DAR File No. 39465

Health, Family Health and Preparedness, Child Care Licensing

Rule R430-6

Background Screenings

Notice of Proposed Rule

(Amendment)

DAR File No.: 39465
Filed: 06/26/2015 02:11:55 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to be in compliance with the legal requirements of S.B. 12 from the 2015 General Session.

Summary of the rule or change:

The amendments to this rule include language to address exempt facilities and the legal requirements of S.B. 12 (2015).

State statutory or constitutional authorization for this rule:

• Title 26, Chapter 39

Anticipated cost or savings to:

the state budget:

This rule is being amended to be in compliance with the legal requirements of S.B. 12 (2015). Based on the stipulations in the bill, the additional child care providers for whom background checks will be processed by the Department will generate enough revenue to compensate for the costs of adding this workload to the Child Care Licensing Program. Since the Department does not know the exact number of providers this rule will affect, the income generated by these changes may not be estimated.

local governments:

This rule requires some currently license exempt child care programs to begin conducting background screenings through the Department of Health. If a local government operates an exempt child care program, this rule will apply to them. Previously, the statute required exempt providers to conduct their own background screenings. If the exempt programs were doing this, and were paying for both the Department of Public Safety and FBI fingerprint screenings themselves, then there should not be an increased cost for these facilities because they will now pay those fees to the Department rather than to Public Safety and the FBI. If exempt programs were not previously conducting both of these screenings, then there will be additional costs to them for the screenings. The cost of the Public Safety screening is $15. The cost of the FBI fingerprint screening is $34.75. Because the Department does not know how many local governments operate license exempt child care program, or, if they do, to what extent they already pay for background screenings, the Department cannot estimate the costs to local government.

small businesses:

This rule requires some currently license exempt child care programs to begin conducting background screenings through the Department of Health. If an exempt child care program is operated by a local business that falls under S.B. 12 (2015), this rule will apply to them. Previously, the statute required exempt providers to conduct their own background screenings. If the exempt programs were doing this, and were paying for both the Public Safety and FBI fingerprint screenings themselves, then there should not be an increased cost for these facilities because they will now pay those fees to the Department rather than to Public Safety and the FBI. If exempt programs were not previously conducting both of these screenings, then there will be additional costs to them for the screenings. The cost of the Public Safety screening is $15. The cost of the FBI fingerprint screening is $34.75. Because the Department does not know how many small businesses operate a license exempt child care program, or, if they do, to what extent they already pay for background screenings, the Department cannot estimate the costs to small businesses.

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

This rule requires some currently license exempt child care programs to begin conducting background screenings through the Department of Health. If an exempt child care program is operated by a business or person that is not a small business and falls under S.B. 12 (2015), this rule will apply to them. Previously, the statute required exempt providers to conduct their own background screenings. If the exempt programs were doing this, and were paying for both the Public Safety and FBI fingerprint screenings themselves, then there should not be an increased cost for these facilities because they will now pay those fees to the Department rather than to Public Safety and the FBI. If exempt programs were not previously conducting both of these screenings, then there will be additional costs to them for the screenings. The cost of the Public Safety screening is $15. The cost of the FBI fingerprint screening is $34.75. Because the Department does not know how many small businesses operate a license exempt child care program, or, if they do, to what extent they already pay for background screenings, the Department cannot estimate the costs to these entities and individuals.

Compliance costs for affected persons:

License exempt facilities affected by the amendments of this rule will have to pay the Department $15 for each covered individual?s background screening, and if required by this rule, $34.75 for each individual's fingerprints. However, the Department does not know if the license exempt child care facilities covered in S.B. 12 (2015) were already paying for these screenings themselves, or requiring their staff to pay for them. Therefore, the Department does not know if this will represent an increased cost for any individual person.

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

This amendment will have a fiscal impact between $15 and $50 for each license-exempt child care provider who will now be subject to background screen requirements.

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, Child Care Licensing
3760 S HIGHLAND DR
SALT LAKE CITY, UT 84106

Direct questions regarding this rule to:

• Simon Bolivar at the above address, by phone at 801-803-4618, by FAX at 801-237-0786, 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:

08/14/2015

This rule may become effective on:

08/30/2015

Authorized by:

David Patton, Executive Director

R430. Health, Family Health and Preparedness, Child Care Licensing.

R430-6. Background Screening.

R430-6-2. Definitions.

Terms used in this rule are defined in Title 26, Chapter 39. In addition:

(1) "Applicant" means a person who has applied for a new child care license[or], residential, certificate, or license exemption from the Department, or a currently licensed, [or ]certified, or license exempt child care provider who is applying for a renewal of their child care license, [or ]certificate, or exemption.

(2) "Background finding" means a determination by the Department that an individual:

(a) has been convicted of, has pleaded no contest to, or is currently subject to a plea in abeyance or diversion agreement for a felony or misdemeanor[.];

(b) has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or misdemeanor[.]; or

(c) is listed on the Utah or national sex offender registry.

(3) "Covered individual" means:

(a) owners;

(b) directors;

(c) members of the governing body;

(d) employees;

(e) providers of care, including children residing in a home where child care is provided;

(f) volunteers, excluding parents of children enrolled in the program;

(g) all individuals age 12 and older residing in a residence where child care is provided; and

(h) anyone who has unsupervised contact with a child in care.

(4) "Department" means the Utah Department of Health.

(5) "Exempt Child Care Provider" means a person who provides care as described in the Utah Code 26-39-403(2).

[(5)](6) "Involved with child care" means to do any of the following at or for a facility with a child care license, [or ]certificate, or exemption issued by the Department:

(a) provide child care;

(b) volunteer at a child care facility;

(c) own, operate, direct, or be employed at a child care facility;

(d) reside at a facility where care is provided;

(e) function as a member of the governing body of a child care facility; or

(e) be present at a facility while care is being provided, except for parents dropping off or picking up their child, or attending a scheduled event at the child care facility.

[(6)](7) "Supported finding" means an individual is listed on the Licensing Information System child abuse and neglect database maintained by the Utah Department of Human Services, or listed on the Utah or national sex offender registry.

[(7)](8) "Unsupervised Contact" means contact with children that provides the person opportunity for personal communication or touch when not under the direct supervision of a child care provider or employee who has passed a background screening.

[(8)](9) "Volunteer" means an individual who receives no form of direct or indirect compensation for providing care.

 

R430-6-3. Submission of Background Screening Information.

(1) Each applicant requesting a new or renewal child care license, [or ]residential certificate, or exemption must submit to the Department the name and other required identifying information on all covered individuals.

(a) Unless an exception is granted under Subsection (4) below, the applicant shall ensure that the identifying information submitted for all individuals age 18 and older includes a fingerprint card and fee.

(b) The fingerprint card must be prepared either by a local law enforcement agency or an agency approved by local law enforcement.

(c) If fingerprints are submitted via life scan, the provider processing the fingerprints shall be in compliance with the Department's guidelines.

(2) The applicant shall state[in writing], based upon the applicant's information and belief, whether each covered individual:

(a) has been convicted of, has pleaded no contest to, or is currently subject to a plea in abeyance or diversion agreement for a felony or misdemeanor.

(b) has been adjudicated in juvenile court of committing an act which if committed by an adult would be a felony or misdemeanor;

(c) has ever had a supported finding by the Department of Human Services, or a substantiated finding from a juvenile court, of abuse or neglect of a child.

(3) Within ten working days of a new covered individual beginning work at a licensed, certified, or exempt child care facility or moving into a licensed or certified home, or a child turning 12 who resides in the facility where care is provided, the licensee, [or ]certificate holder, or exempt child care provider must submit to the Department the name and other required identifying information for that individual.

(a) Unless an exception is granted under Subsection (4) below, the licensee or certificate holder shall ensure that the identifying information submitted for all individuals age 18 and older includes a fingerprint card and fee.

(b) The fingerprint card must be prepared either by a local law enforcement agency or an agency approved by local law enforcement.

(4) Fingerprint cards are not required if:

[(4)(a) Fingerprint cards are not required if:

] [(i)](a) the covered individual has resided in Utah continuously for the past five years, or [is less than 23 years of age and has resided in Utah continuously ]since the individual's 18th birthday; and

[(ii)](b) [T]the covered individual will only be involved with child care in a facility that was licensed or certified prior to 1 July 2013[,]; or

[(b)](c) [A]the covered individual [who ]has previously submitted to the Department a fingerprint card under this section for a national criminal history record check and has resided in Utah continuously since that time[is not required to submit a fingerprint card].

(5) Each year, before the last day of the expiration month on the covered individual's background screening card, the licensee, certificate holder, or exempt child care provider shall submit to the Department the required information and fees to renew each covered individual's background screening.

 

R430-6-4. Criminal Background Screening.

(1) Regardless of any exception under R430-6-4(4), if an in-state criminal background screening indicates that a covered individual age 18 or older has a background finding, the Department may require that individual to submit a fingerprint card and fee from which the Department may conduct a national criminal background screening on that individual.

(2) Except for the offenses listed under Subsection (3), if a covered individual has a background finding, that individual may not be involved with child care. If such a covered individual resides in a home where child care is provided, the Department shall revoke an existing license or certificate or refuse to issue a new license or certificate.

(3) A background finding for any of the following offenses does not prohibit a covered individual from being involved with child care:

(a) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 32A, Alcoholic Beverage Control Act, except for 32A-12-203, Unlawful sale or furnishing to minors;

(b) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 41, Chapter 6a, Traffic Code except for an offense under section 41-6a-502, Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration, that is punishable as a Class A misdemeanor under subsection 41-6a-503(1)(b);

(c) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 58, Chapter 37, Utah Controlled Substances Act;

(d) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 58, Chapter 37a, Utah Drug Paraphernalia Act;

(e) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 58, Chapter 37b, Imitation Controlled Substances Act;

(f) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 4, Inchoate Offenses, except for:

(i) 76-4-401, Enticing a Minor;

(g) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 6, Offenses Against Property;

(h) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 6a, Pyramid Scheme Act;

(i) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 7, Subsection 103, Adultery, and 104, Fornication;

(j) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 8, Offenses Against the Administration of Government;

(k) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 9, Offenses Against Public Order and Decency, except for:

(i) 76-9-301, Cruelty to Animals;

(ii) 76-9-301.1, Dog Fighting;

(iii) 76-9-301.8, Bestiality;

(iv) 76-9-702, Lewdness;

(v) 76-9-702.5, Lewdness Involving Child; and

(vi) 76-9-702.7, Voyeurism; and

(l) any Class A misdemeanor offense as allowed in Subsection (4), and any Class B or C misdemeanor offense under Title 76, Chapter 10, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code, except for:

(i) 76-10-509.5, Providing Certain Weapons to a Minor;

(ii) 76-10-509.6, Parent or guardian providing firearm to violent minor;

(iii) 76-10-509.7, Parent or Guardian Knowing of a Minor's Possession of a Dangerous Weapon;

(iv) 76-10-1201 to 1229.5, Pornographic Material or Performance;

(v) 76-10-1301 to 1314, Prostitution; and

(vi) 76-10-2301, Contributing to the Delinquency of a Minor.

(4) A covered individual with a Class A misdemeanor background finding may be involved with child care if either of the following conditions is met:

(a) if the Class A misdemeanor background finding is for any of the excluded misdemeanor offenses in Subsection (3), and:

(i) ten or more years have passed since the Class A misdemeanor offense; and

(ii) there is no other background finding for the individual in the past ten years; or

(b) if the Class A misdemeanor background finding is for any of the excluded misdemeanor offenses in Subsection (3) and five or more years have passed, but ten years have not passed since the Class A misdemeanor offense, and there is no other background finding since the Class A misdemeanor offense, then the individual may be involved with child care as an employee of an existing licensed, [or ]certified, or exempt child care program for up to six months if:

(i) the individual provides documentation for an active petition for expungement of the disqualifying offense within 30 days of the notice of the disqualifying background finding; and

(ii) the licensee, [or ]certificate holder, or exempt child care provider ensures that another employee who has passed the background screening is always present in the same room as the individual, and ensures that the individual has no unsupervised contact with any child in care.

(5) If the court denies a petition for expungement from an individual who has petitioned for expungement and continues to be involved with child care as an employee under Subsection (4)(b), that individual may no longer be employed in an existing licensed, [or ]certified, or exempt child care program, even if six months have not passed since the notice of the disqualifying background finding.

(6) The Department may rely on the criminal background screening as conclusive evidence of the arrest warrant, arrest, charge, or conviction, and the Department may revoke or deny a license, certificate, or employment based on that evidence.

(7) If a covered individual is denied a license, certificate or employment based upon the criminal background screening and the covered individual disagrees with the information provided by the Department of Public Safety, the covered individual may challenge the information as provided in Utah Code, Sections 77-18-10 through 77-18-14 and 77-18a-1.

(8) If the Department takes an action adverse to any covered individual based upon the criminal background screening, the Department shall send a written decision to the licensee or certificate holder and the covered individual explaining the action and the right of appeal.

(9) All licensees, certificate holders, exempt child care providers, and covered individuals must report to the Department any felony or misdemeanor arrest, charge, or conviction of a covered individual within 48 hours of becoming aware of the arrest warrant, arrest, charge, or conviction. Failure to notify the Department within 48 hours may result in disciplinary action, including revocation of the license or certificate.

(10) The Executive Director of the Department of Health may consider and exempt individual cases under the following conditions:

(a) the background finding is not for a felony; and

(b) the Executive Director determines that the nature of the background finding, or mitigating circumstances related to the background finding, are such that the individual with the background finding does not pose a risk to children.

 

R430-6-5. Covered Individuals with Arrests or Pending Criminal Charges.

(1) If a covered individual has an outstanding arrest warrant for, or has been arrested or charged with a felony or a misdemeanor that would not be excluded under R430-6-4(3), the Department may revoke or suspend any license or certificate of a provider, or deny employment, if necessary to protect the health and safety of children in care.

(2) If the Department denies or revokes a license or certificate or denies employment based upon the arrest warrant, arrest, or charge, the Department shall send a written decision to the licensee, [or ]certificate holder, exempt child care provider, and the covered individual notifying them that a hearing with the Department may be requested.

(3) The Department may hold the license, certificate, or employment denial in abeyance until the arrest warrant, arrest, or felony or misdemeanor charge is resolved.

 

R430-6-6. Child Abuse and Neglect Background Screening.

(1) If the Department finds that a covered individual has a supported finding on the Department of Human Services Licensing Information System, that individual may not be involved with child care.

(a) If such a covered individual resides in a home where child care is provided the Department shall revoke the license or certificate for the child care provided in that home.

(b) If such a covered individual resides in a home for which an application for a new license or certificate has been made, the Department shall refuse to issue a new license or certificate.

(2) If the Department denies or revokes a license, certificate, or employment based upon the Licensing Information System maintained by the Utah Department of Human Services, the Department shall send a written decision to the licensee, [or ]certificate holder, or exempt child care provider, and the covered individual.

(3) If the covered individual disagrees with the supported finding on the Licensing Information System, the individual cannot appeal the supported finding to the Department of Health but must direct the appeal to the Department of Human Services and follow the process established by the Department of Human Services.

(4) All licensees, certificate holders, exempt child care providers, and covered individuals must report to the Department any supported finding on the Department of Human Services Licensing Information System concerning a covered individual within 48 hours of becoming aware of the supported finding. Failure to notify the Department within 48 hours may result in disciplinary action, including revocation of the license or certificate.

 

R430-6-7. Emergency Providers.

(1) In an emergency, not anticipated in the licensee or certificate holder's emergency plan, a licensee or certificate holder may assign a person who has not had a criminal background screening to provide emergency care for and have unsupervised contact with children for no more than 24 hours per emergency incident.

(a) Before the licensee or certificate holder may leave the children in the care of the emergency provider, the licensee or certificate holder must first obtain a signed, written declaration from the emergency provider that the emergency provider has not been convicted of, pleaded no contest to, and is not currently subject to a plea in abeyance or diversion agreement for a felony or misdemeanor, [and ]does not have a supported finding from the Department of Human Services, and is not listed on the Utah or national sex offender registry.

(b) During the term of the emergency, the emergency provider may be counted as a provider of care for purposes of maintaining the required care provider to child ratios.

(c) The licensee or certificate holder shall make reasonable efforts to minimize the time that the emergency provider has unsupervised contact with children.

 

KEY: child care facilities, background screenings

Date of Enactment or Last Substantive Amendment: [August 15, 2014]2015

Notice of Continuation: August 3, 2012

Authorizing, and Implemented or Interpreted Law: 26-39