No. 28191 (New Rule): R501-14. Background Screening

DAR File No.: 28191
Filed: 09/01/2005, 10:01
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This new rule replaces existing Rules R501-14 and R501-18 in order to address the passage of H.B. 64, H.B. 79, and S.B. 107 during the 2005 general legislative session which enacts amendments to Sections 62A-2-101, 62A-2-120, 62A-2-121, and 62A-2-122. (DAR NOTE: H.B. 64 (2005) is found at UT L 2005 Ch 107, and was effective 05/02/2005. H.B. 79 (2005) is found at UT L 2005 Ch 60, and was effective 05/02/2005. S.B. 107 (2005) is found at UT L 2005 Ch 188, and was effective 05/02/2005.)

 

Summary of the rule or change:

This rule replaces existing Rules R501-14 and R501-18 in order to address the statutory amendments made in Sections 62A-2-101, 62A-2-120, 62A-2-121, and 62A-2-122 that specifically relate to criminal and abuse background screening of applicants associated with a human services licensee. The rule includes definitions, procedures, comprehensive review, and adds provisions for the screening of "direct service workers" and "personal care attendants" as defined in Sections 62A-5-101 and 62A-3-101, respectively.

 

State statutory or constitutional authorization for this rule:

Sections 62A-2-101, 62A-2-120, 62A-2-121, 62A-2-122, 62A-3-101, and 62A-5-101

 

Anticipated cost or savings to:

the state budget:

The anticipated costs to the state will be minimal if any at all. Potential costs are being absorbed in existing budgets.

 

local governments:

No impact is anticipated. This rule does not effect the cost of operation or enforcement by local government.

 

other persons:

There may be some costs passed on to the applicant for a background screening. Those requiring a nationwide background check are subject to a $24 fee assessed by the FBI.

 

Compliance costs for affected persons:

Costs for required background screens are borne by the existing state budget. The exception would be for those individuals required to submit for a nationwide background check, which requires a $24 fee (see "Other Persons" above).

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule creates no additional fiscal impact on businesses. There is, and has been, minimal fiscal impact on those businesses (licensee programs/facilities) that choose to financially assist their staff with the cost of nationwide background screens. This rule will not change that impact, nor does it impact any other businesses besides the licensee programs and facilities. Lisa-Michele Church, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Administration, Administrative Services, Licensing
120 N 200 W
SALT LAKE CITY UT 84103-1500

 

Direct questions regarding this rule to:

Jan Bohi at the above address, by phone at 801-538-4153, by FAX at 801-538-4553, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/17/2005

 

This rule may become effective on:

10/18/2005

 

Authorized by:

Ken Stettler, Director

 

 

RULE TEXT

R501. Human Services, Administration, Administrative Services, Licensing.

R501-14 Background Screening.

R501-14-1. Authority and Purpose.

1. This Rule is authorized by and implements Sections 62A-2-108.3, 62A-2-120, 62A-2-121, 62A-2-122, 62A-3-104.3, 62A-5-103.5, 78-30-3.5(2)(a), and 78-30-3.6.

2. This Rule establishes the circumstances under which an applicant may have direct access or provide services to a child or vulnerable adult when the person has a criminal history record, is listed in the Licensing Information System or the statewide database of the Division of Aging and Adult Services, or when juvenile court records show that a court made a substantiated finding under Section 78-3a-320 that the person committed a severe type of child abuse or neglect.

3. This Rule clarifies the standards for approving, denying, or revoking an applicant's background screening.

 

R501-14-2. Definitions.

1. "Abuse" may include "severe emotional abuse", "severe physical abuse", and "emotional or psychological abuse", as these terms are defined in Sections 62A-4a-101 and Section 62A-3-301.

2. "Applicant" means a person whose identifying information is submitted to the Department of Human Services Office of Licensing under Sections 62A-2-108.3, 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78-30-3.5(2)(a), and 78-30-3.6.

3. "BCI" means the Bureau of Criminal Identification, and is the designated state agency of the Division of Criminal Investigation and Technical Services Division, within the Department of Public Safety, responsible to maintain criminal records in the State of Utah.

4. "Child" is defined in Section 62A-2-101.

5. "Comprehensive Review Committee" means the Committee appointed to conduct comprehensive reviews in accordance with Section 62A-2-120.

6. "Direct Access" is defined in Section 62A-2-101.

7. "Direct Service Worker" is defined in Section 62A-5-101.

8. "Directly supervised" is defined in 62A-2-120(5).

9. "Human services program" is defined in Section 62A-2-101.

10. "Identifying information" means an applicant's:

a. current and former names, aliases, and addresses,

b. date of birth,

c. social security number, and

d. a current, valid state driver's license or state identification card bearing the applicant's photo, current name, and address; and

e. Identifying information includes an applicant's fingerprints when required by law or rule, certified copies of applicable court records, and other records specifically requested by the Office of Licensing.

11. "Licensing Information System" is created by Section 62A-4a-116.2, as a sub-part of the Division of Child and Family Services' Management Information System created by Section 62A-4a-116.

12. "Neglect" may include "severe neglect", as these terms are defined in Sections 62A-4a-101 and 62A-3-301.

13. "Personal Care Attendant" is defined in Section 62A-3-101.

14. "Statewide Database" of the Division of Aging and Adult Services is created by Section 62A-3-311.1 to maintain reports of vulnerable adult abuse, neglect, or exploitation.

15. "Substantiated" is defined in Sections 62A-3-301 and 62A-4a-101.

16. "Supported" is defined in Section 62A-4a-101.

17. "Vulnerable Adult" is defined in Section 62A-2-101.

 

R501-14-3. Background Screening Procedure.

1.a.i. An applicant for initial background screening shall legibly complete, date and sign a background screening application and consent on a form provided by the Office of Licensing, and attach all required identifying information.

ii. an applicant for annual background screening renewal shall legibly complete, date and sign a background screening application and consent on a form provided by the Office of Licensing, and attach all required identifying information.

A. an applicant for annual background screening renewal shall submit a background screening application and identifying information no sooner than sixty days and no later than fourteen days preceding the expiration date of the current background screening approval.

iii. an applicant shall disclose all criminal charges, including pending charges, and all supported or substantiated findings of abuse, neglect or exploitation on the background screening application.

b.i. An applicant for background screening who has not continuously lived in Utah for the five years immediately preceding the day the application is submitted shall attach two completed ten-print fingerprint cards, and a cashiers' check or money order for the cost of a FBI national criminal history record check, to the background screening application.

A. an applicant for annual background screening renewal who has continuously lived in Utah at all times since the date of the initial background screening approval is not required to attach fingerprint cards or a cashiers' check or money order for the cost of a FBI national criminal history record check to the renewal application.

B. the Office of Licensing shall only accept ten-print fingerprint cards completed by a law enforcement agency or an agency approved by the BCI.

ii. an applicant who has lived outside of the United States during the five years immediately preceding the date of the application shall also attach an original or certified copy of:

A. a criminal history report from each country lived in;

B. a letter of honorable release from U.S. military or full-time ecclesiastical service, from each country lived in; or

C. other written verification of criminal history from each country lived in, as approved by the Office of Licensing Background Screening Unit supervisor.

c. i. an applicant shall submit the completed application and consent form, and all required identifying information, to the applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only).

ii. the applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), Area Agency on Aging (for Personal Care Attendant applicants only), or Division of Services for People With Disabilities (for Direct Service Worker applicants only), shall:

A. inspect the applicant's state driver's license or state identification card and make a good faith effort to determine that it does not appear to have been forged or altered;

B. inspect the copy of applicant's state driver's license or state identification card and make a good faith effort to determine that it appears to be identical to the original; and

C. forward the inspected copy of applicant's state driver's license or state identification card, the completed application and consent form, and all other required identifying information, to the Office of Licensing background screening unit within three business days after the applicant completes and signs the application.

d.i. an application that is illegible, incomplete, unsigned, undated, or lacks a signed consent or required identifying information, may be returned to the individual who submitted it without further action.

ii. an application that is submitted later than three business days after the applicant completes and signs the application may be returned to the individual who submitted it without further action.

iii. an application for annual background screening renewal that is signed or submitted sooner than sixty days preceding the expiration date of the current background screening approval, as required by subsection (1)(a)(ii)(A), may be returned to the individual who submitted it without further action.

2.a. Identifying information submitted pursuant to Sections 62A-2-108.3, 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78-30-3.5(2)(a), and 78-30-3.6 shall be used to search criminal history records, the Licensing Information System, juvenile court records under Section 78-3a-320, and the statewide database.

b. In accordance with Section 62A-5-103.5, a direct service worker who is a direct ancestor or descendant, or who is an aunt, uncle or sibling of the person to whom services are rendered, shall be exempt from a criminal history record search, but shall remain subject to a search of the Licensing Information System, juvenile court records under Section 78-3a-320, and the statewide database.

3.a. Except as permitted by Section 62A-2-120(5), an applicant for an initial background screening shall have no direct access to a child or vulnerable adult prior to receiving written confirmation of background screening approval from the Office of Licensing.

b. Except as permitted by Section 62A-2-120(5), an applicant seeking annual background screening renewal shall have no direct access to a child or vulnerable adult after the background screening expiration date and prior to receiving written confirmation of background screening approval from the Office of Licensing.

4. Upon receipt of a signed, legible, completed application and identifying information, the Office of Licensing shall:

a. investigate and make a preliminary determination of whether the applicant has been charged with any crime and the disposition of any charges; and

b. search the Licensing Information System, juvenile court records, and the statewide database, and make a preliminary determination of whether the applicant has any supported or substantiated findings of abuse, neglect or exploitation.

5.a. The Office of Licensing may defer action on an application until the applicant submits all additional information required by the Office of Licensing.

b. The Office of Licensing may deny an application in the event that an applicant fails to provide all additional information required by the Office of Licensing.

6. The Office of Licensing may notify an applicant of its preliminary determination that the applicant may have a criminal history outside of Utah, and require an applicant to:

a. submit ten-print fingerprint cards completed by a law enforcement agency or an agency approved by the BCI, and a cashier's check or money order for the cost of a nationwide criminal history check, within 15 calendar days of a letter of notification;

b. obtain and submit a certified copy of the applicant's criminal history or records from local, state, federal, or foreign officials within 15 calendar days of a letter of notification.

7. An applicant has not continuously lived in Utah for the five years immediately preceding the date of the application if the applicant has spent four or more consecutive weeks outside Utah, including but not limited to education, volunteer or employment activities, military duty, vacations, or when the applicant maintains an out-of-state driver's license.

8.a. The Office of Licensing shall send all written communications to the applicant or to the applicable human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only) by first-class mail.

b. A human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only) shall provide the applicant with a copy of all written communication from the Office of Licensing within 5 calendar days after the date it is received.

9. The applicant shall promptly notify the Office of Licensing of any change of address while the application remains pending.

 

R501-14-4. Results of Screening.

1.a. The Office of Licensing shall approve an application for background screening in accordance with Section 62A-2-120(2).

i. The Office of Licensing shall notify the applicant, the applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only), that the applicant's background screening application is approved.

ii. The approval granted by the Office of Licensing shall be valid for a period not to exceed one calendar year from the date of approval.

iii. Regardless of the application date, an applicant for background screening who is associated with a licensed program shall have an approval expiration date that is 30 calendar days prior to the expiration date of the associated human services program's license.

b. An approval granted by the Office of Licensing shall not be transferable.

i. A new application shall be submitted each time an applicant may have direct access or provide services to a child or vulnerable adult at any human services program other than the program identified on the initial application.

2. The Office of Licensing shall deny an application for background screening in accordance with Section 62A-2-120(3).

3. The Office of Licensing shall refer an application to the Comprehensive

Review Committee for a comprehensive review in accordance with Section 62A-2-120(4).

 

R501-14-5. Comprehensive Review Committee.

1. The Director of the following Department of Human Services divisions and offices shall appoint one member and one alternate to serve on the Comprehensive Review Committee:

a. the Executive Director's Office;

b. the Division of Aging and Adult Services;

c. the Division of Child and Family Services;

d. the Division of Juvenile Justice Services;

e. the Division of Services for People with Disabilities;

f. the Division of Substance Abuse and Mental Health;

g. Public Guardian; and

h. the Office of Licensing.

2. Comprehensive Review Committee members and alternates shall be professional staff persons who are familiar with the programs they represent.

3. The appointed Office of Licensing member shall chair the Comprehensive Review Committee as a non-voting member.

4. Five voting members shall constitute a quorum.

5. The Comprehensive Review Committee shall conduct a comprehensive review of an applicant's background screening application, criminal history records, abuse, neglect or exploitation records, and related circumstances, in accordance with Section 62A-2-120(4).

 

R501-14-6. Comprehensive Review Investigation.

1. The Comprehensive Review Committee shall not deny a background screening application without the Office of Licensing first sending the applicant a written notice that:

a. the Office is investigating the applicant's criminal history or findings of abuse, neglect or exploitation;

b. the applicant is encouraged to submit any written statements or records that the applicant wants the Comprehensive Review Committee to consider;

c. the Comprehensive Review Committee evaluates information using the criteria established by Section 62A-2-120(4)(b), and the applicant may specifically address these issues; and

d. submissions must be received within 15 calendar days of the written notice.

2. a. The Office of Licensing shall gather information described in Section 62A-2-120(4)(b) and provide available information to the Comprehensive Review Committee.

b. The Office of Licensing may request additional information from any available source, including the applicant, victims, witnesses, investigators, the criminal justice system, law enforcement agencies, the courts and any others it deems necessary for the comprehensive evaluation of an application.

i. The Office of Licensing may defer action on an application until the applicant submits all additional information required by the Office of Licensing.

ii. The Office of Licensing may deny an application in the event that an applicant fails to provide all additional information required by the Office of Licensing.

 

R501-14-7. Comprehensive Review Determination.

1. The Comprehensive Review Committee shall only consider applications presented by the Office of Licensing. The Comprehensive Review Committee shall evaluate the information provided by the Office of Licensing and any information provided by the applicant.

2. The Comprehensive Review Committee shall recommend approval of the background screening of an applicant with a criminal history only after a simple majority of the voting members of the Comprehensive Review Committee determines that approval will not likely create a risk of harm to a child or vulnerable adult.

3. The Comprehensive Review Committee shall recommend approval of the background screening of an applicant when juvenile court records show that a court made a substantiated finding under Section 78-3a-320 that the applicant committed a severe type of child abuse or neglect, the applicant is listed in the Licensing Information System, or the applicant has a substantiated finding of vulnerable adult abuse, neglect, or exploitation in the statewide database, only after a simple majority of the voting members of the Comprehensive Review Committee determines that the applicant was a child at the time of the incident that is being considered, more than ten years have passed since the date of the incident, and approval will not likely create a risk of harm to a child or vulnerable adult.

4. The Comprehensive Review Committee shall recommend denial of the background screening of an applicant when:

a. juvenile court records show that a court made a substantiated finding under Section 78-3a-320 that the applicant committed a severe type of child abuse or neglect, and the applicant was eighteen years of age or older at the time of the incident;

b. juvenile court records show that a court made a substantiated finding under Section 78-3a-320 that the applicant committed a severe type of child abuse or neglect, the applicant was under the age of eighteen at the time of the incident, and less than ten years have passed since the date of the incident;

c. the applicant is listed in the Licensing Information System, and the applicant was eighteen years of age or older at the time of the incident;

d. the applicant is listed in the Licensing Information System, the applicant was under the age of eighteen at the time of the incident, and less than ten years have passed since the date of the incident;

e. the applicant is listed in the statewide database, has a substantiated finding of vulnerable adult abuse, neglect, or exploitation, and the applicant was eighteen years of age or older at the time of the incident;

f. the applicant is listed in the statewide database, has a substantiated finding of vulnerable adult abuse, neglect, or exploitation, the applicant was under the age of eighteen at the time of the incident, and less than ten years have passed since the date of the incident; or

g. it finds that approval will likely create a risk of harm to a child or vulnerable adult.

5. The Office of Licensing shall approve or deny the applicant's background screening application in accordance with the recommendation of the Comprehensive Review Committee, and send written notification to the applicant, the applicant's licensing specialist, the licensed human services program the applicant is associated with (if any), a certified local inspector applicant's local government employer (if any), a person described in Subsections 62A-3-101(9)(a)(i) through (iv) (if any), or a direct service worker's employer (if any).

6. A background screening approval shall be valid for a period not to exceed one calendar year from the date of approval. Regardless of the application date, an applicant for background screening who is associated with a licensed program shall have an approval expiration date that is 30 calendar days prior to the expiration date of the associated human services program's license.

7. An approval granted by the Office of Licensing shall not be transferable.

a. a new application shall be submitted each time an applicant may have direct access or provide services to a child or vulnerable adult at any human services program other than the program identified on the initial application.

 

R501-14-8. Post-Approval Responsibilities.

1. An applicant, a human services program the applicant is associated with (if any), a certified local inspector applicant's local government employer (if any), a person described in Subsections 62A-3-101(9)(a)(i) through (iv) (if any), and a direct service worker's employer (if any), shall immediately notify the Office of Licensing if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records under Section 78-3a-320, or the statewide database after a background screening application is approved.

a. An applicant who is associated with a human services program shall immediately notify the human services program if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records under Section 78-3a-320, or the statewide database.

2. An applicant who has received an approved background screening shall resubmit an application and identifying information to the Office of Licensing within ten calendar days after being charged with any felony, misdemeanor, or infraction, or being listed in the Licensing Information System, the statewide database, or juvenile court records under Section 78-3a-320.

3. An applicant who has been charged with any felony, misdemeanor, or infraction or listed in the Licensing Information System or the statewide database, or juvenile court records under Section 78-3a-320, after a background screening application is approved shall have no unsupervised direct access to a child or vulnerable adult until after an application and identifying information have been resubmitted to the Office of Licensing and a current background screening approval is received from the Office of Licensing.

4.a. An applicant charged with an offense for which there is no final disposition shall inform the Office of Licensing of the current status of each case.

b. The Office of Licensing shall determine whether the charge could require a denial or committee review, and if so, notify the applicant to submit a certified copy of judicial documentation that indicates the current status of the case at least once every 3 months until final disposition.

c. An applicant shall submit a certified copy of judicial documentation that indicates the current status of the case at least once every 3 months until final disposition.

5. The Office of Licensing may revoke the background screening approval of an applicant who:

a. has been charged with any felony, misdemeanor, or infraction or is listed in the Licensing Information System, the statewide database, or juvenile court records under Section 78-3a-320; or

b. fails to provide required current status information; and

c. will likely create a risk of harm to a child or vulnerable adult, as determined by the Office of Licensing.

6. The Office of Licensing shall process identifying information received pursuant to R501-14-8.2 in accordance with R501-14.

 

R501-14-9. Confidentiality.

1. The Office of Licensing may disclose criminal background screening information, including information acknowledging the existence or non-existence of a criminal history, only to the Applicant, the applicable human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only), and in accordance with the Government Records Access and Management Act, Section 63-2-101, et seq.

2. Background screening approvals may not be transferred or shared between human service programs.

 

R501-14-10. Retention of Background Screening Information.

A human services program shall retain the background screening information of all individuals associated with the program for a minimum of three years after the termination of the individual's association with the program.

 

R501-14-11. Expungement.

An applicant whose background screening application has been denied due to the applicant's criminal record may submit a new application with a certified copy of an Order of Expungement.

 

R501-14-12. Administrative Hearing.

A notice of agency action that denies or revokes the applicant's background screening application shall inform the applicant of the right to appeal in accordance with Administrative Rule 497-100 and Section 63-46b-0.5, et seq.

 

R501-14-13. Compliance.

Any licensee that is in operation on the effective date of this rule shall be given 30 days after the effective date to achieve compliance with this rule.

 

KEY: licensing, background screening

2005

62A-2-108 et seq.