This filing was published in the 01/01/2009, issue, Vol. 2009, No. 1, of the Utah State Bulletin.
Health, Health Systems Improvement, Child Care Licensing
R430-6
Background Screening
DAR File No.: 31820
Filed: 12/15/2008, 03:47
Received by: NL
This change is in response to public comments received on the proposed rule. In these public comments, concerns were raised about allowing individuals with certain alcohol-related crimes involving juveniles to be employed in a child care facility regulated by the Department of Health.
The change modifies which Misdemeanor A convictions would not prohibit an individual from being employed in a regulated child care program, if it has been ten years or more since the disqualifying Misdemeanor A offense. It prohibits individuals convicted of certain alcohol-related crimes involving juveniles from working in a child care facility regulated by the Department of Health. It also excludes individuals convicted of providing a weapon to a violent minor. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed repeal and reenactment that was published in the September 1, 2008, issue of the Utah State Bulletin, on page 54. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike out indicates text that has been deleted. You must view the change in proposed rule and the proposed repeal and reenactment together to understand all of the changes that will be enforceable should the agency make this rule effective.)
Title 26, Chapter 39
There are no anticipated costs or savings to the state budget, because this rule change does not affect the number of background screenings conducted by Department of Health staff, nor the time it takes to conduct a background screening.
If a local government operates a child care program, they may see a cost resulting from not being able to employ some individuals they would have been able to employ otherwise. Because we have no way of knowing the number of individuals seeking employment that would be affected by this change, the division cannot reasonably estimate the cost savings to local governments.
All child care programs are small businesses. These programs may see a cost resulting from not being able to employ some individuals they would have been able to employ otherwise. Because we have no way of knowing the number of individuals seeking employment that would be affected by this change, the division cannot reasonably estimate the cost savings to local governments.
Because this change does not increase any of the requirements for employment in a regulated child care program, there will be no compliance costs for affected programs.
This change to prohibit individuals convicted of certain alcohol-related crimes involving juveniles from working in a child care facility is in response to public comment. The fiscal impact should be minor and the protection to the public outweighs that small cost. David N. Sundwall, MD, Executive Director
Teresa Whiting at the above address, by phone at 801-538-6320, by FAX at 801-538-6325, or by Internet E-mail at TWHITING@utah.gov
02/02/2009
02/09/2009
David N. Sundwall, Executive Director
R430. Health, Health Systems Improvement, 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 from the Department, or a currently licensed or certified child care provider who is applying for a renewal of their child care license or certificate.
(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.
(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;[
and]
(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) "Involved with child care" means to provide child care, volunteer, own, operate, direct, be employed in, or function as a member of the governing body of a child care program with a license or certificate issued by the Department.
(6) "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.
(7) "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) "Volunteer" means an individual who receives no form of direct or indirect compensation for providing care.
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 41-6a-502, Driving under the influence of alcohol, drugs, or a
combination of both or with specified or unsafe blood alcohol concentration,
where the penalty falls under 41-6a-503;
(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;
[(ii)](iii) 76-10-509.7, Parent or Guardian Knowing of a
Minor's Possession of a Dangerous Weapon;
[(iii)](iv) 76-10-1201 to 1229.5, Pornographic Material or Performance;
[(iv)](v) 76-10-1301 to 1314, Prostitution; and
[(v)](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 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 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 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, 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.
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 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.
KEY: child care facilities
Date of Enactment or
Last Substantive Amendment: [February
6, 2006]2009
Notice of Continuation: August 13, 2007
Authorizing, and Implemented or Interpreted Law: 26-39
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For questions regarding the content or application of this rule, please contact Teresa Whiting at the above address, by phone at 801-538-6320, by FAX at 801-538-6325, or by Internet E-mail at TWHITING@utah.gov For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764).
Last modified: 12/30/2008 1:03 PM