DAR File No. 39913

Human Services, Administration, Administrative Services, Licensing

Rule R501-14

Background Screening

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 39913
Filed: 11/04/2015 08:24:52 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being repealed and reenacted to formalize the administrative process changes required by H.B. 145 passed during the 2015 General Session.

Summary of the rule or change:

H.B. 145 (2015) significantly changed the Department of Human Services (DHS), Office of Licensing background screening process. The changes are outlined well in the bill and subsequent statute changes, but include moving Office of Licensing background screenings from name-based checks to fingerprint-based checks, providing for a conditional approval process, and adding the requirement to include juvenile court checks. Stakeholders participated in the writing of this rule.

State statutory or constitutional authorization for this rule:

• Section 62A-2-120

Anticipated cost or savings to:

the state budget:

This bill moved individuals who used to have only name-based checks to having fingerprint-based checks at a cost of either $34.75 or $52.75 per person. These funds go to the Department of Public Safety for processing of prints and enrollment in either a rap back or a FBI rap back subscription service that provides feedback regarding past criminal behavior and notification upon new criminal activity. State agencies that hold licenses with the Office of Licensing will see increased costs. Costs were addressed in the fiscal note analysis associated with H.B. 145 (2015). Funds were allocated by the legislature to DHS to defray costs for licensees, and passed on through provider rates for any agencies that held contracts with DHS.

local governments:

This bill moved individuals who used to have only name-based checks to having fingerprint-based checks at a cost of either $34.75 or $52.75 per person. These funds go to the Department of Public Safety for processing of prints and enrollment in either a rap back or a FBI rap back subscription service that provides feedback regarding past criminal behavior and notification upon new criminal activity. Local governments that hold licenses with the Office of Licensing will see increased costs. Costs were addressed in the fiscal note analysis associated with H.B. 145 (2015). Funds were allocated by the legislature to DHS to defray costs for licensees, and passed on through provider rates for any agencies that held contracts with DHS.

small businesses:

This bill moved individuals who used to have only name-based checks to having fingerprint-based checks at a cost of either $34.75 or $52.75 per person. These funds go to the Department of Public Safety for processing of prints and enrollment in either a rap back or a FBI rap back subscription service that provides feedback regarding past criminal behavior and notification upon new criminal activity. Small businesses that hold licenses with the Office of Licensing will see increased costs. Costs were addressed in the fiscal note analysis associated with H.B. 145 (2015). Funds were allocated by the legislature to DHS to defray costs for licensees, and passed on through provider rates for any agencies that held contracts with DHS. Private providers with no DHS contracts did not receive state funds via provider rates to assist in defraying this costs, but are absorbing them as the costs of doing business.

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

This bill moved individuals who used to have only name-based checks to having fingerprint-based checks at a cost of either $34.75 or $52.75 per person. These funds go to the Department of Public Safety for processing of prints and enrollment in either a rap back or a FBI rap back subscription service that provides feedback regarding past criminal behavior and notification upon new criminal activity. Larger businesses that hold licenses with the Office of Licensing will see increased costs. Costs were addressed in the fiscal note analysis associated with H.B. 145 (2015). Funds were allocated by the legislature to DHS to defray costs for licensees, and passed on through provider rates for any agencies that held contracts with DHS. Private providers with no DHS contracts did not receive state funds via provider rates to assist in defraying this costs, but are absorbing them as the costs of doing business.

Compliance costs for affected persons:

Licensed providers are responsible to comply with H.B. 145 (2015), including the increased compliance costs of fingerprint-based background checks. DHS received $330,000 General Fund for H.B. 145 (2015) (to fund one Office of Licensing employee, plus provide funds to supplement providers costs due to the increased requirements). There was also additional $184,400 in federal funds and Medicaid bringing the total to $514,400. These funds were distributed to those providers who are specifically serving DHS clients via contract.

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

The fiscal impact of this rule is significant, yet required by H.B. 145 (2015). The fiscal ramifications were well discussed during the underlying bill's progression through the legislative session and subsequently included a legislative fiscal allotment to DHS. A public hearing on the fees related to this bill was held on 09/18/2015, and no concerns were raised.

Ann Williamson, Executive Director

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

Human Services
Administration, Administrative Services, Licensing
195 N 1950 W 1ST FLR
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at jhjonesrobbins@utah.gov
• Jennifer Stahle at the above address, by phone at 801-538-9897, by FAX at 801-538-4553, or by Internet E-mail at jenstahle@utah.gov

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:

01/03/2016

This rule may become effective on:

01/10/2016

Authorized by:

Diane Moore, Director

R501. Human Services, Administration, Administrative Services, Licensing.

[ R501-14. Background Screening.

R501-14-1. Authority and Purpose.

(1) This Rule is authorized by and implements Sections 62A-2-108.3, 62A-2-120, 62A-2-121, 62A-2-122, 62A-3-104.3, 62A-5-103.5, 78B-6-128, and 78B-6-113.

(2) This Rule establishes the circumstances under which an applicant may have direct access or provide services to a child or vulnerable adult when the person has a criminal history record, is listed in the Licensing Information System or the statewide database of the Division of Aging and Adult Services, or when juvenile court records show that a court made a substantiated finding under Section 78A-6-323 that the person committed a severe type of child abuse or neglect.

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

 

R501-14-2. Definitions.

(1) "Abuse" may include "severe emotional abuse", "severe physical abuse", and "emotional or psychological abuse", as these terms are defined in Sections 62A-4a-101 and Section 62A-3-301.

(2) "Applicant" means a person whose identifying information is submitted to the Department of Human Services Office of Licensing under Sections 62A-2-108.3, 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78B-6-128, and 78B-6-113.

(3) "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.

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

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

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

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

(8) "Directly supervised" is defined in 62A-2-120(5).

(9) "Fingerprints" means an individual's fingerprints as copied electronically through a live-scan fingerprinting device or on two ten-print fingerprint cards by a law enforcement agency, an agency approved by the BCI, or an agency approved by the Office of Licensing.

(10) "Human services program" is defined in Section 62A-2-101.

(11) "Identifying information" means an applicant's:

(a) current and former names, aliases, and addresses,

(b) date of birth,

(c) social security number, and

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

(e) Identifying information includes an applicant's fingerprints when required by law or rule, certified copies of applicable court records, and other records specifically requested by the Office of Licensing.

(12) "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.

(13) "Neglect" may include "severe neglect", as these terms are defined in Sections 62A-4a-101 and 62A-3-301.

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

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

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

(17) "Supported" is defined in Section 62A-4a-101.

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

 

R501-14-3. Background Screening Procedure.

(1)(a) An applicant for initial background screening or annual background screening renewal shall legibly complete, date and sign a background screening application and consent on a form provided by the Office of Licensing, and attach all required identifying information.

(b) An applicant for annual background screening renewal shall submit a background screening application and identifying information no later than fourteen days preceding the expiration date of the current background screening approval.

(c) An applicant for initial background screening or annual background screening renewal shall disclose all criminal charges, including pending charges, and all supported or substantiated findings of abuse, neglect or exploitation on the background screening application.

(2)(a) An applicant for initial background screening or annual background screening renewal who has not continuously lived in Utah for the five years immediately preceding the day the application is submitted shall submit fingerprints, and a cashiers' check or money order for the cost of a FBI national criminal history record check, with the background screening application.

(b) An applicant has not continuously lived in Utah for the five years immediately preceding the date of the application if the applicant has spent six or more consecutive weeks outside Utah, including but not limited to education, volunteer or employment activities, military duty, or vacations.

(c) An applicant has not continuously lived in Utah for the five years immediately preceding the date of the application if the applicant presents an out-of-state driver license or an out-of-state identification card.

(d) Notwithstanding any other provision of Rule R501-14, an applicant shall submit fingerprints if the background screening is being conducted for the purpose of licensing a prospective foster home or approving a prospective adoptive placement of a child in state custody.

(3)(a) Notwithstanding Subsection R501-14-3(2)(a), an applicant for background screening who has continuously lived in Utah for the five years immediately preceding the day the application is submitted, except for time spent outside of the United States and its territories, is not required to submit fingerprints.

(b) An applicant for annual background screening renewal who has continuously lived in Utah at all times since the date of the initial background screening approval is not required to submit fingerprints with the renewal application.

(4) An applicant who has lived outside of the United States during the five years immediately preceding the date of the application shall attach an original or certified copy of:

(a) a criminal history report from each country lived in;

(b) a letter of honorable release from U.S. military or full-time ecclesiastical service, from each country lived in; or

(c) other written verification of criminal history from each country lived in, as approved by the Office of Licensing Background Screening Unit supervisor.

(5)(a) An applicant shall submit the completed application and consent form, and all required identifying information, to the applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only).

(b) The applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), Area Agency on Aging (for Personal Care Attendant applicants only), or Division of Services for People With Disabilities (for Direct Service Worker applicants only), shall:

(i) inspect the applicant's state driver's license or state identification card and make a good faith effort to determine that it does not appear to have been forged or altered;

(ii) inspect the copy of applicant's state driver's license or state identification card and make a good faith effort to determine that it appears to be identical to the original; and

(iii) forward the inspected copy of applicant's state driver's license or state identification card, the completed application and consent form, and all other required identifying information, to the Office of Licensing background screening unit within five calendar days after the applicant completes and signs the application.

(6) 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.

(7)(a) Identifying information submitted pursuant to Sections 62A-2-108.3, 62A-2-120, 62A-3-104.3, 62A-5-103.5, 78B-6-113, and 78B-6-128 shall be used to search criminal history records, the Licensing Information System, juvenile court records under Section 78A-6-323, and the statewide database.

(i) Identifying information submitted in accordance with Section 62A-2-120(1)(f) shall also be used to check the child abuse and neglect registry in each state where the applicant resided in accordance with Section 62A-2-120(1)(g).

(b) In accordance with Section 62A-5-103.5, a direct service worker who is a direct ancestor or descendant, or who is an aunt, uncle or sibling of the person to whom services are rendered, shall be exempt from a criminal history record search, but shall remain subject to a search of the Licensing Information System, juvenile court records under Section 78A-6-323, and the statewide database.

(8)(a) Except as permitted by Section 62A-2-120(5), an applicant for an initial background screening shall have no direct access to a child or vulnerable adult prior to receiving written confirmation of background screening approval from the Office of Licensing.

(b) Except as permitted by Section 62A-2-120(5), an applicant seeking annual background screening renewal shall have no direct access to a child or vulnerable adult after the background screening expiration date and prior to receiving written confirmation of background screening approval from the Office of Licensing.

(9) Upon receipt of a signed, legible, completed application and identifying information, the Office of Licensing shall:

(a) investigate and make a preliminary determination of whether the applicant has been charged with any crime and the disposition of any charges; and

(b) search the Licensing Information System, juvenile court records, and the statewide database, and make a preliminary determination of whether the applicant has any supported or substantiated findings of abuse, neglect or exploitation.

(10)(a) The Office of Licensing may defer action on an application until the applicant submits all additional information required by the Office of Licensing.

(b) The Office of Licensing may deny an application in the event that an applicant fails to provide all additional information required by the Office of Licensing.

(11) The Office of Licensing may notify an applicant of its preliminary determination that the applicant may have a criminal history outside of Utah, and require an applicant to:

(a) submit fingerprints, and a cashier's check or money order for the cost of a nationwide criminal history check, within 15 calendar days of a letter of notification;

(b) obtain and submit a certified copy of the applicant's criminal history or records from local, state, federal, or foreign officials within 15 calendar days of a letter of notification.

(12)(a) The Office of Licensing shall send all written communications to the applicant or to the applicable human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only) by first-class mail.

(b) A human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only) shall provide the applicant with a copy of all written communication from the Office of Licensing within 5 calendar days after the date it is received.

(13) The applicant shall promptly notify the Office of Licensing of any change of address while the application remains pending.

 

R501-14-4. Results of Screening.

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

(b) The Office of Licensing shall notify the applicant, the applicable licensing specialist, human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only), that the applicant's background screening application is approved.

(c) The approval granted by the Office of Licensing shall be valid for a period not to exceed one calendar year from the date of approval.

(i) Notwithstanding Subsection R501-14-4(1)(c), an applicant's background screening approval that is issued for the purpose of a preplacement adoptive evaluation in accordance with Section 78B-6-128 shall be valid for 18 calendar months from the date of approval.

(d) An approval granted by the Office of Licensing shall not be transferable, except as provided in Section R501-14-9.

(e) Except as provided in Section R501-14-9, a new application shall be submitted each time an applicant may have direct access or provide services to a child or vulnerable adult at any human services program other than the program identified on the initial application.

(2) The Office of Licensing shall deny an application for background screening in accordance with Subsections 62A-2-120(3) and 62A-2-120-(8).

(3) The Office of Licensing shall refer an application to the Comprehensive Review Committee for a comprehensive review in accordance with Section 62A-2-120(4).

 

R501-14-5. Comprehensive Review Committee.

(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;

(c) the Division of Child and Family 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;

(g) Public Guardian; and

(h) 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 of Licensing member shall chair the Comprehensive Review Committee as a non-voting member.

(4) Five voting members shall constitute a quorum.

(5) The Comprehensive Review Committee shall conduct a comprehensive review of an applicant's background screening application, criminal history records, abuse, neglect or exploitation records, and related circumstances, in accordance with Section 62A-2-120(4).

 

R501-14-6. Comprehensive Review Investigation.

(1) The Comprehensive Review Committee shall not deny a background screening application without the Office of Licensing 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 applicant wants the Comprehensive Review Committee to consider;

(c) the Comprehensive Review Committee evaluates information using the criteria established by Section 62A-2-120(4)(b), and the applicant may specifically address these issues; and

(d) submissions must be received within 15 calendar days of the written notice.

(2)(a) The Office of Licensing shall gather information described in Section 62A-2-120(4)(b) and provide available information to the Comprehensive Review Committee.

(b) The Office of Licensing 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.

(i) The Office of Licensing may defer action on an application until the applicant submits all additional information required by the Office of Licensing.

(ii) The Office of Licensing may deny an application in the event that an applicant fails to provide all additional information required by the Office of Licensing.

 

R501-14-7. Comprehensive Review Determination.

(1) The Comprehensive Review Committee shall only consider applications presented by the Office of Licensing. The Comprehensive Review Committee shall evaluate the information provided by the Office of Licensing and any information provided by the applicant.

(2) 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.

(3) 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 to a child or vulnerable adult.

(4) The Office of Licensing shall approve or deny the applicant's background screening application in accordance with the recommendation of the Comprehensive Review Committee, and send written notification to the applicant, the applicant's licensing specialist, the licensed human services program the applicant is associated with (if any), a certified local inspector applicant's local government employer (if any), a person described in Subsections 62A-3-101(9)(a)(i) through (iv) (if any), or a direct service worker's employer (if any).

 

R501-14-8. Post-Approval Responsibilities.

(1) An applicant, a human services program the applicant is associated with (if any), a certified local inspector applicant's local government employer (if any), a person described in Subsections 62A-3-101(9)(a)(i) through (iv) (if any), and a direct service worker's employer (if any), shall immediately notify the Office of Licensing if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records under Section 78A-6-323, or the statewide database after a background screening application is approved.

(a) An applicant who is associated with a human services program shall immediately notify the human services program if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records under Section 78A-6-323, or the statewide database.

(2) An applicant who has received an approved background screening shall resubmit an application and identifying information to the Office of Licensing within ten calendar days after being charged with any felony, misdemeanor, or infraction, or being listed in the Licensing Information System, the statewide database, or juvenile court records under Section 78A-6-323.

(3) An applicant who has been charged with any felony, misdemeanor, or infraction or listed in the Licensing Information System or the statewide database, or juvenile court records under Section 78A-6-323, after a background screening application is approved shall have no unsupervised direct access to a child or vulnerable adult until after an application and identifying information have been resubmitted to the Office of Licensing and a current background screening approval is received from the Office of Licensing.

(4)(a) An applicant charged with an offense for which there is no final disposition shall inform the Office of Licensing of the current status of each case.

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

(c) An applicant shall submit a certified copy of judicial documentation that indicates the current status of the case at least once every 3 months until final disposition.

(5) The Office of Licensing 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 statewide database, or juvenile court records under Section 78A-6-323; or

(b) fails to provide required current status information; and

(c) will likely create a risk of harm to a child or vulnerable adult, as determined by the Office of Licensing.

(6) The Office of Licensing shall process identifying information received pursuant to Subsection R501-14-8(2) in accordance with Rule R501-14.

 

R501-14-9. Confidentiality.

(1) The Office of Licensing may disclose criminal background screening information, including information acknowledging the existence or non-existence of a criminal history, only to the Applicant, the applicable human services program, local government employer (for certified local inspector applicants only), the Area Agency on Aging (for Personal Care Attendant applicants only), or the Division of Services for People With Disabilities (for Direct Service Worker applicants only), and in accordance with the Government Records Access and Management Act, Section 63G-2-101, et seq.

(2) Except as described below, background screening approvals may not be transferred or shared between human service programs.

(a) A licensed child-placing agency may provide the approval granted by the Office of Licensing 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).

(b) A licensed human services program may provide a copy of the approval granted by the Office of Licensing to another licensed human services program with the prior written consent of the person who is the subject of the approval.

(c) A licensed human services program may permit an individual to have direct access to a child or vulnerable adult if:

(i) the program receives a copy of the approval granted by the Office of Licensing for the person from another licensed human services program;

(ii) both the sending and receiving human services programs are licensed to provide the same categories of services to the same client populations; and

(iii) the program receives written confirmation from the Office of Licensing that the background screening approval has not expired or been revoked.

 

R501-14-10. Retention of Background Screening Information.

A human services program shall retain the background screening information of all individuals associated with the program for a minimum of eight years after the termination of the individual's association with the program.

 

R501-14-11. Expungement.

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

 

R501-14-12. Administrative Hearing.

A notice of agency action that denies or revokes the applicant's background screening application shall inform the applicant of the right to appeal in accordance with Administrative Rule 497-100 and Section 63G-4-101, et seq.

 

R501-14-13. Compliance.

Any licensee that is in operation on the effective date of this rule shall be given 30 days after the effective date to achieve compliance with this rule.]

R501-14. Human Service Program Background Screening.

R501-14-1. Authority and Purpose.

(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

(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-6-105and 62A-3-301.

(2) "Applicant" means a person whose identifying information is submitted to 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-2-101(2)(c).

(3) "Background Screening Agent" means the applicable licensing specialist, human services program, Area Agency on Aging (for Personal Care Attendant applicants only), or DHS Division of Services for People with Disabilities (for Direct Service Worker applicants only).

(4) "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.

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

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

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

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

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

(10) "Expiration date" is 395 days from the approval date of the current screening application or one year from the current license start date, whichever is longer. In the event that a human services program has more than one license, the current license start date means the earliest current license start date. A background screening approval that has expired is void.

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

(12) "Fingerprints" means an individual's fingerprints as copied electronically through a live-scan fingerprinting device or on two ten-print fingerprint cards by a law enforcement agency, an agency approved by the BCI, or Background Screening Agent.

(13) "Human services program" is defined in Section 62A-2-101.

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

(15) "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.

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

(17) "Office" means the Office of Licensing within the Utah Department of Human Services.

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

(19) "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

(c) other records specifically requested in writing by the Office.

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

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

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

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

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

(25) "WIN Database" is as defined in Section 53-10-108, and includes information from Alaska, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming.

 

R501-14-3. Initial Background Screening Procedure.

(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 who presents only a foreign country identification card shall:

(a) enroll in the FBI rap back system; and

(b) submit an original or certified copy of a government-issued criminal history report from that country.

(4) An applicant who presents only a US passport or state issued identification card from any state other than Utah, Alaska, Idaho, Montana, Nevada, Oregon, Washington, and Wyoming shall:

(a) enroll in the FBI rap back system.

(5) 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 and sign the application; and

(c) forward the background screening application, and applicable fee to the Office background screening unit.

 

R501-14-4. Renewal Background Screening Procedure.

(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.

(3) The background screening application, personal identifying information, and applicable fee 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 on rap back is not required to submit fingerprints for a rap back system search and applicable rap back fees unless:

(i) the applicant's most current background screening has expired;

(ii) the human services program with which the applicant is associated requires a rap back system search;

(iii) the applicant wishes to provide services with another licensee and has not submitted fingerprints for a rap back system search and applicable rap back fees;

(iv) the applicant does not present a current, valid identification card issued by the State of Utah; or

(v) the renewal application is submitted on or after July 1, 2017 and the applicant is not already enrolled in rap back.

(4) A licensed human services program wishing to submit background screening renewal applications for multiple applicants associated with the licensee 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 rap back with the Office;

(ii) with a current, non-expired 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:

I. criminal arrests or charges; II supported or substantiated findings of abuse, neglect or exploitation, or

III. any pending or unresolved criminal issues.

(b) Summary logs shall contain:

(i) applicant 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 licensed human services program choosing to submit a summary log of the renewing applicants in lieu of individuals' applications shall maintain documentation signed by each applicant and attesting 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 determine that it does not appear to have been forged or altered;

(b) review and sign the application; and

(c) forward the background screening application, and applicable fee to the Office background screening unit within 30 calendar days after the applicant completes and signs the application and no later than 15 calendar days preceding the background screening expiration date.

 

R501-14-5. General Background Screening Procedure.

(1)(a) 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.

(b) 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)(a) Except as permitted by Section 62A-2-120(9), an applicant for an initial background screening shall have no direct access to a child or vulnerable adult prior to receiving written confirmation of background screening approval from the Office.

(b) Except as permitted by Section 62A-2-120(9), an applicant seeking background screening renewal shall have no direct access to a child or vulnerable adult after the background screening expiration date and prior to receiving written confirmation of background screening approval from the Office.

(3)(a) The Office may defer action on an application for up to 30 calendar days until the applicant submits all additional information required by the Office.

(b) The Office may deny an application in the event that an applicant fails to provide all additional information required by the Office.

An applicant whose background screening has been denied shall have no further direct access.

(4) The Office may notify a program that the applicant must:

(a) submit fingerprints for a FBI Rap Back System check within 15 calendar days of a letter of notification; and/or

(b) obtain and submit a certified copy of the applicant's criminal history or records from local, state, federal, or foreign officials within 30 calendar days of a letter of notification.

(5)(a) The Office shall send all written communications to the applicant or to the applicable Background Screening Agent by first-class mail.

(b) A Background Screening Agent shall provide the applicant with a copy of all written communication from the Office within 5 calendar days after the date it is received.

(c) Notwithstanding R501-14-5(5)(a), if the Office sends an applicant a sealed letter in care of or via the Background Screening Agent, the letter shall be provided to the applicant unopened.

(6) The applicant shall promptly notify the Office of any change of address while the application remains pending.

(7) 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 program 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.

 

R501-14-6. Background Screening Fees.

(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. Results of Screening.

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

(b) The Office shall notify the applicant or the Background Screening Agent when an applicant's background screening application is approved.

(c) The approval granted by the Office shall be valid for a period not to exceed 395 days from the date of approval.

(d) An approval granted by the Office shall not be transferable, except as provided in Section R501-14-11.

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

(b) A program 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) If the Office does not provide a standard approval before the expiration date of the conditional approval, the applicant shall no unsupervised direct access.

(f) 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 Subsections 62A-2-120(5), (6), (8), and (13).

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

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

(a) 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.

 

R501-14-8. Comprehensive Review Committee.

(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;

(c) the Division of Child and Family 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;

(g) Public Guardian; and

(h) 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) Five voting members shall constitute a quorum.

(5) The Comprehensive Review Committee shall conduct a comprehensive review of an applicant's background screening application, criminal history records, abuse, neglect or exploitation records, and related circumstances, in accordance with Section 62A-2-120(6).

 

R501-14-9. Comprehensive Review Investigation.

(1) The Comprehensive Review Committee shall not deny 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 applicant wants the Comprehensive Review Committee to consider;

(c) the Comprehensive Review Committee evaluates information using the criteria established by Section 62A-2-120(6)(b), and the applicant may specifically address these issues; and

(d) submissions must be received within 15 calendar days of the written notice.

(2)(a) The Office shall gather information described in Section 62A-2-120(6)(b) and provide available information to the Comprehensive Review Committee.

(b) 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.

(i) The Office may defer action on an application for up to than 30 calendar days until the applicant submits all additional information required by the Office.

(ii) The Office may deny an application in the event that an applicant fails to provide all additional information required by the Office.

(iii) An applicant whose background screening has been denied shall have no direct access.

 

R501-14-10. Comprehensive Review Determination.

(1) The Comprehensive Review Committee shall only consider applications and information presented by the Office. The Comprehensive Review Committee shall evaluate the information provided by the Office and any information provided by the applicant.

(a) A background screening approval may be transferred to other human service programs, therefore the Comprehensive Review Committee shall evaluate whether direct access should be authorized for all types of programs.

(2) The Comprehensive Review Committee may, by unanimous vote that includes a representative from each entity identified in R501-14-8(1), identify infraction or misdemeanor offenses that create no risk of harm to a child or vulnerable adult.

(a) The Office may approve the background screening of an applicant whose only offenses are those identified in R501-14-10(2).

(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 to a child or vulnerable adult.

(5) The Office shall approve or deny the applicant's background screening application in accordance with the recommendation of the Comprehensive Review Committee, and send written notification to the applicant or Background Screening Agent.

(6) 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.

(1) An applicant is eligible to have his/her current background screening approval shared with or transferred to another program only if the applicant is currently enrolled on the rap back system.

(2) An applicant who wishes to have his/her current background screening shared with or transferred to another program shall complete a background screening application and identify the name of the original program.

(3) An applicant shall not have unsupervised direct access 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.

(1) An applicant and Background Screening Agent shall immediately notify the Office if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records, or the statewide database after a background screening application is approved.

(a) An applicant who is associated with a licensee shall immediately notify the licensee if the applicant is charged with any felony, misdemeanor, or infraction, or listed in the Licensing Information System, juvenile court records, or the statewide database.

(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 statewide database, or juvenile court records.

(3) An applicant who has been charged with any felony, misdemeanor, or infraction or listed in the Licensing Information System or the statewide database, or juvenile court records, after a background screening application is approved shall have no unsupervised direct access to a child or vulnerable adult 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)(a) An applicant charged with an offense for which there is no final disposition shall inform the Office of the current status of each case.

(b) The Office shall determine whether the charge could require a denial or committee review, and if so, notify the applicant to submit a certified 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.

(c) An applicant shall submit a certified 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 statewide database, or juvenile court records; and

(b) fails to provide required current status information.

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

(7) A Background Screening Agent shall notify the Office when an applicant is no longer associated with the program no later than five months from the date of termination.

(a) The Office shall verify that the applicant is not associated with another program, and notify BCI within six months of the date that the applicant is no longer associated with any licensee.

 

R501-14-13. Confidentiality.

(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 and the Background Screening Agent, and 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 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.

A human services program shall retain the background screening information of all individuals associated with the program for a minimum of eight years after the termination of the individual's association with the program.

 

R501-14-15. Expungement.

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

 

R501-14-16. Administrative Hearing.

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.

 

KEY: licensing, background screening, fingerprinting

Date of Enactment or Last Substantive Amendment: [September 15, 2007]2016

Notice of Continuation: October 6, 2010

Authorizing, and Implemented or Interpreted Law: 62A-2-108 et seq.