DAR File No. 40801

Education, Rehabilitation

Rule R280-204

Utah State Office of Rehabilitation Employee Background Check Requirement

Notice of Proposed Rule

(Repeal)

DAR File No.: 40801
Filed: 09/15/2016 05:55:19 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Repealing Rule R280-204 is in response to H.B. 325, Office of Rehabilitation Services Amendments, from the 2016 General Session. Effective 10/01/2016, state law provides for the Utah State Office of Rehabilitation (USOR) to move from under the direction of the Utah State Board of Education (Board) and Superintendent to under the direction of the Department of Workforce Services and its executive director, at which time the Board will no longer have statutory and rulemaking authority over the USOR.

Summary of the rule or change:

Rule R280-204 is repealed in its entirety.

Statutory or constitutional authorization for this rule:

• Section 53A-1-401
• Section 53A-24-103

Anticipated cost or savings to:

the state budget:

Rule R280-204 is repealed in its entirety, which likely will not result in a cost or savings to the state budget.

local governments:

Rule R280-204 is repealed in its entirety, which likely will not result in a cost or savings to local government.

small businesses:

Rule R280-204 is repealed in its entirety, which likely will not result in a cost or savings to small businesses.

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

Rule R280-204 is repealed in its entirety, which likely will not result in a cost or savings to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

Rule R280-204 is repealed in its entirety, which likely will not result in any compliance costs for affected persons.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 as a result of the amendments to this rule.

Sydnee Dickson, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Office 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:

10/31/2016

This rule may become effective on:

11/07/2016

Authorized by:

Angela Stallings, Associate Superintendent, Policy and Communication

R280. Education, Rehabilitation.

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

R280-204-1. Authority and Purpose.

(1) This rule is authorized by:

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

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

(2) The purpose of this rule is to establish procedures:

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

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

 

R280-204-2. Definitions.

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

(2) "Criminal background check" means:

(a) the submission by an employee of fingerprints:

(i) through a law enforcement unit;

(ii) through the paper or card fingerprinting process established by the Superintendent; or

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

(b) the review by 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.

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

(a) may spend with a 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 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.

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

(6) "USOR employee" means an employee, including a consultant, temporary employee, intern and traditional employee of the USOR or an agency or subdivision of the USOR.

 

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

(1) The USOR Executive Director shall ensure that a criminal background check is completed by a USOR employee hired, transferred, or assigned to the USOR who has significant unsupervised access to a client.

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

(3) The USOR Executive Director shall review a supervisor's recommendations of a USOR employee position identified for a criminal background check under Subsection (1) and designate employee and volunteer positions for which a criminal background check is necessary.

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

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

 

R280-204-4. Criminal Background Check Requirement for USOR Employees.

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

(a) an employee hired for a USOR position after March 1, 2006 in a position designated by the USOR Executive Director prior to final and official hiring by the USOR;

(b) a prospective transfer from outside the USOR after March 1, 2006 for a designated position; and

(c) at the discretion of the USOR Executive Director, for a USOR employee reassigned or promoted to a designated position.

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

(3) The USOR shall provide a prospective transferee or employee 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.

(1) The USOR shall direct a designated USOR employee hired between February 28, 2003 and March 1, 2006 to complete a criminal background check using one of the following methods:

(a) fingerprint cards submitted to the BCI; or

(b) live scan process at any Utah live scan location.

(2) USOR staff shall review all criminal background checks that identify arrests or convictions.

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

(4) Designated USOR staff shall review an arrest, conviction, or both, and determine if the arrest or conviction poses a risk to a USOR client.

(5) A USOR current or prospective employee whose background check reveals an arrest or conviction shall have an opportunity to provide an explanation or additional information to USOR staff.

(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, or termination of a volunteer's participation with the USOR.

(7) A current USOR employee 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.

(1) The USOR shall pay the costs and fees associated with a criminal background check of a USOR employee hired before March 2, 2006.

(2)(a) A USOR employee or prospective employee hired after March 1, 2006 shall pay the costs and fees associated with a criminal background check.

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

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

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

(5)(a) The USOR shall provide a criminal background check fee schedule to a prospective USOR employee.

(b) Costs may include a fee for review of a fingerprint card 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.

(1) All criminal background information received by the USOR shall be secured by the Superintendent.

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

(3) The USOR or 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: March 9, 2016

Notice of Continuation: January 14, 2016

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