R501-14. Human Service Program Background Screening, R501. Human Services, Administration, Administrative Services, Licensing, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R501. Human Services, Administration, Administrative Services, Licensing

R501-14. Human Service Program Background Screening

R501-14-1. Authority and Purpose

Latest version.

(1) This Rule is authorized by Sections 62A-2-106, 62A-2-120, 62A-2-121, and 62A-2-122.

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

R501-14-2. Definitions

Latest version.

(1) "Abuse" is defined in Sections 78A-6-105 and 62A-3-301, and may include "Severe Abuse", "Severe Neglect", and "Sexual Abuse", as these terms are defined in Sections 78A-6-105 and 62A-3-301.

(2) "Adult-only Substance Use Disorder Program" is a program serving substance use disorder related clients that has declared to the Office of Licensing that they do not serve the following:

(a) clients under the age of 18; or

(b) those with any serious mental illness or cognitive impairments.

(3) "Applicant" means a person whose identifying information is submitted to the Office under Sections 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78B-6-128, and 78B-6-113. Applicant includes the legal guardian of an individual described in Section 62A-2-120-1(a).

(a) "Applicant" does not mean an individual, including an adult, who is in the custody of the Division of Child and Family Services or the Division of Juvenile Justice Services.

(4) "Background Screening Agent" means the applicable licensing specialist, human services program, Area Agency on Aging (for Personal Care Attendant applicants only), and adoption service provider, an attorney representing a prospective adoptive parent as defined in Section 78B-6-103(25), or DHS Division or Office. The background screening agents are the point of contact with the Office for the purpose of background screening.

(5) "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.

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

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

(8) "Comprehensive Review Committee" means the committee appointed to conduct reviews in accordance with Section 62A-2-120.

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

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

(11) "Direct Service Worker" is defined in Section 62A-5-101.

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

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

(14) "Fingerprints" means an individual's fingerprints as copied electronically through a fingerprint scanning device or on two ten-print fingerprint cards by a law enforcement agency, an agency approved by the BCI, or background screening agent.

(15) "Foster Home" is defined in Section 62A-2-101.

(16) "Harm" is defined in R501-1-2(14) and for the purpose of background screenings also includes causing or threatening to cause financial damage or fraud.

(17) "Human Services Program" is defined in Section 62A-2-101.

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

(19) "Licensing Information System" is created by Section 62A-4a-1006, as a sub-part of the Division of Child and Family Services' Management Information System created by Section 62A-4a-1003.

(20) "Neglect" may include "Severe Neglect", as these terms are defined in Sections 78A-6-105 and 62A-3-301.

(21) "Office" is defined in Section 62A-2-101(30) and is also referred to as "OL".

(22) "Personal Care Attendant" is defined in Section 62A-3-101.

(23) "Personal Identifying Information" is defined in Section 62A-2-120, and shall include:

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

(b) any current, valid government-issued identification card bearing the applicant's name and photo, including passports, military identification and foreign government identification cards; or

(24) "Substance Abuse Treatment Program" is defined in Section 62A-2-101.

(25) "Substantiated" is defined in Section 62A-4a-101.

(26) "Supported" is defined in Sections 62A-3-301 and 62A-4a-101.

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

(28) "Youth Residential Program" is also known as "congregate care" and means a 24-hour group living environment serving 4 or more youth. This does not include foster homes or child placing agency certified homes.

R501-14-3. Initial Background Screening Procedure

Latest version.

(1) 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.

(2) 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.

(3) An applicant may provide disclosure statements and related documents as direct attachments to the application or directly attached in a sealed envelope. If the applicant submits a sealed envelope, the background screening agent shall forward it unopened.

(4) An applicant applying to work in a youth residential program who has resided outside of the state of Utah within the 5 years immediately preceding the date of the background screening application shall provide a child abuse and neglect registry record for each State in which the applicant has resided within those 5 years.

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

(b) out of state child abuse and neglect registry records are not required to be produced to the Office of Licensing a second time for license renewal, screening transfer or screening renewal as long as a record from every state resided in over the past 5 years has been previously submitted and reviewed by the Office of Licensing.

(i) a current employee in a youth residential setting at the time this rule goes into effect shall submit all out of state registry records for all states resided in for the 5 years immediately preceding their background screening renewal application.

(c) applicants experiencing delays in receiving requested out of state(s) registry record(s) must be supervised while record(s) are pending, unless:

(i) documentation is obtained from the state(s) providing the record giving a time frame for expected receipt of record(s). This documentation may not be authored by anyone but the sending state(s)authorized personnel and;

(ii) the Office otherwise approves the applicant's background screening with no comprehensive review committee review required.

(d) any out of state registry record that contains information that constitutes background screening denial under this rule, shall result in a denial or revocation of background screening and the employee direct access to clients and client records must be terminated immediately upon notification.

(5)An applicant must present valid government-issued identification.

(6) An applicant who presents only a foreign country identification card may be required to submit an original or official copy of a government issued criminal history report from that country.

(7) The background screening application, personal identifying information, including fingerprints, and applicable fee shall be submitted to the background screening agent. The background screening agent shall:

(a) inspect the applicant's government-issued identification card and determine that it does not appear to have been forged or altered;

(b) review for completeness and accuracy and sign the application; and

(d) The background screening agent may withdraw a background screening application at any point in the process.

R501-14-4. Renewal Background Screening Procedure

Latest version.

(1) An applicant for background screening renewal shall legibly complete, date and sign a background screening application and consent on a form provided by the Office.

(2) 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. The applicant may provide disclosure statements and related documents as direct attachments to the application or directly attached in a sealed envelope. If the applicant submits a sealed envelope, the background screening agent shall forward it unopened.

(3) The background screening application and personal identifying information shall be submitted to the background screening agent.

(a) Notwithstanding R501-14-4(3), an applicant for a background screening renewal who is not currently enrolled in the FBI Rap Back System is not required to submit fingerprints for a FBI Rap Back System search and applicable FBI Rap Back System fees unless:

(i) the applicant's most current background screening has lapsed as described in part 7 of this Section;

(ii) the human services program or background screening agent with which the applicant is associated requires a FBI Rap Back System search;

(iii) the applicant wishes to provide services with an additional licensee and has not submitted fingerprints for a FBI Rap Back System search and applicable FBI Rap Back System fees; or

(iv) the renewal application is submitted on or after July 1, 2018 and the applicant is not already enrolled in the FBI Rap Back System.

(4) A background screening agent wishing to submit background screening renewal applications for multiple applicants may submit a summary log of the renewing applicants in lieu of individuals' applications.

(a) A summary log may only be used for applicants:

(i) who are enrolled in the FBI Rap Back System with the Office;

(ii) with a current approval;

(iii) whose name and address have not changed since their last background screening approval;

(iv) who have not had any of the following since their last background screening approval:

(A) criminal arrests or charges;

(B) supported or substantiated findings of abuse, neglect or exploitation; or

(b) Summary logs shall contain:

(i) applicant full legal name,

(ii) applicant date of birth,

(iii) the last four numbers of each applicant's social security number;

(iv) program name; and

(v) name of program representative completing summary form.

(c) A background screening agent choosing to submit a summary log of the renewing applicants in lieu of individuals' applications shall maintain current documentation signed by each applicant, in which they attest to the accuracy of the information described in R501-14-4(4)(a) and (b).

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

(6) The background screening agent shall:

(a) inspect the applicant's government-issued identification card and make a determination as to whether or not it appears to have been forged or altered; and

(b) review for completeness and accuracy and sign the application.

(7) Renewal applications from background screening agent and applicant shall be submitted to the Office no later than one year from the date of their most recent background screening approval. A screening that has lapsed for 30 days beyond that time is void and a new initial application must be submitted.

R501-14-5. General Background Screening Procedure

Latest version.

(1) 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.

(a) Personal identifying information submitted pursuant to Sections 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78B-6-113, and 78B-6-128 shall be used to perform a search in accordance with Sections 62A-2-120(3) and (13).

(2) Except as permitted by Section 62A-2-120(9), an applicant for an initial background screening shall submit an application no later than two weeks from becoming associated with the licensee and shall be directly supervised in regards to a child or vulnerable adult prior to receiving written confirmation of background screening approval from the Office.

(a) Except as permitted by Section 62A-2-120(9), an applicant seeking background screening renewal shall submit renewal application within one year of the previous clearance date.

(b) If the screening approval lapses beyond 30 days, the applicant shall be directly supervised in regard to direct access of a child or vulnerable adult prior to receiving written confirmation of background screening approval from the Office.

(c) An applicant whose background screening has been denied shall have no further supervised or unsupervised direct access to clients unless the Office approves a subsequent application.

(3) The applicant or background screening agent shall promptly notify the Office of any change of address while the application remains pending.

(4) A background screening agent may roll fingerprints of applicants for submission to the Office only after it has received and applied training in the proper methods of taking fingerprints.

(a) The background screening agent shall verify the identity of the applicant via government-issued identification card at the time that fingerprints are taken.

(b) In the event that 10% or more of the fingerprints submitted by a background screening agent are rejected for quality purposes, the Office may thereafter require that a program utilize law enforcement or BCI to roll prints.

(c) A minor applicant that submitted a youth application with no fingerprint cards and is not currently on the FBI Rap Back System must submit fingerprints within 30 days prior to the minor's 18th birthday.

R501-14-6. Background Screening Fees

Latest version.

(1) The applicant and background screening agent are responsible for ensuring the accuracy of information submitted with fee payments.

(2) Fees shall only be made by cashiers' check, corporate check, money order, or internal DHS transfer. Personal checks and credit or debit card payments shall not be accepted.

(3) A background screening agent may choose to submit one payment for any number of applicants.

(4) Fees are not refundable or transferable for any reason.

R501-14-7. Application Processing and Results

Latest version.

(1) The Office shall approve an application for background screening in accordance with Section 62A-2-120(7).

(a) The Office shall notify the applicant or the background screening agent or contractor when an applicant's background screening application is approved.

(i) Upon receiving notice from the Office, the background screening agent shall provide notice of approval to the applicant as required under Section 62A-2-120 (12)(a)(i).

(b) The approval granted by the Office shall be valid until a renewal approval is issued or the prior approval lapses.

(2) The Office may conditionally approve an application for background screening in accordance with Section 62A-2-120(8).

(a) Conditional approvals are prohibited for initial applicants who are residents of child placing foster or adoption homes.

(b) A background screening agent seeking the conditional approval of an applicant shall not request conditional approval unless 10 business days have passed after the applicant's background screening application is received by the Office without receiving notification of the approval or denial of the application.

(c) A written request for conditional approval shall include the applicant's full name, the last four digits of the applicant's social security number, and the date the application was submitted to the Office.

(d) Upon receipt of a written request for conditional approval that complies with R501-14-7(2)(b), the Office shall make a conditional determination within three business days.

(e) Conditional approvals shall have expiration dates not to exceed 60 days.

(f) If the Office does not provide a standard approval before the expiration date of the conditional approval, the applicant shall be directly supervised until such an approval is granted.

(g) The Office may revoke the conditional approval prior to the expiration date.

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

(4) An applicant whose background screening has been denied shall have no further supervised or unsupervised direct access.

(5) The Office shall refer an application to the comprehensive review committee in accordance with Section 62A-2-120(6).

(a) Per Section 62A-2-120 (6)(a)(ii), all misdemeanor convictions except those listed in R501-14-7(5)(b), within the five years prior to submission of the application to the Office shall be reviewed by the comprehensive review committee.

(b) The following misdemeanors will not be reviewed except as described in (xiv) as listed below:

(i) violation of local ordinances related to animal licenses, littering, dogs at large, noise, yard sales, land uses, storm water, utilities, business licenses, zoning, building, construction and park/access hours;

(ii) all misdemeanors listed in 41-6a except:

(A) part 4 accident responsibility Sections 401.3, 401.5 and 401.7;

(B) part 5 driving under the influence;

(D) part 18 Section 1803;

(iii) all misdemeanors listed in 76-10-2, 76-10 part 1 Section 105, 76-10-21 and 76-10-27;

(iv) Failure to Appear: A misdemeanor charge under 77-7-22;

(v) Unauthorized Hunting of Protected Wildlife: A misdemeanor resulting from unauthorized hunting under 23-20-3;

(vi) Fishing Licenses: A misdemeanor resulting from a failure to have the appropriate fishing license under 23-19-1;

(vii) Boating Safety: A misdemeanor resulting from a failure to comply with the boating safety requirements outlined in 73-18-8;

(viii) Business License: A misdemeanor resulting from failure to have a business license as required under 76-8-410;

(ix) all juvenile misdemeanors except those listed in 62A-2-120(5)(a) unless there is a pattern of at least three or more similar offenses within the five years prior to the submission of the application.

(c) The Office shall refer an applicant to the comprehensive review committee upon learning of a potentially disqualifying offense or finding described in Section 62A-2-120(6)(a) not previously considered by the comprehensive review committee.

(6) The Office may provide the status of an application to the sponsoring background screening agent, but shall not share any specific criminal history information.

R501-14-8. Comprehensive Review Committee

Latest version.

(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;

(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; and

(g) 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 member shall chair the comprehensive review committee as a non-voting member.

(4) Four voting members shall constitute a quorum, not including the representatives from the Office of Licensing.

(5) The comprehensive review committee shall conduct a comprehensive review of an applicant's background screening application, criminal history records, outstanding warrants for any offenses that require a committee review, abuse, neglect or exploitation records, applicant submitted child abuse and neglect registry record(s) from other state(s) and related circumstances, in accordance with Section 62A-2-120(6).

R501-14-9. Comprehensive Review Investigation

Latest version.

(1) The comprehensive review committee shall not review a background screening application without the Office 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 comprehensive review committee needs to make a determination of risk of harm including but not limited to:

(i) original police reports;

(ii) investigatory and charging documents;

(iii) proof of any compliance with court orders;

(iv) any evidence of rehabilitation, counseling, psychiatric treatment received, or additional academic or vocational schooling completed;

(v) personal statements;

(vi) reference letters specific to the potential risk of harm and;

(vii) any other information that specifically addresses the criteria established in Section 62A-2-120(6)(b);

(c) the comprehensive review committee evaluates information using the criteria established by Section 62A-2-120(6)(b); and

(d) submissions must be received within 15 calendar days of the written notice unless an extension has been requested by the background screening agent or applicant and granted by the Office.

(2) The Office shall gather information described in Section 62A-2-120(6)(b) from the applicant and provide available information to the comprehensive review committee.

(3) The Office 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.

(4) A denied application may be re-submitted to the Office after 6 months or upon substantial change to circumstances.

R501-14-10. Comprehensive Review Determination

Latest version.

(1) The comprehensive review committee shall only consider applications and information presented by the Office. The comprehensive review committee shall evaluate the applications and information provided to the committee through the Office.

(a) A background screening approval may be transferred to other human service programs when providing the same service under the same statutory screening requirements.

(b) the committee shall re-consider all previously cleared or denied screenings when the applicant requires a new clearance for a new type of service.

(2) Each application that goes to the comprehensive review committee requires individual review by the comprehensive review committee.

(3) The comprehensive review committee shall recommend approval of the background screening of an applicant 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.

(4) The comprehensive review committee shall recommend denial of the background screening of an applicant when it finds that approval will likely create a risk of harm as defined in 501-14-2(16) to a child or vulnerable adult.

(5) If the applicant fails to provide additional information requested by the Office, the comprehensive review committee may consider and weigh only what was submitted to them and only consider additional information that is publicly available in making their evaluation of the risk of harm to clients.

(6) The Office shall make the final determination to approve or deny the application after considering the comprehensive review committee's recommendation.

(7) An applicant whose background screening has been denied shall have no further supervised or unsupervised direct access.

R501-14-11. Background Screening Approval Transfer or Concurrent Use

Latest version.

(1) An applicant is eligible to have their current background screening approval shared with or transferred to another human services program only if the applicant is currently enrolled in the FBI Rap Back System and the screening was run under the same statutory authority as the original screening.

(2) An applicant who wishes to have their current background screening shared with or transferred to another human services program shall complete a background screening application and identify the name of the original program and youth residential status in boxes indicated.

(i) transfers between youth residential programs is permitted. Transfers from a non-youth residential to a youth residential program shall require submission of out of state registry records when the applicant has resided in another state(s) within 5 years of the application.

(3) An applicant shall be directly supervised until the program receives written confirmation from the Office that the background screening is current and valid.

(4) A background screening approval that has been transferred or shared shall have the same expiration date as the original approval.

R501-14-12. Post-Approval Responsibilities

Latest version.

(1) An applicant and background screening agent shall immediately notify the Office if the applicant is charged with any felony, misdemeanor, or infraction, or has a new finding in the Licensing Information System, juvenile court records, or the DAAS Statewide Database after a background screening application is approved.

(2) An applicant who has received an approved background screening shall resubmit an application and personal identifying information to the Office within ten calendar days after being charged with any felony, misdemeanor, or infraction, or being listed in the Licensing Information System, the DAAS Statewide Database, or juvenile court records.

(3) An applicant who has been charged with any felony, misdemeanor, or infraction listed in Section 62A-2-120(5)(a) or has a new finding in the Licensing Information System or the DAAS Statewide Database, after a background screening application is approved shall be directly supervised until after an application and personal identifying information have been resubmitted to the Office and a current background screening approval is received from the Office.

(4) An applicant charged with an offense for which there is no final disposition and no comprehensive review committee denial, shall inform the Office of the current status of each case every 90 days.

(a) The Office shall determine whether the pending charge could require a denial or committee review, and if so, notify the applicant to submit an official copy of judicial documentation that indicates the current status of the case at least once every 3 months or until final disposition, whichever comes first.

(b) An applicant shall submit an official copy of judicial documentation that indicates the current status of the case at least once every 3 months or until final disposition, whichever comes first.

(5) The Office 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 DAAS Statewide Database, or juvenile court records; and fails to provide required current status information as described in (4) of this Rule or;

(b) has been convicted of any felony, misdemeanor or infraction listed in 62A-2-120(5) after a background screening approval had already been granted by the Office while charges were pending.

(6) The Office shall process identifying information received pursuant to R501-14-12(2) in accordance with R501-14.

(7) The background screening agent shall notify the Office of the termination of each employee for whom fingerprints have been retained under Section 62A-2-120. The Office shall report the termination to BCI within five months if the individual has not transferred the clearance to a transfer-eligible program within that time frame.

R501-14-13. Confidentiality

Latest version.

(1) The Office may disclose criminal background screening information, including information acknowledging the existence or non-existence of a criminal history, only to the applicant in accordance with the Government Records Access and Management Act, Section 63G-2-101, et seq.

(2) Except as described in R501-14-11 and below, background screening information may not be transferred or shared between human service programs.

(a) A licensed child-placing adoption agency may provide the approval granted by the Office to the person who is the subject of the approval, another licensed child-placing agency, or the attorney for the adoptive parents, in accordance with Section 53-10-108(4).

R501-14-14. Retention of Background Screening Information

Latest version.

(1) A human services program or department contractor shall retain the background screening information of all associated individuals for a minimum of seven years after the termination of the individual's association with the program.

R501-14-15. Expungement

Latest version.

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

R501-14-16. Administrative Hearing

Latest version.

(1) A Notice of Agency Action that denies the applicant's background screening application or revokes the applicant's background screening approval shall inform the applicant of the right to appeal in accordance with Administrative Rule R497-100 and Section 63G-4-101, et seq.

R501-14-17. Exemption

Latest version.

(1) Section 62A-2-120(13) provides an exemption for substance abuse programs providing services to adults only. In order to claim this exemption, an applicant, human services program, or department contractor may request this exemption on a form provided by the Office, and demonstrate that they meet exemption criteria. Final determination shall be made by the Office.

(2) The substance abuse program exemption limits the exemption with regard to program directors and members. Ownership and management of a human services program, as included in the definition of member, for purposes of this rule means a person or entity who alone or in conjunction with other persons or entities has a majority voice in the decision-making and administration of the program.

R501-14-18. Compliance

Latest version.

(1) A licensee that is in operation on the effective date of this Rule shall be given 90 days to achieve compliance with this Rule.