File No. 36879
This rule was published in the October 15, 2012, issue (Vol. 2012, No. 20) of the Utah State Bulletin.
Health, Family Health and Preparedness, Licensing
Notice of Proposed Rule
(Repeal and Reenact)
DAR File No.: 36879
Filed: 09/28/2012 09:24:56 AM
Purpose of the rule or reason for the change:
A federal grant was obtained for the Bureau to develop and implement a new background screening process for health care facility employees. The department was required to enact new legislation to implement the conditions of the grant. The current background screening rule did not meet the federal requirements of the new process, so changes were made to implement the new process. The new process will better protect the vulnerable citizens of Utah that reside in or receive services from health care facilities/agencies.
Summary of the rule or change:
Changes to the rule include: a clearance will now be issued for the employee and is no longer attached to just one facility. In the past a clearance was required for each facility or agency that the employee worked for. The new screening process includes a wrap-back system that will automatically notify the department if a new arrest or conviction happens instead of waiting for a two-year renewal check. In the current system, only direct care staff are screened for background issues. The new rule requires that all employees that have direct patient access be screened, which includes employees that have access to patient medical and financial records. All employees requiring a clearance will be required to submit fingerprints to check against the federal data base. Previously, fingerprints had been required only for people who had lived outside of Utah in the past five years. Several new non-criminal records systems will be checked before clearance is issued, such as Occupational and Professional Licensing and the Federal Office of the Inspector General list of excluded individuals. Rule changes were developed with input from major provider associations, including Utah Health Care, Utah Home Care and the Utah Assisted Living associations.
State statutory or constitutional authorization for this rule:
- Title 26, Chapter 21
Anticipated cost or savings to:
the state budget:
The federal grant money will be utilized to get the new process developed and implemented. After that the fees from the providers will be used to maintain the system and data base. There will be no fiscal impact for state government.
This rule change will have no fiscal impact on local governments because they do not do background screening.
There will be an up-front cost to get all health employees fingerprinted during the first facility renewal. This cost has been subsidized by 42% using federal grant monies. With this subsidy, the change is estimated to be approximately $68,000 to small health care businesses in the next 2 years. There are approximately 100 small businesses affected. However, the amendment will decrease the long-term costs to the small businesses by stopping duplication of efforts for background screening. Once employees are cleared, they will not be required to resubmit finger prints. Many new hires will have been cleared already by other facilities so no new fees will be required upon hire of those cleared employees. The ongoing costs are estimated to be neutral.
persons other than small businesses, businesses, or local governmental entities:
There will be an up-front cost to get all health employees fingerprinted during the first facility renewal. This cost has been subsidized by 42% using federal grant monies. With this subsidy, the change is estimated to be approximately $425,000 to health care businesses in the next 2 years. There are approximately 380 health care businesses affected. However, the amendment will decrease the long-term costs by stopping duplication of efforts for background screening. Once employees are cleared, they will not be required to resubmit finger prints. Many new hires will have been cleared already by other facilities so no new fees will be required upon hire of those cleared employees. The ongoing costs are estimated to be neutral.
Compliance costs for affected persons:
Some health care businesses may pass the initial cost of the rule requirement for fingerprints on to the employees. Individuals that get hired as new health care employees may have in increase of cost for fingerprinting for the first time, of $36.50. However, this rule amendment will decrease the long-term costs to the affected persons by not requiring duplication of background screening processes with job changes. Once an individual is cleared, they will not be required to resubmit finger prints.
Comments by the department head on the fiscal impact the rule may have on businesses:
This new background screening process will better protect vulnerable residents. The one-time cost to business to obtain fingerprints on all employees will have a cost, but impacted providers have been involved in the development. Any negative comments will be carefully evaluated to minimize unnecessary regulatory burden.
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 firstname.lastname@example.org
- 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@example.com
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:
This rule may become effective on:
David Patton, Executive Director
R432. Health, Family Health and Preparedness, Licensing.
R432-35. Background Screening.
(1) The Utah Code, Section 26-21-9.5, requires that a
Bureau of Criminal Identification screening, referred to as BCI,
and a child or disabled or elderly adult licensing information
system screening be conducted on each person who provides direct
care to a patient for the following covered health care agencies
(a) Home health care agencies;
(b) Personal Care agencies
(c) Hospice agencies;
(d) Nursing Care facilities;
(e) Assisted Living facilities;
(f) Small Health Care facilities; and
(g) End Stage Renal Disease Facilities.
The purpose of this rule is to define the circumstances
under which a person who has been convicted of or charged with a
criminal offense or who has a juvenile court substantiated or DHS
supported finding report of severe child abuse or neglect or DHS
substantiated finding of disabled or elder abuse or neglect, may
provide direct care to a patient in a covered health care
facility, taking into account the nature of the criminal offense
and its relation to patient care.
Terms used in this rule are defined in Title 26, Chapter
21. In addition:
(1) "Covered Individual" means all proposed
employees who provide direct patient care in a covered health
care facility, including volunteers, existing employees, persons
contracted to perform direct care and, for residential settings,
all individuals residing in the home where an assisted living or
small health care program is to be licensed, who are 18 years old
(2) "Department" means the Utah Department of
(3) "Substantiated" means a Department of Human
Service finding, at the completion of an investigation by the
Department of Human Services, that there is a reasonable basis to
conclude that one or more of the following types of elder or
disabled adult abuse or neglect has occurred:
(a) physical abuse;
(b) sexual abuse;
(c) sexual exploitation;
(e) medical neglect resulting in death, disability, or
(f) chronic or severe neglect; or
(g) financial exploitation.
(4) "Supported" means a DHS finding, at the
completion of an investigation that there is a reasonable basis
to conclude that one or more of the following types of severe
abuse or neglect has occurred to a child:
(a) severe or chronic physical abuse;
(b) sexual abuse;
(c) sexual exploitation;
(e) medical neglect resulting in death, disability, or
serious illness; or
(f) chronic or severe emotional abuse.
(5) "Unsupervised Contact" means contact with
residents or patients that provides the unsupervised person
opportunity and probability for personal communication or touch
or for access to personal funds and property when not under the
direct supervision of a health care provider or
(6) "Volunteer" means an individual who is not
directly compensated for providing care, including family members
of patients or residents enrolled in the program, whose duties
assigned by a health care provider or employee include
unsupervised contact in a health care facility on a regularly
scheduled basis of one or more times per month.
R432-35-4. Bureau of Criminal Identification.
(1) The Utah Code, Section 26-21-9.5, requires that a BCI
be conducted on covered individuals requesting to be licensed, to
renew a license, or to be employed or volunteer in a covered
health care facility.
(a) The health care facility shall submit applicant
information within ten days of initially hiring an individual,
include fees and releases to the Department to allow the
Department to perform a criminal background screening.
(b) If the BCI indicates that the covered individual has
a criminal record that indicates there is a conviction for a
felony or misdemeanor the Department shall review the criminal
convictions to determine whether to approve the covered
individual for licensing or employment.
(c) If a covered individual applicant has not had
residency in Utah for the last five years, the covered individual
shall submit fingerprints for an FBI national criminal history
(2) The Department shall review any criminal convictions,
consistent with R432-35, to determine if action should be taken
to protect the health and safety of patients and residents
receiving health care services in the covered health care
(3) If the Department takes an action adverse to any
covered individual, based upon the criminal background screening,
the Department shall send a Notice of Agency Action to the health
care provider and the covered individual explaining the action
and the right of appeal.
R432-35-5. Exclusion from Direct Patient Care Due to
Criminal Convictions or Pending Charges.
(1) As required by Utah Code Ann. Subsection
26-21-9.5(6), if a covered individual has been convicted of a
felony or is a misdemeanor that is not excluded under paragraphs
(2) or (3) below, the covered individual may not provide direct
patient care or volunteer. If such a covered individual resides
in a home where health care is provided, the Department may
revoke an existing license or and refuse to permit health care
services in the home until the Department is reasonably convinced
that the covered individual no longer resides in the home or that
the individual will not have unsupervised contact with any child
or disabled or elderly adult in care at the home.
(2) As allowed by Utah Code Ann. Subsection 26-21-9.5(6),
the Department hereby excludes the following misdemeanors and
determines that a misdemeanor conviction listed below does not
disqualify a covered individual from providing direct patient
(a) any class B or C conviction under Chapter 6, Title
76, Offenses Against Property, Utah Criminal Code;
(b) any class B or C conviction under Chapter 6a, Title
76, Pyramid Schemes, Utah Criminal Code;
(c) any class B or C conviction under Chapter 8, Title
76, Offenses Against the Administration of Government, Utah
(d) any class B or C conviction under Chapter 9, Title
76, Offenses Against Public Order and Decency, Utah Criminal
Code, except for 76-9-301.8, Bestiality; 76-9-702, Lewdness; and
76-9-702.5, Lewdness Involving Child; and
(e) any class B or C conviction under Chapter 10, Title
76, Offenses Against Public Health, Welfare, Safety and Morals,
Utah Criminal Code, except for 76-10-1201 to 1229.5, Pornographic
and Harmful Materials and Performances; 76-10-1301 to 1314,
Prostitution; and 76-10-2301, Contributing to the Delinquency of
(3) The Executive Director may exclude, on a case-by-case
basis, other misdemeanors not covered under paragraph (2) 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. The following factors will be used in
deciding under what circumstance, if any, the covered individual
will be allowed to provide direct patient care or to volunteer in
a covered health care facility:
(a) Types and number of offenses;
(b) Passage of time since the offense was committed;
offenses more than five years old do not bar approval or a
license, certificate or employment;
(c) Circumstances surrounding the commission of the
(d) Intervening circumstances since the commission of the
(e) Relationship of the facts under subsections (a)
through (d) of this section to the individual's suitability
to work with children and disabled and elderly adults.
(4) The Department shall rely on the criminal background
screening and search of court records as conclusive evidence of
the conviction and the Department may revoke or deny a license
and employment based on that evidence.
(5) If the Department denies a covered individual a
license or employment based upon the criminal background
screening and the covered individual disagrees with the
information provided by the Criminal Investigations and Technical
Services Division or court record, the covered individual may
challenge the information as provided in Utah Code Ann. Sections
77-18-10 through 77-18-15.
(6) All covered health care facilities must report all
felony and misdemeanor arrests, charges or convictions of covered
individuals to the Department within 48 hours of
R432-35-6. Licensing Information System.
(1) Pursuant to Utah Code 26-21-9.5(3) the Department
shall screen all covered individuals for a history of
substantiated abuse or neglect of a disabled or elder adult or a
supported finding of severe abuse or neglect of a child, from the
licensing information system maintained by the Utah Department of
Human Services (DHS).
(2) If a covered individual appears on the licensing
information system, the Department shall review the date of the
supported or substantiated finding, type of substantiation,
written documentation, and the legal status of the covered
(3) If the Department determines there exists credible
evidence that the covered individual poses a threat to the safety
and health of children or disabled or elder adults being served
in a covered health care facility, the Department shall not grant
or renew a license, or employment.
(4) If the Department denies or revokes a license or
employment based upon the licensing information system, the
Department shall send a Notice of Agency Action to the licensee
and the covered individual.
(5) If the covered individual disagrees with the record
of substantiation of elder or disabled adult abuse or supported
finding of severe child abuse or neglect , he must pursue an
appeal with the DHS or the juvenile court. If the covered
individual agrees with the substantiated or supported finding of
abuse or neglect that was the basis of the Department's
denial or revocation, but disagrees with the Department's
denial or revocation, the covered individual may request a
hearing with the Department.
(a) Upon request, the Department may permit the covered
individual to be employed under supervision until a decision is
reached and if the applicant can demonstrate that the work
arrangement does not pose a threat to the safety and health of
children or disabled or elder adults being served in the licensed
health care facility.
(b) If a covered individual appeals the record of
substantiation or supported finding, the Department may hold the
license or employment denial in abeyance until DHS or the
juvenile court renders a decision,.
(6) If the DHS determines a covered individual has a
substantiated or supported finding of abuse, or neglect after the
Department issues a license, or grants employment, the licensee
and covered individual has five working days to notify the
Department. Failure to notify the Department may result in
revocation of the license.
R432-35-7. Covered Individuals with Arrests or Pending
(1) If the Department determines there exists credible
evidence that a covered individual has been arrested or charged
with a felony or a misdemeanor that would not be excluded under
R432-5(2), the Department may act to protect the health and
safety of patients and residents in covered health care
facilities that the individual may have contact with. The
Department may revoke or suspend any license or employment if
necessary to protect the health and safety of patients and
residents in care.
(2) Upon request, the Department may permit the covered
individual to be employed under supervision until the felony or
misdemeanor charge is resolved, if the facility can demonstrate
that the individual can work without posing a threat to the
safety and health of the resident or patient being served in the
licensed health care facility.
(3) If the Department denies or revokes a license, or
restricts employment based upon the arrest or felony or
misdemeanor charge, the Department shall send a Notice of Agency
Action to the licensee and the covered individual notifying them
that they may request a hearing with the Department.
(4) The Department may hold the license or employment
denial in abeyance until the arrest or felony or misdemeanor
charge is resolved.
The department may impose civil monetary penalties in
accordance with Title 26, Chapter 23, Utah Health Code
Enforcement Provisions and Penalties, if there has been a failure
to comply with the provisions of this chapter, or rules
promulgated pursuant to this chapter, as follows:
(1) if significant problems exist that are likely to lead
to the harm of an individual resident, the department may impose
a civil penalty of $50 to $1,000 per day; and
(2) if significant problems exist that result in actual
harm to a resident, the department may impose a civil penalty of
$1,050 to $10,000 per day.]
KEY: health care facilities
Date of Enactment or Last Substantive Amendment: [
October 1, 2011]
Notice of Continuation: May 27, 2008
Authorizing, and Implemented or Interpreted Law: 26-21-9.5
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For questions regarding the content or application of this rule, please contact Joel Hoffman at the above address, by phone at 801-538-6279, by FAX at 801-538-6024, or by Internet E-mail at firstname.lastname@example.org; 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@example.com.