DAR File No. 43003

Health, Family Health and Preparedness, Licensing

Rule R432-35

Background Screening -- Health Facilities

Notice of Proposed Rule

(Amendment)

DAR File No.: 43003
Filed: 06/15/2018 10:31:45 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to modify this rule to allow fingerprinting of applicants under the age of 18, clarify the types of deniable charges and convictions, and to make technical changes that match the current process for background screening for licensed health care facilities. The Health Facility Committee reviewed and approved this rule amendment on 05/09/2018. H.B. 89 from the 2018 General Session allows fingerprinting of applicants under the age of 18.

Summary of the rule or change:

This rule amendment modifies this rule to allow fingerprinting of applicants under the age of 18 as per the statute changes from H.B. 89 (2018). It also clarifies the types of deniable charges and convictions to allow direct patient access and makes technical changes that match the current process for background screenings for licensed health care facilities.

Statutory or constitutional authorization for this rule:

• Title 26, Chapter 21

Anticipated cost or savings to:

the state budget:

The state government background screening process was thoroughly reviewed. This proposed rule amendment could lead to fewer staff hours required as applicants under 18 may be fingerprinted which requires staff to process the applicant once instead of twice, however, with all the variables this is an inestimable benefit to the state budget.

local governments:

Local government city business licensing requirements were considered. This proposed rule amendment should not impact local governments revenues or expenditures.

small businesses:

After conducting a thorough analysis, it was determined that this rule amendment could lead to a small benefit for small business licensed health care facilities as it may require less man hours to process background screenings as they will no longer be required to resubmit information once an employee turns 18, however, with all the variables this is an inestimable benefit. There are 553 small businesses (NAICS codes used - Homes for the Elderly 623312, Nursing Care Facilities 623110, Home Health 621610 and End Stage Renal Disease).

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

After conducting a thorough analysis, it was determined that this rule amendment will not result in a fiscal impact to other persons because this amendment modifies health care facility requirements.

Compliance costs for affected persons:

After conducting a thorough analysis, it was determined that this proposed rule amendment will not result in a fiscal impact to affected persons because this amendment modifies health care facility requirements and therefore, would not add any compliance costs to affected persons.

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

There may be a fiscal benefit to businesses through a savings of personnel time and effort to process background screenings for employees and applicants for employment with direct access to patient care.

Joseph K. Miner, MD, Executive Director

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

Health
Family Health and Preparedness, Licensing
3760 S HIGHLAND DR
SALT LAKE CITY, UT 84106

Direct questions regarding this rule to:

• Joel Hoffman at the above address, by phone at 801-273-2804, by FAX at 801-274-0658, or by Internet E-mail at jhoffman@utah.gov
• Carmen Richins at the above address, by phone at 801-273-2802, by FAX at 801-274-0658, or by Internet E-mail at carmenrichins@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:

07/31/2018

This rule may become effective on:

08/07/2018

Authorized by:

Joseph Miner, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There are 57 non-small business (NAICS codes used - Homes for the Elderly 623312, Nursing Care Facilities 623110, Home Health 621610and End Stage Renal Disease).

 

After conducting a thorough analysis, it was determined that this rule amendment could lead to a small benefit for non-small business Licensed health care facilities as it may require less man hours to process background screenings as they will no longer be required to resubmit information once an employee turns 18, however, with all the variables, this is an inestimable benefit.

 

The Department of Health Executive Director Joseph K. Miner, MD, has reviewed and approved this fiscal analysis.

 

 

R432. Health, Family Health and Preparedness, Licensing.

R432-35. Background Screening -- Health Facilities.

R432-35-4. Covered Provider - Direct Access Clearance System Process.

(1) Utah Code, Title 26, Chapter 21, Part 2 requires that a covered provider enter required information into the Direct Access Clearance System to initiate a clearance for each covered individual prior to issuance of a provisional license, license renewal or engagement as a covered individual.

(2) The covered provider must ensure that the engaged covered individual:

(a) Signs a criminal background screening authorization form which must be available for review by the department; and

(b) Submits fingerprints within 15 working days of engagement.

(3) The covered provider must ensure the Direct Access Clearance System reflects the current status of the covered individual within 5 working days of the engagement or termination.

(4) A covered provider may provisionally engage a covered individual while direct patient access clearance is pending.

(5) If the Department determines an individual is not eligible for direct patient access, based on information obtained through the Direct Access Clearance System, the Department shall send a Notice of Agency Action to the covered provider and the individual explaining the action and the individual's right of appeal as defined in R432-30.

(6) A covered provider may not allow a covered individual who has been determined to be not eligible for direct patient access to be engaged in a position with direct patient access.

(7) The Department may allow a covered individual direct patient access with conditions, during an appeal process, if the covered individual can demonstrate the work arrangement does not pose a threat to the safety and health of patients or residents.

([7]8) A covered provider that provides services in a residential setting must enter required information into the Direct Access Clearance System to initiate and obtain a clearance for all individuals 12 years of age and older, who are not residents, and reside in the residential setting. If the individual is not eligible for clearance as defined in R432-35-8, the Department may revoke an existing license or deny licensure for healthcare services in the residential setting.

[(8) Covered individuals under the age of 18 are not required to submit fingerprints as part of the Direct Access Clearance process. Covered individuals, while engaged with a covered provider, are required to submit fingerprints within 15 working days of their 18th birthday.]

(9) Covered providers requesting to renew a license as a health care facility must [enter required information into]utilize the Direct Access Clearance System to run a verification report and verify that each covered individual's information is correct, including:

(a) employment status;

(b) address; and

(c) name[initiate and obtain a clearance for each covered individual].

(10) Individuals or covered individuals requesting to be licensed as a covered provider must submit required information to the Department to initiate and obtain a clearance prior to the issuance of the provisional license. If the individuals are not eligible for clearance as defined in R432-35-8, the Department may revoke an existing license or deny licensure as a health care facility.

 

R432-35-5. Covered Contractor - Direct Access Clearance System Process.

(1) Utah Code, Title 26, Chapter 21, Part 2 requires that a covered contractor enter required information into the Direct Access Clearance System to initiate a clearance for each covered individual prior to being supplied by contract to a covered provider.

(2) A covered contractor must ensure that the covered individual, being supplied by contract to a covered provider:

(a) Signs a criminal background screening authorization form which must be available for review by the department; and

(b) Submits fingerprints within 15 working days of placement with a covered provider.

(3) The covered contractor must ensure the Direct Access Clearance System reflects the current status of the covered individual within 5 working days of placement or termination.

(4) A covered contractor may provisionally supply a covered individual to a covered provider while clearance is pending.

(5) If the Department determines an individual is not eligible for direct patient access, based on information obtained through the Direct Access Clearance System, the Department shall send a Notice of Agency Action to the covered contractor and the individual explaining the action and the individual's right of appeal as defined in R432-30.

(6) A covered contractor may not supply to a covered provider a covered individual who has been determined to be not eligible to have direct patient access.

(7) The Department may allow a covered individual direct patient access with conditions, during an appeal process, if the covered individual can demonstrate the work arrangement does not pose a threat to the safety and health of patients or residents.

[(7) Covered individuals under the age of 18 are not required to submit fingerprints as part of the Direct Access Clearance process. Covered individuals, while engaged with a covered contractor, are required to submit fingerprints within 15 working days of their 18th birthday.]

 

R432-35-8. Exclusion from Direct Patient Access.

(1) [Criminal ]Convictions or Pending Charges

(a) As required by Utah Code Subsection 26-21-204, if an individual or covered individual has been convicted, has pleaded no contest, or is subject to a plea in abeyance or diversion agreement, for the following offenses, they may not have direct patient access:

(i) any felony or class A conviction under Utah [Criminal ]Code.

(ii) any felony, class A or B conviction under Utah Criminal Code 76-6-106(2)(b)(i)(A) Criminal Mischief - Human Life;

(iii) any felony or class A, B or C conviction under [Title 76, Chapter 5 Offenses Against the Person, Utah Criminal Code;

(iii) any felony or class A conviction under Title 76, Chapter 6, Offenses Against Property, Utah Criminal Code;

(iv) any felony or class A conviction under Title 76, Chapter 6a, Pyramid Schemes, Utah Criminal Code;

(v) any felony or class A conviction under Title 76, Chapter 8, Offenses Against the Administration of Government, Utah Criminal Code;

(vi) any felony or class A conviction under Title 76, Chapter 9, Offenses Against Public Order and Decency, Utah Criminal Code;

(vii) any felony or class A, B or C conviction under ]the following Utah [Criminal ]Codes:

(A) 76-4 Enticement of a Minor;

(B) 76-5 Offenses Against the Person;

(C) 76-9-301.8, Bestiality;

(D) 76-9-702 to 702.5 Lewdness - Sexual Battery - Public urination - Lewdness Involving Child - Voyeurism offenses;

(E) 76-10-1201 to 1229.5, Pornographic and Harmful Materials and Performances;

(F) 76-10-1301 to 1314, Prostitution; and

(G) 62A-3-305 failure to report suspected abuse, neglect, or exploitation of a vulnerable adult.[76-9-301.8, Bestiality;

(B) 76-9-702, Lewdness - Sexual Battery - Public urination; and

(C) 76-9-702.5, Lewdness Involving Child.

(viii) any felony or class A conviction under Title 76, Chapter 10, Offenses Against Public Health, Welfare, Safety and Morals, Utah Criminal Code;

(ix) any felony or class A, B or C conviction under the following Utah Criminal Codes:

(A) 76-10-1201 to 1229.5, Pornographic and Harmful Materials and Performances; and

(B) 76-10-1301 to 1314, Prostitution;

(x) any felony or class A conviction under Utah Criminal Code 76-10-2301, Contributing to the Delinquency of a Minor;]

(b) As required by Utah Code Subsection 26-21-204, if an individual or covered individual has a warrant for arrest or an arrest for any of the identified offenses in R432-35-8(1)(a), the department may deny clearance based on:

(i) the type of offense;

(ii) the severity of offense; and

(iii) potential risk to patients or residents.

(2) Juvenile Records

(a) As required by Utah Code Subsection 26-21-204(4)(a)(ii)(E), juvenile court records shall be reviewed if an individual or covered individual is:

(i) under the age of 28; or

(ii) over the age of 28 and has convictions or pending charges identified in R432-35-8(1)(a).

(b) Adjudications by a juvenile court may exclude the individual from direct patient access if the adjudications refer to an act that, if committed by an adult, would be a felony or a misdemeanor.

(3) Non-Criminal Records

(a) As required by Utah Code Subsection 26-21-204(3), the Department may review findings from the following sources to determine whether an individual or covered individual should be granted or retain direct patient access:

(i) the Department of Human Services' Division of Child and Family Services Licensing Information System described in Section 62A-4a-1006;

(ii) child abuse or neglect findings described in Section 78A-6-323;

(iii) the Department of Human Services' Division of Aging and Adult Services vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;

(iv) registries of nurse aids described in Title 42 Code of Federal Regulations Section 483.156;

(v) licensing and certification records of individuals licensed or certified by the Division of Occupational and Professional Licensing under Title 58, Occupations and Professions; and

(vi) the List of Excluded Individuals and Entities database maintained by the United States Department of Health and Human Services' Office of Inspector General.

(4) Review of Relevant Information

(a) Results of background screening review, as listed above in R432-35-8(1), (2), and (3), may be reviewed to determine under what circumstance, if any, the covered individual may be granted or retain direct patient access. The following factors may be considered:

(i) types and number;

(ii) passage of time;

(iii) surrounding circumstances;

(vi) intervening circumstances; and

(v) steps taken to correct or improve.

(b) The department shall rely on relevant information identified in R432-35-8(1), (2), and (3) as conclusive evidence and may deny clearance based on that information.

 

KEY: health care facilities, background screening

Date of Enactment or Last Substantive Amendment: [January 27, 2015]2018

Notice of Continuation: January 29, 2018

Authorizing, and Implemented or Interpreted Law: 26-21-9.5