Amends, repeals, and adds to existing law to establish provisions regarding background checks conducted by the Department of Health and Welfare.

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 494 BY HEALTH AND WELFARE COMMITTEE AN ACT1 RELATING TO BACKGROUND CHECKS; AMENDING TITLE 56, IDAHO CODE, BY THE AD-2 DITION OF A NEW CHAPTER 25, TITLE 56, IDAHO CODE, TO DEFINE TERMS, TO3 PROVIDE AUTHORIZATION FOR CERTAIN BACKGROUND CHECKS AND TO ESTABLISH4 PROVISIONS REGARDING CONFIDENTIALITY, TO ESTABLISH PROVISIONS RE-5 GARDING RULES AND FEES, TO ESTABLISH PROVISIONS REGARDING INDIVIDUALS6 SUBJECT TO BACKGROUND CHECKS, TO ESTABLISH PROVISIONS REGARDING APPLI-7 CATIONS, TO ESTABLISH PROVISIONS REGARDING SUITABILITY FOR EMPLOYMENT,8 AND TO PROVIDE A LIMITATION ON LIABILITY; REPEALING SECTION 56-1004A,9 IDAHO CODE, RELATING TO CRIMINAL HISTORY AND BACKGROUND CHECKS; AMEND-10 ING SECTION 32-1805, IDAHO CODE, TO REVISE PROVISIONS REGARDING TEMPO-11 RARY CARE ASSISTANCE PROGRAM REQUIREMENTS; AMENDING SECTION 15-5-308,12 IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION13 15-5-311, IDAHO CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING SEC-14 TION 15-5-316, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE AND TO15 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 39-1105, IDAHO CODE, TO16 PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION 66-404, IDAHO CODE,17 TO PROVIDE CORRECT CODE REFERENCES AND TO MAKE TECHNICAL CORRECTIONS;18 AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.19

Be It Enacted by the Legislature of the State of Idaho:20

SECTION 1. That Title 56, Idaho Code, be, and the same is hereby amended21 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-22 ter 25, Title 56, Idaho Code, and to read as follows:23 CHAPTER 2524 BACKGROUND CHECKS25 56-2501. DEFINITIONS. As used in this chapter:26 (1) "Applicant" means an individual who has submitted to undergo a27 background check pursuant to this chapter.28 (2) "Application" means a request for a background check by an individ-29 ual required to undergo a background check pursuant to this chapter in which30 the applicant fully and completely discloses any convictions, pending crim-31 inal charges, or child or adult protection findings, and that authorizes the32 department to obtain information relating to the individual from available33 databases and sources.34 (3) "Background check" means a fingerprint-based check of an individ-35 ual's criminal record and other relevant records that may include informa-36 tion from the following:37 (a) The Idaho state police;38 (b) The federal bureau of investigation;39 (c) The central registry created in chapter 83, title 18, Idaho Code;40 (d) Idaho transportation department driving records;41

2 (e) Adult and child protection registries;1 (f) The nurse aide registry;2 (g) The United States department of health and human services office of3 the inspector general's list of excluded individual and entities; and4 (h) The records of other states and jurisdictions.5 (4) "Clearance" means a document issued by the department as the of-6 ficial determination of a completed background check with no disqualifying7 crimes or disqualifying records found.8 (5) "Denial" means a document issued by the department indicating that9 disqualifying crimes or disqualifying records were found but does not re-10 lease any criminal history record information as defined in 28 CFR 20.3(d).11 (6) "Department" means the department of health and welfare.12 (7) "Disqualifying crime" means a crime designated in a rule by the de-13 partment that results in an applicant's denial.14 (8) "Disqualifying record" means a record that is found by the depart-15 ment in the course of a background check that results in the issuance of a de-16 nial.17 56-2502. BACKGROUND CHECKS AUTHORIZED -- CONFIDENTIALITY. (1) The de-18 partment is authorized to conduct background checks of applicants pursuant19 to this chapter. To carry out the purposes of this chapter, the department20 shall submit fingerprints to the Idaho state police to process background21 checks through the state criminal history repository and the federal bureau22 of investigation.23 (2) The records and information obtained as part of any background24 check are confidential and shall not be disclosed by the department except as25 permitted under applicable state or federal law.26 56-2503. RULES AND FEES. (1) The department is authorized to promul-27 gate rules, subject to legislative approval, to carry out the purposes of28 this chapter, including rules enumerating disqualifying crimes, relevant29 records, and the administrative procedure for challenging a denial.30 (2) Except as otherwise provided in law, an applicant is responsible31 to pay the nonrefundable fee for any background check conducted pursuant to32 this chapter. The department is authorized to establish fees by administra-33 tive rule, subject to legislative approval, to carry out the purposes of this34 chapter.35 56-2504. INDIVIDUALS SUBJECT TO BACKGROUND CHECK. (1) The following36 individuals or classes of individuals, license applicants, certificate37 holders, members of vocations or professions, position holders, and any38 employees, contractors, agents, or volunteers for one of the listed entities39 or programs with direct access to children, elderly, or vulnerable adults40 shall be subject to a background check pursuant to this chapter:41 (a) Adoptive parent applicants under chapter 15, title 16, Idaho Code;42 (b) Children's agencies, children's residential care facilities,43 children's therapeutic outdoor programs, and licensed foster care un-44 der chapter 12, title 39, Idaho Code;45 (c) Licensed daycare facilities under chapter 11, title 39, Idaho Code;46 (d) Citizen review panel members under section 16-1647, Idaho Code;47

3 (e) The Idaho child care program under department rule;1 (f) Certified family homes under chapter 35, title 39, Idaho Code;2 (g) Home health agencies;3 (h) Personal assistance agencies;4 (i) Personal care services providers;5 (j) Residential care or assisted living facilities under chapter 33,6 title 39, Idaho Code;7 (k) Skilled nursing facilities and intermediate care facilities for8 individuals with intellectual disabilities under chapter 13, title 39,9 Idaho Code;10 (l) Temporary caregivers under chapter 18, title 32, Idaho Code;11 (m) Medicaid providers who are categorized by the department as high-12 risk pursuant to 42 CFR 455.450;13 (n) Home-based and community-based services;14 (o) The Idaho behavioral health plan under department rule;15 (p) Children's mental health services under chapter 24, title 16, Idaho16 Code;17 (q) Substance use disorder services under chapter 3, title 39, Idaho18 Code;19 (r) Adult behavioral health services under chapter 31, title 39, Idaho20 Code;21 (s) Developmental disabilities agencies;22 (t) Service coordinators and paraprofessionals under department rule;23 (u) Support brokers and community support workers under department24 rule;25 (v) Contracted nonemergency medical transport providers;26 (w) Emergency medical services personnel licensed under chapter 9, ti-27 tle 46, Idaho Code;28 (x) Court-appointed guardians and conservators under chapter 12, title29 15, Idaho Code, or chapter 4, title 66, Idaho Code;30 (y) Designated examiners and dispositioners under chapter 3, title 66,31 Idaho Code; and32 (z) Any other specific categories of individuals or classes of indi-33 viduals for whom the department requires a background check pursuant to34 Idaho law.35 (2) Employees, contractors, and volunteers of the department who re-36 quire a background check include those who:37 (a) Provide direct care services or have access to children, elderly,38 or vulnerable adults;39 (b) Are permitted access to federal tax information;40 (c) Conduct background checks; or41 (d) Are permitted access to confidential information or systems within42 the scope of their duties while investigating fraud, waste, or abuse.43 56-2505. APPLICATION. The department shall conduct a finger-44 print-based background check on any applicant required to undergo a back-45 ground check pursuant to this chapter who submits an application and pays46 the accompanying fee. An applicant must disclose any pertinent information47 regarding disqualifying crimes or disqualifying records.48

4 56-2506. SUITABILITY FOR EMPLOYMENT. An applicant's clearance1 through a background check pursuant to this chapter is not a determination2 of suitability for employment.3 56-2507. LIMITATION ON LIABILITY. The department or an employer that4 acts in reasonable reliance on the clearance determination of a background5 check of an applicant in making an employment decision is immune from liabil-6 ity for that decision when it is based on such clearance determination.7

SECTION 2. That Section 56-1004A, Idaho Code, be, and the same is hereby8 repealed.9

SECTION 3. That Section 32-1805, Idaho Code, be, and the same is hereby10 amended to read as follows:11 32-1805. TEMPORARY CARE ASSISTANCE PROGRAM REQUIREMENTS. (1) A tempo-12 rary care assistance program shall check against the state's sex offender13 registry operated by the Idaho state police and against the national sex of-14 fender public website operated by the United States department of justice15 that checks names and addresses in the registries before allowing someone16 to become a temporary caregiver within the program's service. The process17 must include a criminal history and background check conducted by the de-18 partment of health and welfare comparable to the background check processed19 for foster parents. The background check shall be fingerprint-based, re-20 quiring that the fingerprints of temporary caregivers be submitted to the21 federal bureau of investigation and the Idaho state police bureau of crimi-22 nal identification to complete a national criminal history background check23 Pursuant to chapter 25, title 56, Idaho Code, temporary caregivers shall be24 subject to a background check. The department of health and welfare shall25 not charge a fee for such background check.26 (2) The temporary caregiver's residence must be inspected annually by27 the affiliated temporary care assistance program.28 (3) The temporary care assistance program must disclose to any parent29 or guardian using its services that any delegation of parental rights and re-30 sponsibilities shall be made to a temporary caregiver, not to the temporary31 care assistance program itself.32

SECTION 4. That Section 15-5-308, Idaho Code, be, and the same is hereby33 amended to read as follows:34 15-5-308. VISITOR IN GUARDIANSHIP PROCEEDING. (1) A visitor is, with35 respect to guardianship proceedings, an individual with no personal inter-36 est in the proceedings and who meets the qualifications identified in Idaho37 supreme court rule. A visitor may either be an employee of or appointed by38 the court. If appointed, a visitor becomes an officer of the court.39 (2) A visitor must report to the court on the status of the person pro-40 posed to be under guardianship. All reports must be under oath or affirma-41 tion and must comply with Idaho supreme court rules.42 (3) A visitor shall be personally immune from any liability for acts,43 omissions or errors in the same manner as if such visitor were a volunteer or44 director under the provisions of section 6-1605, Idaho Code.45

5 (4) A visitor cannot serve as guardian ad litem. The visitor and the1 guardian ad litem for the person proposed to be under guardianship may not be2 members or employees of the same entity.3 (5) The visitor may request to order a criminal history and background4 check at the proposed guardian's expense on any individual who resides in or5 may frequent the residence of the person proposed to be under guardianship.6 Any such check shall be conducted pursuant to section 56-1004A(2) and (3)7 chapter 25, title 56, Idaho Code.8

SECTION 5. That Section 15-5-311, Idaho Code, be, and the same is hereby9 amended to read as follows:10 15-5-311. WHO MAY BE GUARDIAN -- PRIORITIES. (1) Any competent person,11 except as set forth hereafter, or a suitable institution may be appointed12 guardian of an incapacitated person.13 (2) The person preferred by the incapacitated person shall be appointed14 guardian unless good cause be shown why appointment of such person is con-15 trary to the best interests of the incapacitated person. If the incapaci-16 tated person is unable to express a preference, any previous expression, in-17 cluding a durable power of attorney for health care, may be considered by the18 court.19 (3) Persons who are not disqualified have priority for appointment as20 guardian in the following order:21 (a) The person preferred by the incapacitated person. The court shall22 always consider the wishes expressed by an incapacitated person as to23 who shall be appointed guardian;24 (b) The person(s) nominated as health care agent in a durable power of25 attorney for health care by the incapacitated person, in the order of26 priority set forth in such power;27 (c) The spouse of the incapacitated person;28 (d) An adult child of the incapacitated person;29 (e) A parent of the incapacitated person, including a person nominated30 by will or other writing signed by a deceased parent;31 (f) Any relative of the incapacitated person with whom he has resided32 for more than six (6) months prior to the filing of the petition;33 (g) A person nominated by the person who is caring for him or paying ben-34 efits to him.35 (4) No convicted felon, or person whose residence is the incapacitated36 person's proposed residence or will be frequented by the incapacitated per-37 son and is frequented by a convicted felon, shall be appointed as a guardian38 of an incapacitated person unless the court finds by clear and convincing ev-39 idence that such appointment is in the best interests of the incapacitated40 person.41 (5) No individual shall be appointed as guardian of an incapacitated42 person unless all of the following first occurs:43 (a) The proposed guardian has submitted to and paid for a criminal his-44 tory and background check conducted pursuant to section 56-1004A(2) and45 (3) chapter 25, title 56, Idaho Code;46 (b) Pursuant to an order of the court so requiring, any individual who47 resides in the incapacitated person's proposed residence has submit-48 ted, at the proposed guardian's expense, to a criminal history and back-49

6 ground check conducted pursuant to section 56-1004A(2) and (3) chapter1 25, title 56, Idaho Code;2 (c) The findings of such criminal history and background checks have3 been made available to the visitor and guardian ad litem by the depart-4 ment of health and welfare; and5 (d) The proposed guardian provided a report of his or her civil judg-6 ments and bankruptcies to the visitor, the guardian ad litem and all7 others entitled to notice of the guardianship proceeding pursuant to8 section 15-5-309, Idaho Code.9 (6) The provisions of paragraphs (a) and (d) of subsection (5) of this10 section shall not apply to an institution nor to a legal or commercial en-11 tity.12 (7) Each proposed guardian and each appointed guardian shall imme-13 diately report any change in his or her criminal history and any material14 change in the information required by subsection (5) of this section to the15 visitor, guardian ad litem, all others entitled to notice of the guardian-16 ship proceeding pursuant to section 15-5-309, Idaho Code, and to the court.17

SECTION 6. That Section 15-5-316, Idaho Code, be, and the same is hereby18 amended to read as follows:19 15-5-316. GUARDIAN AD LITEM -- RIGHTS AND POWERS. The guardian ad20 litem has the following rights and powers to fulfill the duties set forth in21 section 15-5-315, Idaho Code, which shall continue until the resignation of22 the guardian ad litem or until the court removes the guardian ad litem or no23 longer has jurisdiction, whichever occurs first.24 (1) The guardian ad litem shall have the right and power to file plead-25 ings, motions, memoranda and briefs on behalf of the ward, and to have all of26 the rights of the ward, whether conferred by statute, rule of court, or oth-27 erwise.28 (2) All parties to any proceeding under this chapter shall promptly no-29 tify the guardian ad litem, and the guardian's attorney, if any, of all hear-30 ings, staff hearings or meetings, investigations, depositions, and signifi-31 cant changes of circumstances of the ward.32 (3) Except to the extent prohibited or regulated by federal law, upon33 presentation of a copy of the order appointing the guardian ad litem, any34 person or agency, including, without limitation, any hospital, school or-35 ganization, department of health and welfare, doctor, nurse or other health36 care provider, psychologist, psychiatrist, police department, or mental37 health clinic, shall permit the guardian ad litem to inspect and copy perti-38 nent records relating to the ward necessary for the proceeding for which the39 guardian ad litem has been appointed.40 (4) The guardian ad litem may request, and the court may order whether41 in response to such request or otherwise, a criminal history and background42 check to be conducted at the proposed guardian's expense on any individual43 who resides in the ward's proposed residence. Any such check shall be con-44 ducted pursuant to section 56-1004A(2) and (3) chapter 25, title 56, Idaho45 Code.46

SECTION 7. That Section 39-1105, Idaho Code, be, and the same is hereby47 amended to read as follows:48

7 39-1105. CRIMINAL HISTORY CHECKS. (1) All owners, operators, and em-1 ployees of a daycare facility who have direct contact with children and all2 other individuals thirteen (13) years of age or older who have unsupervised3 direct contact with children or are regularly on the premises of a daycare4 facility shall complete and pass a criminal history and background check in5 conformance with section 56-1004A chapter 25, title 56, Idaho Code, at least6 every five (5) years.7 (2) Criminal history checks on those persons under eighteen (18) years8 of age shall include a check of the juvenile justice records of adjudications9 of the magistrate division of the district court, county probation services10 and department records as authorized by the minor and his parent or guardian.11 (3) Notwithstanding the provisions of section 39-1103, Idaho Code,12 which provide for exemption from the provisions of this chapter, any per-13 son who owns, operates or is employed by a private school for educational14 purposes for children four (4) through six (6) years of age or a private15 kindergarten shall comply with the provisions of this section.16

SECTION 8. That Section 66-404, Idaho Code, be, and the same is hereby17 amended to read as follows:18 66-404. PROCEEDINGS FOR APPOINTMENT OF GUARDIANS AND CONSERVA-19 TORS. (1) A person with a developmental disability or any person interested20 in his welfare may petition for a finding of legal disability or partial le-21 gal disability and appointment of a guardian or co-guardians, or conservator22 or co-conservators, or both.23 (2) The petition shall:24 (a) State the names and addresses of the persons entitled to notice un-25 der subsection (4) of this section;26 (b) Describe the impairments showing the respondent is developmentally27 disabled, the respondent's ability to receive, evaluate and communi-28 cate information, and the respondent's ability to manage financial re-29 sources and meet essential requirements for physical health or safety;30 (c) State the nature and scope of guardianship and/or conservatorship31 services sought;32 (d) Describe the respondent's financial condition, including signif-33 icant assets, income and ability to pay for the costs of judicial pro-34 ceedings; and35 (e) State if the appointment is made by will pursuant to section 15-5-36 301, Idaho Code, and the name(s) and address(es) of the person(s) named37 in the will to be guardian.38 (3) Upon filing of a petition, the court shall set a date for a hearing,39 appoint an attorney to represent the respondent in the proceedings unless40 the respondent has an attorney, and authorize an evaluation committee to ex-41 amine the respondent, interview the proposed guardians and/or conservators42 and report to the court in writing. All reports shall be under oath or affir-43 mation and shall comply with Idaho supreme court rules.44 (4) Notice of the time and place of the hearing on the petition together45 with a copy of the petition shall be served no less than fourteen (14) days46 before the hearing on:47 (a) The respondent;48

8 (b) The respondent's spouse, parents and adult children, or, if none,1 the respondent's closest relative, if any can be found; and2 (c) Any person who is currently serving as guardian, or conservator or3 who is providing care for the respondent.4 Notice shall be served personally if the person to be served can be found5 within the state. If the person to be served cannot be found within the6 state, service shall be accomplished by registered mail to such person's7 last known address.8 (5) The respondent is entitled to be present at the hearing in person,9 to present evidence, to call and cross-examine witnesses, and to see or hear10 all evidence in the proceeding.11 (6) At the hearing, the court shall:12 (a) Determine whether the respondent has a developmental disability;13 (b) Evaluate the respondent's ability to meet essential requirements14 for physical health or safety and manage financial resources;15 (c) Evaluate the ability of the proposed guardian and/or conservator16 to act in the respondent's best interests to manage the respondent's fi-17 nancial resources and meet essential requirements for the respondent's18 physical health or safety;19 (d) Determine the nature and scope of guardianship or conservatorship20 services necessary to protect and promote the respondent's well-being;21 (e) Evaluate the ability of the respondent or those legally responsible22 to pay the costs associated with the judicial proceedings and fix re-23 sponsibility therefor; and24 (f)(i) As an alternative to appointing one (1) guardian or25 one (1) conservator, the court may appoint no more than two (2)26 co-guardians or no more than two (2) co-conservators if the court27 finds:28 1. The appointment of co-guardians or co-conservators will29 best serve the interests of the person with a developmental30 disability; and31 2. The persons to be appointed as co-guardians or co-con-32 servators will work together cooperatively to serve the best33 interests of the person with a developmental disability.34 (ii) The parents of a person with a developmental disability35 shall have preference over all other persons for appointment as36 co-guardians or co-conservators, unless the court finds that the37 parents are unwilling to serve as co-guardians or co-conserva-38 tors, or are not capable of adequately serving the best interests39 of the person with a developmental disability; and40 (iii) If the court appoints co-guardians or co-conservators, the41 court shall also determine whether the co-guardians or co-conser-42 vators:43 1. May act independently;44 2. May act independently but must act jointly in specified45 matters; or46 3. Must act jointly.47 The determination by the court must be stated in the order of appointment and48 in the letters of guardianship or conservatorship.49

9 (7) No individual shall be appointed as guardian or conservator of an1 incapacitated person unless all of the following first occurs:2 (a) The proposed guardian or conservator has submitted to and paid for3 a criminal history and background check conducted pursuant to section4 56-1004A(2) and (3) chapter 25, title 56, Idaho Code;5 (b) In the case of a petition for guardianship and pursuant to an order6 of the court so requiring, any individual who resides in the inca-7 pacitated person's proposed residence has submitted, at the proposed8 guardian's expense, to a criminal history and background check con-9 ducted pursuant to section 56-1004A(2) and (3) chapter 25, title 56,10 Idaho Code;11 (c) The findings of such criminal history and background checks have12 been made available to the evaluation committee by the department of13 health and welfare; and14 (d) The proposed guardian or conservator provided a report of his or15 her civil judgments and bankruptcies to the evaluation committee and16 all others entitled to notice of the guardianship or conservatorship17 proceeding pursuant to subsection (4) of this section.18 (8) The provisions of paragraphs (a) and (d) of subsection (7) of this19 section shall not apply to an institution nor or to a legal or commercial en-20 tity.21 (9) Each proposed guardian and conservator and each appointed guardian22 and conservator shall immediately report any change in his or her criminal23 history and any material change in the information required by subsection24 (7) of this section to the evaluation committee, to all others entitled to25 notice of the guardianship or conservatorship proceeding pursuant to sub-26 section (4) of this section and to the court.27

SECTION 9. An emergency existing therefor, which emergency is hereby28 declared to exist, this act shall be in full force and effect on and after29 July 1, 2026.30