No. 43719 (Emergency Rule): Rule R495-885. Employee Background Screenings

DAR File No.: 43719
Filed: 05/14/2019 02:18:20 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Utah made changes to Section 62A-2-120 (the statute governing background screenings) via S.B. 128 in the 2019 General Session. These statutory changes align with Federal Legislation from the Families First Prevention Services Act currently in effect regarding background screenings for employees in youth residential settings. This filing aligns this rule with federal and state statutes.

Summary of the rule or change:

These amendments, in accordance with the Subsection R501-14-3(4), add the requirement for state employees applying to work in a youth residential program to obtain out of state child abuse and neglect registry records from each state they have resided in during the past five years. Further rule changes are associated with this requirement.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: The Families First Prevention Services Act went into effect in February 2019 and requires all states to be compliant with the background screening requirements set within. Because Utah's compliance hinged on a statutory change, this rule couldn't be implemented until the statute changes went into effect today, 05/14/2019. The proposed amendment for this rule is already out for public comment, but the Department of Human Services (DHS) promised to be in compliance at the earliest possible date, which would be 05/14/2019 with this emergency filing. (EDITOR'S NOTE: The corresponding proposed amendment to Rule R495-885 is under Filing No. 43690 published in the May 15, 2019, Utah State Bulletin.)

Statutory or constitutional authorization for this rule:

• Section 62A-2-120

Anticipated cost or savings to:

the state budget:

The state of Utah will not incur any costs with this change due to the fact that the employee applicants who have resided out of state in the past five years will be responsible for incurring the cost of obtaining their own registry checks from other states.

local governments:

This rule only governs DHS employees. There is no anticipated cost or savings to local governments.

small businesses:

This rule only governs DHS employees. There is no anticipated cost or savings to small businesses.

persons other than small businesses, businesses, or local governmental entities:

It is impossible to estimate how many employees applying to work in youth residential settings have lived out-of-state within the past five years. The employees will be held responsible for any fees associated with the cost (if any). The cost is inestimable as a result of not knowing how many individuals will apply and from which states (if any) they have resided in the past five years.

Compliance costs for affected persons:

Compliance costs will depend on each state and the amount of states lived in over the past five years. The cost is inestimable as a result of not knowing how many individuals will apply and from which states (if any) they have resided in the past five years. The cost is estimated to be negligible as many states don't charge fees or haven't implemented fees to accommodate this federal legislation requirement.

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

After conducting a thorough analysis, it was determined that this filing will not result in a fiscal impact to businesses.

Ann Williamson, Executive Director

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

Human Services
Administration
Room DHS ADMINISTRATIVE OFFICE MULTI STATE OFFICE BUILDING
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Janice Weinman at the above address, by phone at 385-321-5586, by FAX at 801-538-4553, or by Internet E-mail at [e-mail]
• Jonah Shaw at the above address, by phone at 801-538-4219, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]

This rule is effective on:

05/14/2019

Authorized by:

Ann Williamson, Executive Director

RULE TEXT

R495. Human Services, Administration.

R495-885. Employee Background Screenings.

R495-885-1. Authority and Purpose.

(1) This Rule is authorized by Sections 62A-1-118 and 62A-2-120.

(2) This Rule clarifies the standards for Department of Human Services' employee and volunteer background screening.

(3) This Rule is created to hold DHS employees and volunteers to high standards of conduct, protect children and vulnerable adults, and promote public trust.

(4) This rule does not apply to Department of Human Services Employees and Volunteers whose clearances are performed and maintained by the Department of Health for the Utah State Hospital and the Utah State Developmental Center.

 

R495-885-2. Definitions.

(1) "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.

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

(3) "Department" or "DHS" means the Department of Human Services.

(4) "Direct Access" is defined in Section 62A-2-101.

(5) "Director" means the Director of each DHS Office or Division, and includes the Director's designee.

(6) "Directly Supervised" is defined in 62A-2-101.

(7) "Employee" means a prospective employee who has received a job offer from DHS or a current employee of DHS, and includes paid interns.

(8) "Executive Director" means the Executive Director of DHS or the Deputy Director designated by the Executive Director.

(9) "FBI Rap Back" is defined in Section 53-10-108.

(10) "Fingerprints" means an individual's fingerprints as copied electronically through a live-scan fingerprinting device or on two ten-print fingerprint cards.

(11) "Volunteer" means an individual who donates services without pay or other compensation, except expenses actually and reasonably incurred and pre-approved by the supervising agency, and includes unpaid interns.

(12) "Vulnerable Adult" is defined in Section 62A-2-101.

(13) "Youth Residential Program" also known as "congregate care program" means a 24-hour living environment serving 4 or more youth.

 

R495-885-3. Employees and Volunteers with Direct Access.

(1) The Department finds that a criminal history or identification as a perpetrator of abuse or neglect is directly relevant to an individual's employment or volunteer activities within DHS.

(2) All Department employees and volunteers who may have direct access and who are not directly supervised at all times must have an annual background screening clearance in accordance with Sections 62A-1-118 and 62A-2-120, which shall include retention of fingerprints by BCI for FBI Rap Back.

(3) Department employees and volunteers who may have direct access and are not directly supervised at all times shall:

(a) submit a background screening application to their respective Division or Office on a form created by the Department; and

(b) submit fingerprints to the Department via a DHS-operated live-scan machine or

two ten-print fingerprint cards produced by a law enforcement agency, an agency approved by the BCI, or another entity pre-approved by the Department; or

(c) not be required to submit fingerprints to DHS if they have submitted fingerprints for retention to:

(i) BCI for an Office or Division clearance, and the Office or Division ensures that the minimum standards set forth in Section 62A-2-120 are enforced; or

(ii) to the Department of Health for employees and volunteers of the Utah State Developmental Center per code; or

(iii) to the Office of Licensing as an individual associated with a license as long as the fingerprints are retained by BCI for FBI Rap Back.

(d) in accordance with R501-14-3(4) submit out of state child abuse and neglect registry records for each state resided in during the 5 years immediately preceding the date of the screening application if applying to work in a youth residential program.

(i) instructions for obtaining out of state child abuse and neglect registry records from each state may be found on the OL website: https://hslic.utah.gov/Out-of-state-registries

(ii) DHS employees and contracted employees currently working in a youth residential program at the time this rule goes into effect are responsible for submitting child abuse and neglect registry records for all states resided in during the 5 years immediately preceding the effective date of this rule. They may continue working under their DHS background screening clearance unless the out of state child abuse and neglect registry records contain information that constitutes denial under R501-14 or 62A-2-120.

(4) The DHS Office of Licensing shall access information to perform the background checks described in Sections 62A-1-118 and 62A-2-120:

(a) the DHS Office of Licensing will not duplicate fingerprint-based criminal background checks on Department employees or volunteers who have a current fingerprint-based criminal background clearance pursuant to R495-885-3(3);

(b) the fingerprints submitted by DHS employees who are required to obtain a background screening pursuant to Section 62A-2-120 as an individual associated with a licensee shall be utilized to perform the screening required by this R495-885.

(5) Screening results shall be reviewed in accordance with both the standards outlined by Section 62A-2-120 and this R495-885.

(6) Except as described in R495-885-5, Department employees and volunteers who would automatically be denied a background screening approval as described in Section 62A-2-120(5)(a) are not eligible for work with the Department.

(7) Except as described in R495-885-5, Department employees and volunteers who have any offense or finding described in Section 62A-2-120(6)(a) are not eligible for work with the Department.

 

R495-885-4. Employees and Volunteers with No Direct Access.

(1) The Department finds that a criminal history is directly relevant to an individual's employment activities within DHS.

(2) The Department is not authorized to perform the checks described in Sections 62A-1-118 and 62A-2-120 for employees with no direct access.

(3) Each Division and Office will identify which of their positions includes no potential for direct access that is not directly supervised.

(4) Each employee who does not potentially have direct access shall submit an "Authorization and Waiver for Criminal History Check" form to a Department of Human Resources Management, DHS Field Office authorizing DHRM to perform name-based background checks.

(5) Except as described in R495-885-5, Department employees who would automatically be denied a background screening approval based upon the offenses described in Section 62A-2-120(5)(a) are not eligible for work with the Department.

(6) Except as described in R495-885-5, Department employees who have any offense described in Section 62A-2-120(6)(a) are not eligible for work with the Department.

(7) Volunteers who do not have a background screening clearance pursuant to R495-885-3 will be directly supervised.

 

R495-885-5. Background Screening Review.

(1) The Office of Licensing or the Department of Human Resources Management, DHS Field Office shall notify the Director of the employment eligibility status of each prospective employee, employee, and volunteer.

(2) The Director shall review the background screening results of each prospective employee, employee, and volunteer when there are any offenses present as outlined in 62A-2-120.

(3) Review process for prospective or probationary employees and volunteers:

(a) Following a review of the background screening results for a prospective or probationary employee or volunteer, the Director may deny or terminate the employment of the prospective or probationary employee or refuse acceptance of the volunteer; or

(b) the Director may request further review of the background screening results by the Comprehensive Review Committee established under 62A-2-120. Review of background screening results for prospective or probationary employees or volunteers by the Comprehensive Review Committee is strictly related to the employment or volunteer eligibility of that person with DHS and is not related to the licensure of that individual by DHS, nor does it entitle any party to any of the rights granted to an applicant for licensure as defined in 62A-2-120.

(i) the Director shall notify the prospective or probationary employee that further review by the Comprehensive Review Committee has been requested.

(ii) the review for prospective employees and volunteers by the Comprehensive Review Committee shall follow the criteria outlined in 62A-2-120 and R501-14 as it relates to the process for review, the items or methods of consideration and the process and criteria used in making determinations.

(iii) Following the review, the Comprehensive Review Committee shall make one of the following findings:

(A) A determination to deny the background screening which will result in the Director denying or terminating the employment of the prospective or probationary employee or refuse the acceptance of the volunteer; or

(B) A determination of employment eligibility or to permit acceptance of the volunteer.

(iv) the determination of the Comprehensive Review Committee to deny the background screening will result in the Director denying or terminating the employment of the prospective or probationary employee or refuse acceptance of the volunteer and is final.

(v) Upon receiving the Comprehensive Review Committee determination of employment eligibility or to accept a volunteer A Director, in their sole discretion may;

(A) approve the employment or continued employment of the prospective or probationary employee or approve the acceptance of the volunteer; or

(B) deny or terminate the employment of the prospective or probationary employee or refuse the acceptance of the volunteer.

(vi) the determinations of the Director and the DHS Employee and Volunteer Comprehensive Review Committee are final, and a prospective or probationary employee or volunteer has no right to appeal.

(4) Review process for non-probationary employees:

(a) the following background screening findings shall be submitted to the Director:

(i) automatic denial offenses outlined in 62A-2-120(5)(a);

(ii) all other circumstances outlined in 62A-2-120(6)(a); and

(iii) any MIS supported or substantiated findings;

(b) the Director may consult with the Office of Licensing and shall consult with the Executive Director to evaluate whether the non-probationary employee may present a risk of harm to a child or vulnerable adult, or does not meet DHS high standards of conduct or promote public trust; the Director, Executive Director and Office of Licensing, if consulted, shall consider the factors and information outlined in 62A-2-120(6) (b).

(c) the Executive Director may, in his/her sole discretion, approve the non-probationary employee for continued employment, including defining permissible and impermissible DHS-wide work-related activities, or consult the Department of Human Resource Management regarding termination of employment. The determination of the Executive Director is final.

 

R495-885-6. Division/Office Responsibilities.

(1) The Department shall notify the DHS Office of Licensing within five months of the termination of each employee for whom fingerprints have been retained under Section 62A-2-120 to enable the Office of Licensing to notify BCI and ensure the destruction of fingerprints.

(2) Each Division and Office shall ensure that an employee or volunteer who previously was screened based upon having no direct access shall, prior to having any direct access, be screened and approved in accordance with R495-885.

 

R495-885-7. Compliance.

[The Department will set an implementation schedule to be in compliance with this rule no later than October 31, 2018.]The Department will be required to initiate steps toward compliance with this rule immediately upon the effective date.

 

KEY: background, employees, human services, screenings

Date of Enactment or Last Substantive Amendment: May 14, 2019

Authorizing, and Implemented or Interpreted Law: 62A-1-118; 62A-2-120

---