DAR File No. 38954

Health, Family Health and Preparedness, Licensing

Rule R432-35

Background Screening -- Health Facilities

Notice of Proposed Rule

(Amendment)

DAR File No.: 38954
Filed: 11/14/2014 11:49:35 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to clearly define the process for the review of relevant information before direct patient access clearance is issued. Relevant information includes adult and juvenile criminal records, adult and child protective services records, certified nursing aide registry results, Division of Professional Licensing records and the Office of Inspector General list of excluded individuals.

Summary of the rule or change:

In Section R432-35-8, the review of relevant information was relocated from the end of the criminal records section to the end of the entire section. This is needed so that it is clear that the division is reviewing all the information from the sources listed in the rule and not just the criminal record. Also removed the word "offenses" as not everything the division reviews is from the criminal record and is therefore not an offense. Added all factors that are considered when reviewing relevant information to determine if direct patient access clearance should be issued.

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 21

Anticipated cost or savings to:

the state budget:

There is no impact to the state budget because the changes in this rule only clarify the review process that is currently being utilized.

local governments:

There is no impact to local governments because the changes in this rule only clarify the review process that is currently being utilized.

small businesses:

There is no impact to small businesses because the changes in this rule only clarify the review process that is currently being utilized.

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

There is no impact to businesses, individuals, local governments, and persons that are not small businesses because the changes in this rule only clarify the review process that is currently being utilized.

Compliance costs for affected persons:

There is no impact to affected persons because the changes in this rule only clarify the review process that is currently being utilized.

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

This amendment will have no effect on business because it clarifies but does not change the current review process.

David Patton, PhD, Executive Director

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

Health
Family Health and Preparedness, Licensing
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Joel Hoffman at the above address, by phone at 801-538-6279, by FAX at 801-538-6024, or by Internet E-mail at [email protected]
• Carmen Richins at the above address, by phone at 801-538-9087, by FAX at 801-538-6024, or by Internet E-mail at [email protected]

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:

12/31/2014

This rule may become effective on:

01/07/2015

Authorized by:

David Patton, Executive Director

R432. Health, Family Health and Preparedness, Licensing.

R432-35. Background Screening -- Health Facilities.

R432-35-8. Exclusion from Direct Patient Access.

(1) Criminal Convictions or Pending Charges

(a) As required by Utah Code Subsection 26-21-204, if an individual or covered individual has been convicted, has pleaded no contest, or is subject to a plea in abeyance or diversion agreement, for the following offenses, they may not have direct patient access:

(i) any felony or class A conviction under Utah Criminal Code.

(ii) any felony or class A, B or C conviction under Title 76, Chapter 5 Offenses Against the Person, Utah Criminal Code;

(iii) any felony or class A conviction under Title 76, Chapter 6, Offenses Against Property, Utah Criminal Code;

(iv) any felony or class A conviction under Title 76, Chapter 6a, Pyramid Schemes, Utah Criminal Code;

(v) any felony or class A conviction under Title 76, Chapter 8, Offenses Against the Administration of Government, Utah Criminal Code;

(vi) any felony or class A conviction under Title 76, Chapter 9, Offenses Against Public Order and Decency, Utah Criminal Code;

(vii) any felony or class A, B or C conviction under the following Utah Criminal Codes:

(A) 76-9-301.8, Bestiality;

(B) 76-9-702, Lewdness - Sexual Battery - Public urination; and

(C) 76-9-702.5, Lewdness Involving Child.

(viii) any felony or class A conviction under Title 76, Chapter 10, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code;

(ix) any felony or class A, B or C conviction under the following Utah Criminal Codes:

(A) 76-10-1201 to 1229.5, Pornographic and Harmful Materials and Performances; and

(B) 76-10-1301 to 1314, Prostitution;

(x) any felony or class A conviction under Utah Criminal Code 76-10-2301, Contributing to the Delinquency of a Minor;

(b) As required by Utah Code Subsection 26-21-204, if an individual or covered individual has a warrant for arrest or an arrest for any of the identified offenses in R432-35-8(1)(a), the department may deny clearance based on:

(i) the type of offense;

(ii) the severity of offense; and

(iii) potential risk to patients or residents.

[(c) The following factors may be considered in determining under what circumstance, if any, the covered individual will be allowed direct patient access in a covered provider:

(i) types and number of offenses;

(ii) passage of time since the offense was committed; offenses more than five years old do not bar approval or a license, certificate or employment;

(iii) circumstances surrounding the commission of the offense; and

(iv) intervening circumstances since the commission of the offense. The Executive Director may exclude, on a case-by-case basis, misdemeanors listed under paragraph (a) of this section if the misdemeanor did not involve violence against a child or a family member or unauthorized sexual conduct with a child or disabled adult.

(d) The Department shall rely on the criminal background screening and search of court records as conclusive evidence of the conviction and may deny clearance based on that evidence.

](2) Juvenile Records

(a) As required by Utah Code Subsection 26-21-204(4)(a)(ii)(E), juvenile court records shall be reviewed if an individual or covered individual is:

(i) under the age of 28[.]; or

(ii) over the age of 28[,] and has convictions or pending charges identified in R432-35-8(1)(a).

(b) Adjudications by a juvenile court may exclude the individual from direct patient access if the adjudications refer to an act that, if committed by an adult, would be a felony or a misdemeanor.

(3) Non-Criminal Records

(a) As required by Utah Code Subsection 26-21-204(3), the Department may review findings from the following sources to determine whether an individual or covered individual should be granted or retain direct patient access:

(i) the Department of Human Services' Division of Child and Family Services Licensing Information System described in Section 62A-4a-1006;

(ii) child abuse or neglect findings described in Section 78A-6-323;

(iii) the Department of Human Services' Division of Aging and Adult Services vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;

(iv) registries of nurse aids described in Title 42 Code of Federal Regulations Section 483.156;

(v) licensing and certification records of individuals licensed or certified by the Division of Occupational and Professional Licensing under Title 58, Occupations and Professions; and

(vi) the List of Excluded Individuals and Entities database maintained by the United States Department of Health and Human Services' Office of Inspector General.

(4) Review of Relevant Information

(a) Results of background screening review, as listed above in R432-35-8(1), (2), and (3), may be reviewed to determine under what circumstance, if any, the covered individual may be granted or retain direct patient access. The following factors may be considered:

(i) types and number;

(ii) passage of time;

(iii) surrounding circumstances;

(vi) intervening circumstances; and

(v) steps taken to correct or improve.

(b) The department shall rely on relevant information identified in R432-35-8(1), (2), and (3) as conclusive evidence and may deny clearance based on that information.

 

KEY: health care facilities, background screening

Date of Enactment or Last Substantive Amendment: [December 12, 2012]2015

Notice of Continuation: March 25, 2013

Authorizing, and Implemented or Interpreted Law: 26-21-9.5