DAR File No. 40102

Education, Rehabilitation

Rule R280-204

Utah State Office of Rehabilitation Employee Background Check Requirement

Notice of Proposed Rule

(Amendment)

DAR File No.: 40102
Filed: 01/14/2016 10:00:23 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R280-204 is amended to provide technical and conforming changes to be in compliance with the "Utah Administrative Rule Drafting Manual".

Summary of the rule or change:

The amendments for Rule R280-204 provide technical and conforming changes throughout the rule.

State statutory or constitutional authorization for this rule:

• Subsection 53A-1-401(3)
• Section 53A-24-103

Anticipated cost or savings to:

the state budget:

The amendments to this rule provide technical and conforming changes, which will likely not result in any cost or savings to the state budget.

local governments:

The amendments to this rule provide technical and conforming changes, which will likely not result in any cost or savings to local government.

small businesses:

The amendments to this rule provide technical and conforming changes, which will likely not result in any cost or savings to small businesses.

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

The amendments to this rule provide technical and conforming changes, which will likely not result in any cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

The amendments to this rule provide technical and conforming changes, which will likely not result in any compliance costs for affected persons.

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

To the best of my knowledge, there should be no fiscal impact on businesses resulting from the amendments to this rule.

Sydnee Dickson, Acting State Superintendent

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

Education
Rehabilitation
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7656, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@schools.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:

03/02/2016

This rule may become effective on:

03/09/2016

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

R280. Education, Rehabilitation.

R280-204. Utah State Office of Rehabilitation Employee Background Check Requirement.

R280-204-[2]1 . Authority and Purpose.

[A.](1) This rule is authorized by:

(a) Section 53A-24-103, which places the USOR under the policy direction of the Board[.]; and

(b) [The Board is authorized under]Subsection 53A-1-401(3), which allows the Board to adopt rules and policies in accordance with its responsibilities.

[B.](2) The purpose of this rule is to establish[definitions and] procedures :

(a) under which a criminal background check[s] may be required of a designated USOR employee[s and]or volunteer[s]; and

(b) under which an employee[s], prospective employee[s], [and]or volunteer[s] may receive notice of required criminal background check requirements and review.

 

R280-204-[1]2 . Definitions.

[A.](1) "BCI" means the Utah Bureau of Criminal Identification.

[B. "Board" means the Utah State Board of Education.]

[C.](2) "Criminal background check" means :

(a) the submission by an employee of fingerprints :

(i) through a law enforcement unit[,];

(ii) through the [Utah State Office of Education] paper[/]or card fingerprinting process established by the Superintendent; or

(iii) by means of an electronic fingerprinting scanning machine[,];

(b) the review by[the] BCI for comparison with recorded arrests and convictions ; and

(c) the discussion or explanation of resulting criminal arrest or conviction information as determined by this rule and USOR procedures.

[D.](3) "Significant unsupervised access" means a period of time that an employee, volunteer , or intern, covered by this rule:

(a) may spend with a [Rehabilitation]USOR client during which the employee or volunteer is alone with the client for more than a brief time[,];

(b) provides services for a USOR client[s] protected under this rule on a regular basis by assignment[,]; or

(c) who generally works with USOR clients protected under this rule.

(4) "Superintendent" mean the State Superintendent of Public Instruction or the Superintendent's designee.

[E. "USOE" means the Utah State Office of Education.]

[F.](5) "USOR" means the Utah State Office of Rehabilitation.

[G.](6) "USOR employee" means an employee[s], including a consultant[s], temporary employee[s], intern[s] and traditional employee[s] of the USOR or an agenc[ies]y or subdivision[s] of the USOR.

 

R280-204-3. Criminal Background Check Requirement for Designated USOR Employees.

[A.](1) The USOR Executive Director shall ensure that a criminal [B]background check[s shall be]is completed [for]by a[ll] USOR employee[s] hired, transferred, or assigned to the USOR[after February 28, 2003] who ha[ve]s significant unsupervised access to a client[s].

[B. Background checks shall be completed on all designated USOR employees by July 1, 2007.]

[C.](2) A criminal [B]background check[s] shall be completed on a designated USOR employee[s] hired before March 2, 2006.

[D.](3) The USOR Executive Director shall review a supervisor 's recommendations of a USOR employee position[s] identified for a criminal background check[s] under Subsection [R280-204-3B and C](1) and designate employee and volunteer positions for which a criminal background check[s are] is necessary.

(4) A [D]designated USOR employee[s and] or volunteer[s] shall receive adequate notice of the required criminal background check from the[ir] employee's or volunteer's supervisors.

[E.](5) A[ll] USOR volunteer[s] may be required, following reasonable notice, to complete a criminal background check.

 

R280-204-4. Criminal Background Check Requirement for USOR Employees[Hired After March 1, 2006].

[A.](1) Except as provided in Subsection (2), the USOR shall require a criminal background check for the following:

(a) an [E]employee[s] hired for a USOR position[s] after March 1, 2006 in a position[s] designated by the USOR Executive Director[shall be required to complete a criminal background check and review] prior to final and official hiring by the USOR[.];

[B.](b) a [Background checks shall be required for ]prospective transfer[s] from outside the USOR after March 1, 2006 for a designated position[s]; and

[C.](c) [Background checks may be required ]at the discretion of the USOR Executive Director , for a USOR employee[s] reassigned or promoted to a designated position[s].

[D.](2) A [N]new USOR employee[s], transfer employee[s] from another state government position[s], [and]or volunteer[s] may provide information from a criminal background check[s] that [were]was completed by the BCI or by the applicant at a live scan site[s] no more than 12 months prior to the date of employment by the USOR instead of completing a new background check.

[E.](3) The USOR shall provide a [P]prospective transferee[s] or employee[s shall receive] notice of the criminal background check requirement in the job[/] or employment notice.

 

R280-204-5. USOR Procedures for Review of Criminal Background Check Information.

[A.](1) The USOR shall direct a [Background checks of ]designated USOR employee[s] hired between February 28, 2003 and March 1, 2006 [shall take place]to complete a criminal background check using one of the following methods[as directed by the USOR]:

([1]a) [using ]fingerprint cards submitted to the BCI; or

([2]b) [using the ]live scan process at any Utah live scan location.

[B.](2) USOR staff shall review [A]all criminal background checks that identify arrests or convictions[shall be reviewed by USOR staff].

[C.](3) USOR staff shall notify the criminal background check applicant in a timely manner that an arrest[(s)], conviction[(s)], or both, were reported as a result of the criminal background check.

[D.](4) Designated USOR staff shall review an arrest[s], conviction[s], or both, and determine if the arrest[s] or conviction[s] pose s a risk[s] to a USOR client[s].

[E.](5) A USOR current [and]or prospective employee[s] whose background check[s] reveal s an arrest[s] or conviction[s] shall have an opportunity to provide an explanation or additional information to USOR staff.

[F.](6) The review of criminal background check information may result in a prospective USOR employee not being hired, in disciplinary action for a current USOR employee[s], or termination of a volunteer's participation with the USOR.

[G.](7) A [C]current USOR employee[s] shall have adequate due process, consistent with USOR policies , prior to discipline resulting from a background check review.

 

R280-204-6. Criminal Background Check Costs and Fees.

[A.](1) The USOR shall pay the [All ]costs and fees associated with a criminal background check[s] of a USOR employee[s] hired before March 2, 2006[shall be borne by the USOR].

[B.](2)(a) A USOR employee or prospective employee hired after March 1, 2006 shall pay the [All ]costs and fees associated with a criminal background check[s of USOR employees hired after March 1, 2006 shall be the responsibility of the employee or prospective employee].

(b) At the discretion of the USOR Executive Director, [T]the USOR may contribute to the costs and fees of a criminal background check [costs and expenses as]described in Subsection (2)(a) if funds are available[and at the discretion of the USOR].

[C.](3) The responsibility for costs and fees for a criminal background check of an employee[s] transferred within the USOR or from another government agenc[ies]y shall be determined on a case-by-case basis.

[D.](4) The responsibility for costs and fees for a criminal background check of a USOR volunteer[s] shall be determined on a case-by-case basis.

[E.](5)(a) The USOR shall provide [A]a criminal background check fee schedule[shall be available] to a prospective USOR employee[s from the USOR].

(b) Costs may include a fee for review of a fingerprint card[s] to the BCI, a fee for use of live scan equipment, or a fee for review of fingerprint results by the USOR.

 

R280-204-7. Miscellaneous Provisions.

[A. Confidentiality:]

(1) All criminal background information received by the USOR shall be secured by the [designated USOE section]Superintendent.

(2) All criminal background check records maintained by the USOR and the [USOE]Superintendent are protected under Section 63G-2-305 with the exception of public employee information under Section 63G-2-201.

[B.](3) The USOR or [USOE]the Superintendent has no liability for any errors or misinformation received from the BCI as a result of a criminal fingerprint background check.

(4) Correction of any misinformation in a criminal background check is the responsibility of the fingerprint background check applicant.

 

KEY: criminal background checks

Date of Enactment or Last Substantive Amendment: [April 3, 2006]2016

Notice of Continuation: January 14, 2016

Authorizing, and Implemented or Interpreted Law: 53A-24-103; 53A-1-401(3)