers 6                              3rd Sub. (Cherry)
         6 02-23-24 12:05 PM 6
                   Representative Karianne Lisonbee proposes the following substitute bill:
                      VULNERABLE POPULATION AMENDMENTS
                                        2024 GENERAL SESSION
                                             STATE OF UTAH
                                Chief Sponsor: Karianne Lisonbee
                                   Senate Sponsor: ____________
 6
 LONG TITLE
 General Description:
         This bill concerns protections for vulnerable populations.
 Highlighted Provisions:
         This bill:
         < defines terms;
         < modifies provisions relating to a monitoring device in the room of a resident of an
 assisted living facility and includes nursing home facilities;
         < requires fingerprint background checks for certain individuals who will have direct
 access to patients in certain health care facilities;
         < requires certain facilities to report certain incidents of abuse, neglect, or exploitation
 to the Department of Health and Human Services (department) and to the Division
 of Child and Family Services or a law enforcement agency;
         < requires, with an automatic repeal provision, the department to collect and compile          3rd Sub. H.B. 495
 all reported incidents of abuse, neglect, or exploitation at certain facilities and
 annually report the information to the Health and Human Services Interim
 Committee;
         < prohibits inmates convicted of a violent felony from receiving certain training while
 incarcerated; and
     *HB0495S03*
       3rd Sub. (Cherry) H.B. 495                                                 02-23-24 12:05 PM
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a special effective date.
 Utah Code Sections Affected:
 AMENDS:
        26B-2-236, as renumbered and amended by Laws of Utah 2023, Chapter 305
        26B-2-238, as renumbered and amended by Laws of Utah 2023, Chapter 305
        26B-2-240, as renumbered and amended by Laws of Utah 2023, Chapter 305
        63I-2-226 (Effective 07/01/24), as last amended by Laws of Utah 2023, Chapters 33,
 139, 249, 295, 310, and 465 and repealed and reenacted by Laws of Utah 2023,
 Chapter 329 and last amended by Coordination Clause, Laws of Utah 2023, Chapter
 329
        64-13-48, as enacted by Laws of Utah 2022, Chapter 144
 ENACTS:
        26B-2-243, Utah Code Annotated 1953
43
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 26B-2-236 is amended to read:
        26B-2-236. Monitoring device -- Installation, notice, and consent -- Admission
 and discharge -- Liability.
        (1) As used in this section:
        (a) "Facility" means an assisted living facility or a nursing care facility.
        (b) "Legal representative" means an individual who is legally authorized to make
 health care decisions on behalf of another individual.
        [(b)] (c) (i) "Monitoring device" means:
        (A) a video surveillance camera; or
        (B) a microphone or other device that captures audio.
        (ii) "Monitoring device" does not include:
        (A) a device that is specifically intended to intercept wire, electronic, or oral
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       02-23-24 12:05 PM                                                 3rd Sub. (Cherry) H.B. 495
 communication without notice to or the consent of a party to the communication; or
         (B) a device that is connected to the Internet or that is set up to transmit data via an
 electronic communication.
         [(c)] (d) "Resident" means an individual who receives health care from a facility.
         [(d)] (e) "Room" means a resident's private or shared primary living space.
         [(e)] (f) "Roommate" means an individual sharing a room with a resident.
         (2) A resident or the resident's legal representative may operate or install a monitoring
 device in the resident's room if the resident and the resident's legal representative, if any, unless
 the resident is incapable of informed consent:
         (a) notifies the resident's [assisted living] facility in writing that the resident or the
 resident's legal representative, if any:
         (i) intends to operate or install a monitoring device in the resident's room; and
         (ii) consents to a waiver agreement, if required by [an assisted living] a facility;
         (b) obtains written consent from each of the resident's roommates, and their legal
 representative, if any, that specifically states the hours when each roommate consents to the
 resident or the resident's legal representative operating the monitoring device; and
         (c) assumes all responsibility for any cost related to installing or operating the
 monitoring device.
         (3) [An assisted living] A facility shall not be civilly or criminally liable to:
         (a) a resident or resident's roommate for the operation of a monitoring device
 consistent with this part; and
         (b) any person other than the resident or resident's roommate for any claims related to
 the use or operation of a monitoring device consistent with this part, unless the claim is caused
 by the acts or omissions of an employee or agent of the [assisted living] facility.
         (4) (a) [An assisted living] A facility may not deny an individual admission to the
 facility for the sole reason that the individual or the individual's legal representative requests to
 install or operate a monitoring device in the individual's room.
         (b) [An assisted living] A facility may not discharge a resident for the sole reason that
 the resident or the resident's legal representative requests to install or operate a monitoring
 device in the individual's room.
         (c) A facility shall prohibit all employees of a facility from deactivating, repositioning,
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        3rd Sub. (Cherry) H.B. 495                                                 02-23-24 12:05 PM
 or otherwise interfering with the operation of a monitoring device in an individual's room.
        [(c) An assisted living facility may require the resident or the resident's legal
 representative to place a sign near the entrance of the resident's room that states that the room
 contains a monitoring device.]
        (5) Upon the request of a resident or the resident's legal representative, a facility may
 not inform the employees of the facility of the presence of the monitoring device in the
 individual's room.
        [(5)] (6) Notwithstanding any other provision of this part, an individual may not, under
 this part, operate a monitoring device in [an assisted living] a facility without a court order:
        (a) in secret; or
        (b) with an intent to intercept a wire, electronic, or oral communication without notice
 to or the consent of a party to the communication.
        Section 2. Section 26B-2-238 is amended to read:
        26B-2-238. Definitions for Sections 26B-2-238 through 26B-2-241.
        As used in this section and Sections 26B-2-239, 26B-2-240, and 26B-2-241:
        (1) "Clearance" means approval by the department under Section 26B-2-239 for an
 individual to have direct patient access.
        (2) "Covered body" means a covered provider, covered contractor, or covered
 employer.
        (3) "Covered contractor" means a person that supplies covered individuals, by contract,
 to a covered employer or covered provider.
        (4) "Covered employer" means an individual who:
        (a) engages a covered individual to provide services in a private residence to:
        (i) an aged individual, as defined by department rule; or
        (ii) a disabled individual, as defined by department rule;
        (b) is not a covered provider; and
        (c) is not a licensed health care facility within the state.
        (5) "Covered individual":
        (a) means an individual:
        (i) whom a covered body engages; and
        (ii) who may have direct patient access;
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       02-23-24 12:05 PM                                                 3rd Sub. (Cherry) H.B. 495
        (b) includes:
        (i) a nursing assistant, as defined by department rule;
        (ii) a personal care aide, as defined by department rule;
        (iii) an individual licensed to engage in the practice of nursing under Title 58, Chapter
 31b, Nurse Practice Act;
        (iv) a provider of medical, therapeutic, or social services, including a provider of
 laboratory and radiology services;
        (v) an executive;
        (vi) administrative staff, including a manager or other administrator;
        (vii) dietary and food service staff;
        (viii) housekeeping and maintenance staff; and
        (ix) any other individual, as defined by department rule, who has direct patient access;
 and
        (c) does not include a student, as defined by department rule, directly supervised by a
 member of the staff of the covered body or the student's instructor.
        (6) "Covered provider" means:
        (a) an end stage renal disease facility;
        (b) a long-term care hospital;
        (c) a nursing care facility;
        (d) a small health care facility;
        (e) an assisted living facility;
        (f) a hospice;
        (g) a home health agency; or
        (h) a personal care agency.
        (7) "Direct patient access" means for an individual to be in a position where the
 individual could, in relation to a patient or resident of the covered body who engages the
 individual:
        (a) cause physical or mental harm;
        (b) commit theft; or
        (c) view medical or financial records.
        (8) "Engage" means to obtain one's services:
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       3rd Sub. (Cherry) H.B. 495                                                   02-23-24 12:05 PM
        (a) by employment;
        (b) by contract;
        (c) as a volunteer; or
        (d) by other arrangement.
        (9) "Long-term care hospital":
        (a) means a hospital that is certified to provide long-term care services under the
 provisions of 42 U.S.C. Sec. 1395tt; and
        (b) does not include a critical access hospital, designated under 42 U.S.C. Sec.
 1395i-4(c)(2).
        (10) "Patient" means an individual who receives health care services from one of the
 following covered providers:
        (a) an end stage renal disease facility;
        (b) a long-term care hospital;
        (c) a hospice;
        (d) a home health agency; or
        (e) a personal care agency.
        (11) "Personal care agency" means a health care facility defined by department rule.
        (12) "Rap back system" means a system that enables authorized entities to receive
 ongoing status notifications of any criminal history reported on individuals who are registered
 in the system.
        [(12)] (13) "Resident" means an individual who receives health care services from one
 of the following covered providers:
        (a) a nursing care facility;
        (b) a small health care facility;
        (c) an assisted living facility; or
        (d) a hospice that provides living quarters as part of its services.
        [(13)] (14) "Residential setting" means a place provided by a covered provider:
        (a) for residents to live as part of the services provided by the covered provider; and
        (b) where an individual who is not a resident also lives.
        [(14)] (15) "Volunteer" means an individual, as defined by department rule, who
 provides services without pay or other compensation.
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        02-23-24 12:05 PM                                              3rd Sub. (Cherry) H.B. 495
        Section 3. Section 26B-2-240 is amended to read:
        26B-2-240. Department authorized to grant, deny, or revoke clearance --
 Department may limit direct patient access -- Clearance.
        (1) The definitions in Section 26B-2-238 apply to this section.
        (2) (a) As provided in this section, the department may grant, deny, or revoke clearance
 for an individual, including a covered individual.
        (b) The department may limit the circumstances under which a covered individual
 granted clearance may have direct patient access, based on the relationship factors under
 Subsection (4) and other mitigating factors related to patient and resident protection.
        (c) The department shall determine whether to grant clearance for each applicant for
 whom it receives:
        (i) the personal identification information specified by the department under
 Subsection (4)(b); and
        (ii) any fees established by the department under Subsection (9).
        (d) The department shall:
        (i) establish a procedure for obtaining and evaluating relevant information concerning
 covered individuals, including fingerprinting the applicant and submitting the prints to the
 Criminal Investigations and Technical Services Division of the Department of Public Safety for
 checking against applicable state, regional, and national criminal records files[.]; and
        (ii) require that a finding of clearance include a fingerprint-based criminal history
 background check in the databases described under Subsection (3)(a), including the inclusion
 of the individual's fingerprints in a rap back system.
        (3) The department may review the following sources to determine whether an
 individual should be granted or retain clearance, which may include:
        (a) Department of Public Safety arrest, conviction, and disposition records described in
 Title 53, Chapter 10, Criminal Investigations and Technical Services Act, including
 information in state, regional, and national records files;
        (b) juvenile court arrest, adjudication, and disposition records, as allowed under
 Section 78A-6-209;
        (c) federal criminal background databases available to the state;
        (d) the Division of Child and Family Services Licensing Information System described
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        3rd Sub. (Cherry) H.B. 495                                                02-23-24 12:05 PM
 in Section 80-2-1002;
        (e) child abuse or neglect findings described in Section 80-3-404;
        (f) the Division of Aging and Adult Services vulnerable adult abuse, neglect, or
 exploitation database described in Section 26B-6-210;
        (g) registries of nurse aids described in 42 C.F.R. Sec. 483.156;
        (h) licensing and certification records of individuals licensed or certified by the
 Division of Professional Licensing under Title 58, Occupations and Professions; and
        (i) the List of Excluded Individuals and Entities database maintained by the United
 States Department of Health and Human Services' Office of Inspector General.
        (4) The department shall adopt rules that:
        (a) specify the criteria the department will use to determine whether an individual is
 granted or retains clearance:
        (i) based on an initial evaluation and ongoing review of information under Subsection
 (3); and
        (ii) including consideration of the relationship the following may have to patient and
 resident protection:
        (A) warrants for arrest;
        (B) arrests;
        (C) convictions, including pleas in abeyance;
        (D) pending diversion agreements;
        (E) adjudications by a juvenile court under Section 80-6-701 if the individual is over
 28 years old and has been convicted, has pleaded no contest, or is subject to a plea in abeyance
 or diversion agreement for a felony or misdemeanor, or the individual is under 28 years old;
 and
        (F) any other findings under Subsection (3); and
        (b) specify the personal identification information that must be submitted by an
 individual or covered body with an application for clearance, including:
        (i) the applicant's Social Security number; and
        (ii) fingerprints.
        (5) For purposes of Subsection (4)(a), the department shall classify a crime committed
 in another state according to the closest matching crime under Utah law, regardless of how the
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        02-23-24 12:05 PM                                               3rd Sub. (Cherry) H.B. 495
 crime is classified in the state where the crime was committed.
          (6) The Department of Public Safety, the Administrative Office of the Courts, the
 Division of Professional Licensing, and any other state agency or political subdivision of the
 state:
          (a) shall allow the department to review the information the department may review
 under Subsection (3); and
          (b) except for the Department of Public Safety, may not charge the department for
 access to the inf