DAR File No. 42216

Human Services, Administration, Administrative Services, Licensing

Rule R501-1

General Provisions for Licensing

Notice of Proposed Rule

(Amendment)

DAR File No.: 42216
Filed: 10/13/2017 03:57:12 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change is to comply with the updated statute from the 2017 General Session on changes to Title 62A, Chapter 2 (H.B. 185).

Summary of the rule or change:

The changes: 1) clarify license extension and expiration parameters due to H.B.185 (2017) changes; 2) update definitions based on DHS consistency and stakeholder feedback; 3) clarify general licensure processes, including criteria for denial; 4) update processes for reporting critical incidents in a licensed setting or reporting a complain regarding a licensed setting; 5) update critical incident definition to allow for streamlined DHS-wide reporting of critical incidents; 6) clarify that pending investigations or those that do not result in violations are classified as protected; 7) remove signature requirements to streamline processes; and 8) update the code of conduct. These changes were shared with stakeholders and feedback received.

Statutory or constitutional authorization for this rule:

• Title 62A, Chapter 2

Anticipated cost or savings to:

the state budget:

These processes do not significantly change the Office of Licensing duties that would result in higher cost of service. There is, however, the potential for a little bit more processing time on critical incidents as the definition has been expanded to create all the items needed DHS wide for critical incident reporting. For providers, this consistency means one report to one DHS agency and it will then be shared across all DHS agencies. For DHS agencies, it means minor increased coordination of report sharing. It is difficult to know if this will result in a savings or a cost to the state agencies, but it could go slightly either way. All the agencies are already accepting their individual critical incidents separately.

local governments:

No significant anticipated changes for local governments. A few government entities do hold licenses with the Office of Licensing and would be impacted by changes to critical incident reporting. This could require more submissions on their part, but costs are not anticipated to be significant, and if the entity had previously been reporting to multiple DHS agencies they may see a cost savings in their processes as their reports will be minimized to just one DHS agency.

small businesses:

Similarly to on the state side, changes in critical incident reporting could either take a bit more time or a bit less time for agencies depending on their circumstances, contracts, and clientele. Costs or savings are expected to be minimal as the submission of an incident report is simply an email with a few basic details in it. The most significant incidents that will take the most time would have already been submitted under the former rule as well.

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

No other entities are affected.

Compliance costs for affected persons:

This rule governs mostly the processes and determinations by the Office of Licensing with no costs for affected persons. As detailed above, critical incident reporting could possibly lead to slightly increased cost, but especially for those under contract it could lead to slight savings due to a more streamlined DHS processes.

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

After analysis, the fiscal impact of this rule change are either none or will result in a slight cost or savings depending on individual provider circumstances.

Ann Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office 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
• Janice Weinman at the above address, by phone at 385-321-5586, by FAX at 801-538-4553, or by Internet E-mail at jweinman@utah.gov
• Samantha Hanson at the above address, by phone at 801-538-4041, by FAX at , or by Internet E-mail at samanthahanson@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:

12/01/2017

This rule may become effective on:

12/08/2017

Authorized by:

Diane Moore, Director

R501. Human Services, Administration, Administrative Services, Licensing

R501-1. General Provisions for Licensing.

R501-1-1. Authority and Purpose.

(1) This Rule is authorized by Utah Code Title 62A, Chapter 2.

(2) This Rule clarifies the standards for:

(a) approving or denying a human services program license application;

(b) [approving, ]renewing, extending, placing conditions on, restricting admissions, suspending, or revoking a license for a human services program;

(c) inspecting, monitoring, and investigating a prospective or current human services program; and

(d) approving or denying a variance to the Human Services Administrative Rules, Title R501, regarding the licensing of human services programs.

 

R501-1-2. Definitions.

As used in this Title 501:

(1) "Abuse" includes, but is not limited to:

(a) attempting to cause harm;

(b) threatening to cause harm;

(c) causing non-accidental harm;

(d) unreasonable or inappropriate use of a restraint, medication, confinement, seclusion or isolation that causes harm;

(e) sexual exploitation, as defined in 78A-6-105;

(f) sexual abuse, including sexual contact or conduct with a client, or as defined in 78A-6-105;

(g) a sexual offense, as described in Title 76 Chapter 5; or

(h) domestic violence or domestic violence related to child abuse.

(i) "Abuse" does not include the reasonable discipline of a child, or the use of reasonable and necessary force in self-defense or the defense of others, as such force is defined in 76-2-4.

(2) "Applicant" is defined in 62A-2-101.

(3) "Associated with the Licensee" is defined in 62A-2-101.

(4) "Category" means the type of human service license described in 62A-2-101.

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

(6) "Clinical" means services delivered by a Division of Occupational and Professional Licensing (DOPL) licensed mental health or medical professional in accordance with Utah Code Title 58, Chapters 60, 61, 67 and 68.

(7) "Compliant" means adherence to governing rule and statute or only minor violations that do not rise to the level of a corrective action plan or penalty.

(8) "Conflict of Interest" means a situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity.

([6]9) "Critical Incident" means an occurrence that involves:

(a) abuse;

(b) neglect;

(c) exploitation;

(d) unexpected death;

(e) any client injury, including self-harm, requiring medical attention beyond basic first aid;

(f) any client injury that is a result of staff or client assault, restraint or intervention;

(g) all criminal activity excluding minor infractions, medical emergency or protective service intervention;

([g]h) the unlawful or unauthorized presence or use of alcohol, [or] substances, or harmful contraband items;

(i) the unauthorized presence or misuse of dangerous weapons;

(j) attempted suicide;

(k) any on-duty or client-involved staff sexual misconduct or any client unlawful sexual misconduct;

(l) client rights violations;

(i) per Office of Licensing code of conduct for all licensed providers; and

(ii) per DHS code of conduct for DHS contracted providers; and

(iii) per human rights committee approval for DSPD contracted providers;

(m) medication errors resulting in impact on client's well-being, medical status or functioning;

([h]n) the unauthorized departure of a client from the program;

([i]o) outbreak of a contagious illness or situation requiring notification of or consultation with the local health department;

[(j) the misuse of dangerous weapons; or

(k) unsafe conditions caused by weather events, mold, infestations, or other conditions that may affect the health, safety or well-being of clients.](p) any event compromising the client environment, including roof collapse, fire, flood, weather events, natural disasters and infestations;

(q) any other incident that compromises client health and safety shall result in a critical incident report;

(i) specific contract language may also exist that requires additional criteria for DHS contracted providers.

([7]10) "Director[(s)]" refers to the Office of Licensing director as defined in 62A-2-101, and is not a "Program Director" as defined in this Chapter.[means a person or persons ultimately responsible for day to day operations of a program; and may include medical, clinical, or those directing other aspects of the program.]

([8]11) "Exploitation" includes, but is not limited to:

(a) the use of a client's property, labor, or resources without the client's consent or in a manner that is contrary to the client's best interests, or for the personal gain of someone other than the client; such as expending a client's funds for the benefit of another; or

(b) using the labor of a client without paying the client a fair wage or without providing the client with just or equivalent non-monetary compensation, where such use is consistent with therapeutic practices; or

(c) engaging or involving a client in any sexual conduct; or

(d) any offense described in 76-5-111(4) or [Section] 76-5b-201 and 202.

([9]12) "Foster Home" is defined in 62A-2-101 (18).

(1[0]3) "Fraud" means a false or deceptive statement, act, or omission that causes, or attempts to cause, property or financial damages, or for personal or licensee gain. Fraud includes the offenses identified as fraud in Utah Code Title 76 Chapter 6.

(1[1]4) "Harm" means physical or emotional pain, damage, or injury.

(1[2]5) "Human Services Program" is defined in 62A-2-101.

(1[3]6) "Initial License " means the license issued to operate a human services program during the licensee's first year of licensure. This license is considered provisional and allows for the licensee to demonstrate sustained compliance with licensing rules prior to renewal.

(1[4]7) "Inspection" means announced or unannounced visit of the licensed site in accordance with 62A-2-118.

(1[5]8) "Licensee" is defined in 62A-2-101 and includes the person or persons responsible for administration and decision making for the licensed site or program. The term licensee may be used to describe a person or entity that has caused any of the violations described in 62A-2-112 that are related to the human services program.

(1[6]9) "Local Government" is defined in 62A-2-101.

(20) "Medical Emergency" is an acute injury or illness posing an immediate risk to a person's life or long-term health.

([17]21) "Medication-Assisted Treatment" means the use of medications with counseling and behavioral therapies to treat substance use disorders [and]or prevent opioid overdose.

([18]22) "Mistreatment" means emotional or physical mistreatment:

(a) emotional mistreatment is verbal or non-verbal conduct that results in a client suffering significant mental anguish, emotional distress, fear, humiliation, or degradation; and may include demeaning, threatening, terrorizing, alienating, isolating, intimidating, or harassing a client; and

(b) physical mistreatment includes:

(i) misuse of work, exercise restraint, or seclusion as a means of coercion, punishment, or retaliation against a client, or for the convenience of the licensee, or when inconsistent with the client's treatment or service plan, health or abilities;

(ii) compelling a client to remain in an uncomfortable position or repeating physical movements to coerce, punish, or retaliate against a client, or for the convenience of the licensee;

(iii) physical punishment.

([19]23) "Neglect" means abandonment or the failure to provide necessary care, which may include nutrition, education, clothing, shelter, sleep, bedding, supervision, health care, hygiene, treatment, or protection from harm.

(2[0]4) "Office" means the Utah Department of Human Services Office of Licensing.

(2[1]5) "Owner/Ownership" means any licensee, person, or entity that:

(a) is defined as a "[m]Member" in 62A-2-108; or

(b) is a person or persons listed on a foster home license; or

(c) possesses the exclusive right to hold, use, benefit-from, enjoy, convey, transfer, and otherwise dispose of a program; or

(d) retains the rights, participates in, or is ultimately responsible for operations and business decisions of program, or

(e) may or may not own the real property or building where the facility operates; or

(f) a property owner is also an owner of the program if they operate or have engaged the services of others to operate the program.

(2[2]6) "Parent Program" means an applicant or licensee owning or directing multiple sites under the same general administrative organization.

(2[3]7) "Penalty" means the Office's denying, placing conditions on, suspending, or revoking a human services license due to noncompliance with statute or administrative rules, may include penalties outlined in 62A-2-112. A penalty does not include corrective action plans as used in this [r]Rule.

(2[4]8) ["Pending Renewal License" means a temporary program license status that is assigned when an expiring license has a corrective action plan, penalty, or pending appeal. Pending renewal licenses may be granted only after submission of fees and application, and are valid for no more than 12 months.

(25) ]"Program" refers to a Human Services Program as defined herein.

(2[6]9) "Program Director" means a person or persons ultimately responsible for day to day operations of a program.

(30) "Person" means an individual, agency, association, partnership, corporation, business entity, or governmental entity.

([27]31) "Regular Business Hours" are the hours that the program is available to the public or providing services to clients.

(32) "Renewal License" means a continuing program license issued based upon ongoing compliance with administrative rules and statutes. It is issued annually or biennially in compliance with 62A-2 108(4).

([28]33) "Restraint" means the involuntary method of physically restricting a person's freedom of movement, physical activity, or normal access to their body. Restraint is only allowed to prevent harm to the client or in protection of others and is only to be completed by an individual with documented training in non-violent crisis intervention or de-escalation techniques.

([29]34) "Seclusion" means the involuntary confinement of the individual in a room or an area away from the client community, where the individual is physically prevented from leaving.

(3[0]5) "Site" means a human services program identified by a single geographic location and must be linked to the parent program, if one exists.

(36) "Significant Criminal Activity" is any staff or client involved criminal activity that occurs in or related to the program that poses an immediate and serious threat to health and safety.

(3[1]7) "Staff" means direct care employees, support employees, managers, program directors, supervisors, administrators, agents, volunteers, owners, and contractors.

(3[2]8) "Variance" means the Office authorized deviation from the administrative rule.

(3[3]9) "Violation" means an act or omission by the licensee, or any person associated with the licensee, contrary to any administrative regulation, or local, state, or federal law applicable to the program.

 

R501-1-3. Licensing Application Procedures.

(1) Initial and Renewal Application .

(a) An applicant shall not accept any fees, enter any agreements to provide client services, or provide any client services until they have received a license certificate issued by the Office.

(b) The Office shall issue a license for a human service program only after verifying compliance with applicable administrative rules and statutes.

([b]c) Applicants and licensees shall permit the Office to have immediate, unrestricted access to the site, all on and off-site program and client records, and all staff and clients.

([c]d) An applicant may withdraw their application for a license, in writing, at any time during the application process.

([d]e) An applicant seeking an initial or renewal license to operate a human services program shall submit:

(i) an application as provided by the Office; a renewal application that is not submitted at least thirty days prior to the expiration date of the current license may result in the license expiring;

(ii) the fee(s) required for each category of human service program license(s); except as excluded in R501-1-7-2;

(iii) a completed background screening application, fees and supporting documentation for each person associated with the human services program in accordance with 62A-2-120 and R501-14, except for those excluded in 62A-2-120(13);

(iv) the applicant's required policies and procedures;

(A) for renewal purposes the applicant may submit only the policies and procedures that have been modified[the applicant's required policies and procedures per R-501-2. Renewal applicants may submit modifications made to previously submitted policies and procedures];

(v) name and contact information for all owners and program directors, as defined in this [c]Chapter; and

[(vi) disclosure of any individual associated with the application who has been a licensee as defined in this rule that had a license revoked by the Office within the five years prior to the date on the application; and;]

(vi[i]) documentation verifying compliance with, or exemption from, local government zoning, health, fire, safety, and business license requirements.

(A) For residential treatment programs applying for initial licensure, a copy of its notice of intent to operate a residential treatment program, and proof of service, in accordance with 62A-2-108.2.

(2) Application Expiration .

(a) A program initial application, other than an initial foster home application, that remains incomplete shall expire one year from the date it was first submitted to the Office.

(b) A foster home initial application that [remains incomplete, or ]lacks required documentation may expire 90 days from the date is was first submitted to the Office unless the Office determines the applicant to be making active progress toward licensing compliance.

(c) An expired initial application is void and requires a new initial application and applicable fees for each category of license.

(3) [Two Year Licenses]The Office may deny the initial application or place a penalty on a renewal license if:

(a) the program has failed to achieve or maintain compliance with administrative rules, laws, ordinances or statutes; or[A program may apply for a two year license if:

(i) the program has been licensed consecutively without penalty for two years prior to application;

(ii) there are no current corrective action plans, penalties or pending appeals at the time of application;

(iii) the program submits double the annual fees for their category/categories of licenses; and

(iv) the program submits a plan for maintaining continued compliance with background screenings as described in 62A-2-120.]

(b) the Office determines that the program is not reasonably likely to provide services in accordance with governing rules or statutes;

(i) the Office may consider the history of rule violations by the owner, licensee, or persons associated with the program;

(ii) the Office determines that significant false or misleading information regarding the program has been provided to the Office, program clients, prospective clients, or the public; or

(c) program directors, owners or any individuals involved in providing billed services or directly preparing billing have been identified and listed on the Medicaid LEIE exclusion list; or

(d) the agency maintains association with any individual who has been a licensee that has had a license revoked by the Office within the five years prior to the date on the application.

(4) Previously denied applicants shall not reapply for at least three months from the date of denial.

 

R501-1-4. Licensing Determinations.

(1) [Application Approval

(a) The Office shall issue a license for a human service program only after verifying compliance with applicable administrative rules and statutes.

(b) ]The Office may place individualized parameters on a program license in order to promote the health, safety, and welfare of clients. Such parameters may include, but are not limited to:

([i]a) age restrictions;

([ii]b) admission or placement restrictions; or

([iii]c) other parameters specific to individual sites and programs.

([c]2) A license certificate shall state the name, site address, license category, maximum client capacity if applicable, any specific parameters, and effective dates of the license.

([d]a) Licensee shall post the license certificate in a conspicuous location at the licensed site.

([e]3) A [program]site associated with a parent program shall not be issued an initial license while any other license associated with[in] that [program or ]parent program is under penalty, or has a pending appeal.

([2]4) [Application Denial]Two Year Licenses.

(a) [The Office may deny the application for a human service program if:]A program may apply for a two year license if:

(i) the program has [failed to achieve and maintain compliance with administrative rules and statutes. All inspections, investigations, and other information gathered during the licensed period shall contribute to the renewal determination]been licensed consecutively and in compliance for two years prior to application; and

(ii) the Office has determine[s]d that[,] the program 's individual services and circumstances are likely to maintain compliance under a two year cycle; and[is not reasonably likely to provide services in accordance with governing rules or statutes. The Office may consider the history of rule violations by the owner, licensee, or persons associated with the program; or]

(iii) the [Office determines that significant false or misleading information regarding the program has been provided to the Office, program clients, prospective clients, or the public.]program submits double the annual fees for their category/categories of license(s); and

([b]iv) [Previously denied applicants shall not reapply for at least three months from the date of denial] the program submits a plan for maintaining continued compliance with background screenings as described in 62A-2-120.

[(3) Renewing a License with Violations

(a) If a license has a penalty, pending appeal, or corrective action plan at the time of renewal, the license shall not be renewed per 62A-2-108(4), but shall be put in a pending renewal status until compliance or other resolution is achieved. Pending renewal status:

(i) provides an opportunity for the licensee to achieve compliance and qualify for full renewal per 62A-2-108(4);

(ii) is only issued after submission of renewal application and fees;

(iii) is valid for up to 12 months of the requested renewal period, and cannot be extended;

(iv) may be converted to a regular renewal license for the balance of the renewal period once compliance is verified; and

(v) will be designated on the license certificate.]

(b) A two year license [that does not achieve compliance or other resolution in that time shall be denied further renewal]remains subject to the same annual monitoring as a one year license.

[

R501-1-5. Expiration, Extension, and Relinquishment.]

([1]5) License Expiration.

(a) A license that has expired is void and may not be renewed.

(b) A license expires at midnight on the last day of the same month the license was issued, one year following the date or issuance[expiration date listed on the license that is issued by the Office,] unless:

(i) the license has been revoked by the Office[,]; or

(ii) the license has been extended by the Office[,]; or

[(iii) the license has been placed in pending renewal status by the Office in accordance with 501-1-4-3, or]

([iv]iii) the license has been relinquished by the licensee; or[.]

(iv) the license was issued as a two year license, which will expire at midnight on the last day of the same month the license was issued, two years following the date of issuance and in accordance with R501-4-2.

(c) A program with an expired license shall not accept any fees, enter any agreements to provide client services, or provide any client services.

(d) A program with an expired license [wishing to operate a human services program] shall submit an application and fees for an initial license and be granted an initial license prior to providing any services in accordance with this [r]Rule.

([2]6) License Extensions.

(a) The Office may extend the current license of a human service program only when the renewal application and applicable fee have been submitted.

(b) A license that is compliant prior to expiration may be extended for a one time[, up to a] maximum of 90 days past the current license expiration date[, only if the Office determines there is a reasonable likelihood the program will achieve compliance prior to the expiration of the extension, and there are not current penalties or pending appeals].

(c) A license that is not compliant prior to expiration may be extended in non-compliant status.

([c]i) A compliant renewal license will not be granted until resolution of identified compliance issues.[The application for a license that has been extended, but does not qualify for renewal within the timeframe of the extension, shall be denied.

(3) License Relinquishment; A licensee wishing to voluntarily relinquish its license shall submit a written notice to the Office.]

(d) The subsequent license following an extension shall be reduced in duration by the time of the extension.

(7) License Relinquishment.

(a) A licensee wishing to voluntarily relinquish its license shall submit a written notice to the Office.

(b) Voluntary relinquishment of a license shall not be accepted by the Office if a notice of agency action revoking the license has been initiated.

 

R501-1-[6]5. Program Changes.

(1) Name Change.

(a) A licensee wishing to change only the name of the program or site does not need to submit an application or fee; they shall submit updated program documentation reflecting the new name to the Office at least ten days prior to the change.

(b) The Office may link the name of the former program to the new name on the licensing database, and on all license certificates and public websites, for two years following the change.

(2) Relocation.

(a) A human services program wishing to relocate to a new address may serve clients at the new site, only after:

(i) submission of renewal application and renewal fees at least 30 days prior to the move;

(ii) submission of local government business license and applicable inspections and clearances, including but not limited to:

(A) health;

(B) fire; and/or

(C) as required by the rules of a human service program categor[icall]y[required];

(iii) submission of insurance coverage at the new site[,];

(iv) inspection by the Office; and

(v) receipt of the updated license certificate for the new site.

(b) A foster home that intends to relocate to a new site may have their license transferred to the new site only after:

(i) a request to relocate has been submitted to the Office at least 30 days prior to the move;

(ii) Office of Licensing inspection and approval of licensure at the new site which shall occur within two weeks, if a foster child is placed, and within 30 days if there are no current foster placements;

(A) if a foster child is placed, it is the responsibility of the licensed foster parent to ensure health and safety of the foster child during the transfer to the new site.

(c) Except for foster homes outlined in subsection (b), no clients may be present and no services may be provided at a relocation address until after the Office issues a new license in accordance with this Rule.

(d) Moving from a licensed site voids that site's license unless the provisions of this Chapter are followed for relocation.

(3) Capacity Change.

(a) A licensee seeking to increase the maximum client capacity of a program shall submit an application and renewal fee for a license renewal as [categorically ]required by the rules of the human service program category.

(4) Add New License Category.

(a) A program may request to add a new category of service to an existing licensed site by submitting application and fees for an initial license. All requirements for initial licensure must be verified.

(5) Add New Location.

(a) A program may add an additional site of service by submitting an application and fees for an initial license. All requirements for initial licensure must be verified.

(6) Owner/Ownership Changes.

(a) A program anticipating, or undergoing a change of ownership, or change in owner(s), shall submit in writing, prior to the change:

(i) any changes to the programming and services;

(ii) declaration regarding responsibility for records and records retention to include an agreement signed by both current and prospective owners and/or program directors, detailing how all program staff and client records will be retained and remain available to the Office for six years or in accordance with DHS contract requirements regardless of whether the program remains licensed;

(iii) names and contact information of any new directors or owners;

(iv) documentation of continuous insurance coverage; and

(v) an updated business license.

(b) The status of a license at the time of a change of ownership shall continue.

(7) For any substantial change in this [s]Section, the Office may require new, initial application and fees for each license category.

(a) Substantial changes include:

(i) those resulting in direct client impact;

(ii) changes to programming;

(iii) changes in populations served;

(iv) severing ties with previous owner or staff affiliations; or

(v) disrupting continuity of record retention, etc.

 

R501-1-[7]6 . License Fees.

(1) The Office shall collect licensing fees in accordance with 62A-2-106, and Utah Code Title 63J Chapter 1 Part 5.

(2) No licensing fee shall be required from a foster home, or a Division, or Office, of the Department of Human Services.

(3) The Office is not required to perform an on-site visit, or document review until the applicant pays the licensing fee.

(4) A license application fee will expire after 12 months if a program has been unable to meet the license requirements.

(5) A fee paid by a licensee shall not be transferred, prorated, reduced, waived, or refunded. Costs incurred by applicants in preparation for, or maintenance of licensure are the sole responsibility of the applicant.

(6) Separate initial license fees are required for each new category of human services program offered at each program site.

(7) Separate renewal license fees, and applicable capacity fees, are required for each license category that is renewed at each program site.

(a) Capacity fees are calculated according to the maximum licensed client capacity of the human service program, and not according to the number of clients actually served in the program.

(8) A human service program with more than one building, unit, or suite at one site, may choose to have its fees assessed and each category of license issued:

(a) so that each category of license will be issued to include all on-site buildings, units or suites as one; or

(b) so that separate licenses will be issued for each individual on-site building, unit or suite.

 

R501-1-[8]7 . Variances.

(1) A licensee shall not deviate from any administrative rule without first receiving written approval of a specific variance request signed by the Director of the Office, or the director's designee.

(2) The director of the Office, or the director's designee, may grant a variance if the director or the Director's designee determines a variance is not likely to compromise client health and safety, or provide opportunity for abuse, neglect, exploitation, harm, mistreatment, or fraud.

(3) A licensee seeking a variance must submit a written request to their licensing specialist, and specifically describe:

(a) the rule for which the variance is requested;

(b) the reason for the request;

(c) how the variance provides for the best interest of the client(s);

(d) what procedures will be implemented to ensure the health and safety of all clients; and

(e) the proposed variance start and expiration dates.

(4) The Office shall review the variance and notify the licensee of the approval, approval with modification, or denial of the variance, in writing, within 30 days.

(5) The licensee shall comply with the terms of a written variance, including any conditions or modifications contained within the approved written variance.

(6) A variance expires on the end date listed on the approval notice and terms of the variance are no longer permitted after that expiration date, unless a renewal of the variance is granted.

(7) A variance may be renewed by the office when the program is able to justify the request, and ensure ongoing health and safety of all clients.

 

R501-1-[9]8 . Monitoring.

(1) The Office shall conduct a minimum of one annual on-site inspection, but may conduct as many announced, or unannounced inspections as deemed necessary to monitor compliance, investigate alleged violations, monitor corrective action plans or penalty compliance, or to gather information for license renewal.

(2) On-site inspections shall take place during regular business hours, as defined in 62A-2-101.

(3) Applicants and licensees shall not restrict the Office's access to the site, clients, staff, and all program records.

(4) Licensees and staff shall not compromise the integrity of the Office's information gathering process by withholding or manipulating information, or influencing the specific responses of staff or clients.

(5) All on-site inspections shall contribute toward the renewal or denial of the license application at the end of the license period.

(6) The Office shall provide written findings to the Program identifying areas of non-compliance with licensing requirements after each on-site inspection.

(7) Except for reports made in relation to foster homes, the licensee shall make copies of inspection reports available to the public upon request per 62A-2-118(5).

(8) The Office may adopt a written inspection report from a local government, certifying, contracting, or accrediting entity to assist in a determination whether a licensee has complied with a licensing requirement.

(9) The Office shall be allowed access to all program documentation and staff that may be located at an administrative location, away from the licensed site.

 

R501-1-[10]9 . Investigations of Alleged Violations.

(1) Unlicensed Programs.

(a) The Office shall investigate reports of unlicensed human service programs.

(b) Investigation of an unlicensed human service program may include interviewing anyone at the site, neighbors, or gathering information from any source that will aid the Office in making a determination as to whether or not the site should be licensed.

(c) An unlicensed human services program that meets licensure definition, but does not submit an application and fee, or fails to become licensed, shall be referred to the Office of the Attorney General, and the appropriate County Attorney.

(d) The Office may penalize a licensed program at all program sites when a program adds or operates an unlicensed site that requires licensure by the Office.

(2) Licensed Program Complaints and Critical Incidents.

(a) The Office shall investigate critical incidents and complaints involving alleged licensing violations regarding a licensed human services program.

(b) Complaints about licensees can come to the Office via any means from any source including the Office of Licensing email address: licensingconcerns@utah.gov.

(c) The Office retains discretion to decline investigation of a complaint that is anonymous, unrelated to current conditions of the program, or not an alleged violation of a rule or statute.

(d) Critical incidents that involve one or more clients and/or on-duty staff in a licensed setting or under the direct responsibility and supervision of the program shall be reported [by the program to the office ]by the licensee as follows[end of the following business day, to legal guardians of involved clients, and to any other agencies as required by law, including]:

(i) [Child and Adult Protective Services] report shall be made to DHS and legal guardians of involved clients within one business day;[or]

(A) if the critical incident involves a client or service under a DHS contract, the critical incident report must be completed within 24 hours and may require a five day follow up report to the involved DHS Division;

(B) if the critical incident involves a client or service to a youth currently in the custody of DHS or its Divisions an immediate live-person verbal notification to the involved Division is additionally required.

(ii) [Law Enforcement.]Initial critical incident reports to DHS shall include the following in writing:

(A) name of provider and all involved staff, witnesses and clients;

(B) date, time, and location of the incident, and date and time of incident discovery, if different from time of incident;

(C) descriptive summary of incident;

(D) actions taken; and

(E) actions planned to be taken by the program at the time of the report.

(F) identification of DHS contracts status, if any.

([e]iii) It is the responsibility of the licensee to collect and maintain and submit as requested original witness and participant witness statements and supporting documentation regarding all critical incidents that require individual perspectives to be understood.[Pending investigations or those that result in no rule violation findings in regards to the complaints or critical incidents shall be classified as protected and only released in accordance with Utah Code title 63G chapter 2, Utah Government Access and Management Act].

(3) Investigative Process.

(a) In-person, or electronic investigations may include, but are not limited to:

(i) a review of on or offsite records;

(ii) interviews of licensee(s), person(s), client(s), or staff;

(iii) the gathering of information from collateral parties; [or]and

(iv) site inspections.

([b]c) The Office will prioritize investigations of reports of unlicensed programs, complaints regarding licensed programs, and critical incidents following an assessment of risk to client health and safety as follows:

(i) priority allegations, as administratively identified by the Office as a potential imminent risk to the health and safety of clients, will require initial on-site contact by the Office within three business days. The Office may utilize law enforcement, Child or Adult Protective services, or other protection agencies to meet priority in on-site response;

(ii) all other allegations will require that the Office initiate an investigation within ten business days.

([c]d) Licensees and staff shall cooperate in any investigation.

([d]e) The Office may report any allegations or evidence of abuse, neglect, exploitation, mistreatment, or fraud to clients, clients' legal guardians, law enforcement, insurance agencies, the insurance department, the Division of Occupational and Professional Licensing, or any other entity determined necessary by the Office.

(f) Pending investigations or those that do not result in a violation finding shall be classified as protected and only released in accordance with Utah Code Title 63G Chapter 2, Utah Government Access and Management Act.

 

R501-1-1[1]0 . License Violations.

(1) When the Office finds evidence of violations of statute or rule, the Office shall do one of the following:

([1]a) provide written notification of the violation requiring the licensee to correct violation(s) with no formal follow-up; or

([2]b) provide written notification of violation and request a licensee to submit a corrective action plan in response to a written notification of a violation;

([a]i) a licensee shall submit a written corrective action plan to the Office within ten calendar days of the request from the Office and the corrective action plan shall include:

([b]A) a statement of each violation identified by the Office;

([c]B) a detailed description of how the licensee will correct each violation and prevent additional violations;

([d]C) the date by which the licensee will achieve compliance with administrative rules and statutes; and

([e]D) [the signature]involvement of program owner (s) and director (s), including each foster parent, if involving a licensed or certified foster home[;].

([i]c) [t]The Office shall review the submitted corrective action plan and[:]either [

(A) ]inform the licensee that the corrective action plan is approved; or [

(B) ]inform the licensee that the corrective action plan is not approved and provide explanation;

(i[i]) the Office may permit a licensee to amend and resubmit its corrective action plan within five additional calendar days[;].

([f]d) [t]The Office shall issue a Notice of Agency Action imposing a penalty for violation(s) if the licensee fails to submit and comply with an approved corrective action plan.

([g]e) A corrective action plan is not a penalty. Programs have the right to refuse the corrective action plan process and may preserve their appeal rights by requesting a penalty through an Office initiated Notice of Agency Action.

([3]2) [p]Provide a written notice of agency action initiating a penalty, as follows:

(a) the Office may place a license on conditional status[.]; (i) [C]conditional status allows a program that is in the process of correcting violations to continue operation, subject to conditions established by the Office[.];

(A) Failure to meet the terms of the conditions, and time frames outlined on the notice, could result in further penalty[;].

(b) [t]The Office may suspend a license for up to one year;

(i) a human services program that has had its license suspended is prohibited from accepting new clients, and may only provide the services necessary to maintain client health and safety during their transition; and

(ii) shall have and comply with written policies and procedures to transition clients into equivalent, safe, currently licensed programs or into the custody of their legal guardians[;].

(c) [t]The Office may revoke a license;

(i) a human services program that has had its license revoked is prohibited from accepting new clients and may only provide the services necessary to maintain client health and safety during their transition[,]; and

([A]ii) shall have and comply with written policies and procedures to transition clients into equivalent, safe, currently licensed program or into the custody of their legal guardians[;].

([B]d) Names of licensees and programs who have had their licenses revoked shall be maintained by the Office for a period of five years, and shall not be associated in any way with a licensed program during that five-year period.

([d]e) A licensee whose license has been suspended or revoked is responsible for the program staffing and health and safety need s of all clients while the suspension or revocation is pending.

([e]f) The Office may place conditions, such as restricted admissions, to be in immediate effect in the Notice of Agency Action, if necessary, to protect the health and safety of clients.

([f]g) The Office may utilize any other penalties pursuant to 62A-2, Subsections 112, 113 and/or 116.

([g]h) The Office may consider chronicity, severity, and pervasiveness of violations when determining whether to simply provide notification of violations with no follow-up requirement; or to request a corrective action plan; or to apply a formal penalty to the program.

([h]i) Repeated violations of the same rule or statute, or failure to comply with conditions of a Notice of Agency Action may elevate the penalty level assessed.

([i]j) A licensee shall post the Notice of Agency Action on-site, and on the homepage of each of its websites, where it can be easily reviewed by all clients, guardians of clients, and visitors within five business days, and shall remain posted [for 90 days]until the resolution of the penalty, unless otherwise [noted]instructed by the Office.

([j]k) A licensee shall notify all clients, guardians and prospective clients of a Notice of Agency Action issued by the Office within five business days. Prospective and new clients will be notified for as long as the Notice of Agency Action is in effect.

([k]l) Pending an appeal of a revocation, suspension or conditional license that restricts admissions, licensee shall not accept any new clients as outlined on the Notice of Agency Action, or while an appeal of a penalty is pending without prior written authorization from the Office.

([l]m) The Office shall electronically post Notices of Agency Action issued to a human services program, on the Office's website, in accordance with 62A-2-106.

([m]n) Due Process: A Notice of Agency Action shall inform the applicant or licensee of the right to appeal in accordance with Administrative Rule 497-100.

 

R501-1-1[2]1 . Licensing Code of Conduct and Client Rights.

(1) Licensees and staff shall:

(a) [accurately]transparently represent services, fees, and policies and procedures to clients, guardians, prospective clients, and the public;

(b) disclose any potential or existing conflicts of interest to the Office;

(c) comply with all federal, state, and local laws that govern the program;

(d) report all criminal activity;

(i) significant criminal activity and medical emergencies shall be immediately reported to the appropriate emergency services agency per 62A-2-106-2;

([b]e) [create, maintain, and ]comply with a written policy that addresses the appropriate treatment of clients, to include the rights of clients as outlined in this [s]Section;

([c]f) not abuse, neglect, harm, exploit, mistreat, or act in a way that compromises the health and safety of clients through acts or omissions, by encouraging others to act, or by failing to deter others from acting;

([d]g) not use or permit the use of corporal punishment and shall only utilize restraint as [described in R501-2] defined in this Chapter and outlined in applicable Human Service Rules when an individual's behavior presents imminent danger to self or others;

([e]h) maintain the health and safety of clients in all program services and activities, whether on or offsite;

(i) provide services and supervision that is commensurate with the skills, abilities, behaviors, and needs of each client;

(j) not serve clients outside the program's scope of services;

([f]k) not commit fraud;

([g]l) provide an insurer the licensee's records related to any services or supplies billed, upon request by an insurer or the Office;

(m) not charge clients for any fees or expenses that were not previously disclosed to the client;

(n) accept fees only for the services or expenses the provider is willing and able to provide;

(o) not handle the major personal business affairs of a client, without request in writing by the client or legal representative;

([h]p) require that any licensee or staff member who is aware of, or suspects abuse, neglect, mistreatment, fraud, or exploitation shall ensure that a report is made to the Office and applicable investigative agencies as outlined in R501-1-10-2, and in compliance with mandatory reporting laws, including 62A-4a-403 and 62A-3-305;

(i) any licensee or staff member who is aware of, or suspects a violation of this [r]Rule or any governing local ordinance or state or federal law, shall ensure that a report is made to the Office of Licensing [at 801-538-4242]via email at: licensingconcerns@utah.gov, or directly to the licensor of the specific program or site[; and].

[(j) provide services and supervision that is commensurate with the skills, abilities, behaviors, and needs of each client.]

(2) Clients have the right to:

(a) be treated with dignity;

(b) be free from potential harm or acts of violence;

(c) be free from discrimination;

(d) be free from abuse, neglect, mistreatment, exploitation, and fraud;

(e) privacy of current and closed records;

(f) communicate and visit with family, attorney, clergy, physician, counselor, or case manager, unless therapeutically contraindicated or court restricted;

(g) be informed of agency policies and procedures that affect client or guardian's ability to make informed decisions regarding client care, to include:

(i) program expectations, requirements, mandatory or voluntary aspects of the program;

(ii) consequences for non-compliance;

(iii) reasons for involuntary termination from the program and criteria for re-admission;

(iv) program service fees and billing; and

(v) safety and characteristics of the physical environment where services will be provided.

(3) [c]Clients shall be informed of these rights and a n acknowledgment [copy signed ]by the client or guardian shall be maintained in the client file.

(4) [l]Licensees shall train all staff annually on agency policies and procedures, Licensing rules, and the Licensing Code of Conduct.

(i) [A document] verif[ying]ication this training shall be [signed and] dated and acknowledged by [the trainer and] each staff member[and maintained in the staff personnel file].

 

R501-1-1[3]2 . Compliance.

(1) A licensee that is in operation on the effective date of this [r]Rule shall be given 60 days to achieve compliance with this [r]Rule.

 

KEY: licensing, human services

Date of Enactment or Last Substantive Amendment: [January 17], 2017

Notice of Continuation: October 18, 2012

Authorizing, and Implemented or Interpreted Law: 62A-2-101 et seq.