DAR File No. 28268

Human Services, Administration, Administrative Services, Licensing

R501-14

Criminal Background Screening

NOTICE OF PROPOSED RULE

DAR File No.: 28268
Filed: 09/30/2005, 11:00
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being repealed to accommodate the combining of this rule (Criminal Background Screening) and Rule R501-18 (Abuse Background Screening) as a result of changes in Sections 62A-2-101, 62A-2-120, 62A-2-121, and 62A-2-122 passed by the 2005 State Legislature.

Summary of the rule or change:

As a result of the passage of H.B. 64, H.B. 79, and S.B. 107 in the 2005 legislature, Rule R501-14 is being repealed in its entirety and a new Rule R501-14 will be created with this rule and the current Rule R501-18 which is also being repealed. (DAR NOTES: The proposed repeal of Rule R501-18 is under DAR No. 28270 in this issue. The proposed new Rule R501-14 is under DAR No. 28191 in the September 15, 2005, issue of the Bulletin. H.B. 64 (2005) is found at UT L 2005 Ch 107, and was effective 05/02/2005. H.B. 79 (2005) is found at UT L 2005 Ch 60, and was effective 05/02/2005. S.B. 107 (2005) is found at UT L 2005 Ch 188, and was effective 05/02/2005.)

State statutory or constitutional authorization for this rule:

Sections 62A-2-101, 62A-2-120, 62A-2-121, 62A-2-122, 62A-3-101, and 62A-5-101

Anticipated cost or savings to:

the state budget:

Anticipated costs to the state will be minimal if any at all. Potential costs are being absorbed in existing budgets.

local governments:

No impact is anticipated. This rule does not affect the cost of operation or enforcement by local government.

other persons:

There may be some costs passed on to the applicant for a background screening. Those requiring a nationwide background check are subject to a $24 fee assessed by the Federal Bureau of Investigation (FBI).

Compliance costs for affected persons:

The repeal of this rule will not change the compliance costs for affected persons. Currently, the costs for required background screens are borne by the screening applicant if required.

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

The repeal of this rule creates no additional fiscal impact on business. There is, and has been, a minimal fiscal impact on those businesses (licensee programs/facilities) that choose to financially assist their staff with the cost of nationwide background screens. The repeal of this rule will not change that impact, nor does it impact any other businesses besides the licensee programs and facilities. Lisa-Michele Church, Executive Director

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

Direct questions regarding this rule to:

Jan Bohi at the above address, by phone at 801-538-4153, by FAX at 801-538-4553, or by Internet E-mail at jbohi@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:

11/14/2005

This rule may become effective on:

11/15/2005

Authorized by:

Ken Stettler, Director

RULE TEXT

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

[R501-14. Criminal Background Screening.

R501-14-1. Criminal Background Screening.

A. Authority

1. Pursuant to UCA 62A-2-120 and UCA 62A-4a-413, a Bureau of Criminal Identification, screening shall be conducted on licensees and persons associated with a licensee of a public or private agency or individual licensed by the Department of Human Services, referred to as DHS, to provide services for children.

2. Pursuant to UCA 78-30-3.5(2)(a), a criminal background screening shall be conducted as part of the Preplacement Adoptive Study.

3. The National Child Protection Act, Public Law 103-209, authorizes a state to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon an individual's fitness to have responsibility for the safety and well-being of children.

B. Purpose

The purpose of the criminal background screening, referred to as CBS, as a part of the licensing process for DHS, is to protect children in licensed programs from individuals who have been convicted of serious crimes, or individuals whose conduct or pattern of conduct is contrary to the safety and well-being of children.

R501-14-2. Definitions.

A. "Administrative Law Judge" means an employee of the DHS who acts as an independent decision maker who considers the evidence introduced at the hearing and renders a decision based solely on that evidence and all relevant law and policy, herein referred to as ALJ.

B. "Adult" means a person 18 years of age, or older.

C. "Authorized Worker" means the director or designee of a facility or an employee of DHS regional offices.

D. "Authorized DHS Worker" means an employee of the Department of Human Services authorized to have access to OL and CBS information as determined by the Director, Office of Licensing, DHS.

E. "Bureau of Criminal Identification" means the designated state agency including "terminal agency users" of the Division of Criminal Investigation and Technical Services Division, within the Department of Public Safety, referred to as DPS, responsible to maintain criminal records in the State of Utah, herein referred to as BCI.

F. "Consumer" means an individual, i.e., client, resident, customer, etc., who receives services from a licensee.

licensee or.

G. "Direct supervision" means that the licensee or person associated with the licensee is never with a client without their supervisor present.

H. "Director"means the person responsible, as delegated by the governing body, for the technical and programmatic aspects of the program. This person should provide direct supervision of the day-to-day aspects of the program operation.

I. "Department of Human Services" means the State Department authorized to provide human services, including licensing, herein referred to as DHS.

J. "Department of Human Services/Criminal Background Screening Committee" means the committee designated by the Director of DHS to review criminal background information, herein referred to as DHS/CBS Committee.

K. "The Division of Child and Family Services" means the DHS Division which operates regional human service offices, herein referred to as DCFS.

L. "The Utah Department of Public Safety" means the Department with the policy making functions and regulatory and enforcement powers pertaining to public safety, herein referred to as DPS.

M. "The Division of Services for People With Disabilities" means the DHS Division responsible for providing services for people with disabilities, herein referred to as DSPD.

N. "Employee" means a person who performs services for a licensee in a paid or otherwise compensated capacity.

O. "Frequent visitor" means an adult who visits on a recurring basis in a home where home based care is provided.

P. "GRAMA" means the Government Records Access and Management Act that covers information access and privacy of provider files. Refer to UCA 63-2-101(2), Section 45, CFR 5, 1990, Part 2, Section 7 of the Social Security Act; and in the Federal Privacy Act of 1974.

Q. "Human services licensee or licensee" means a youth program, resource family home, or a facility or program that provides services, care, secure treatment, inpatient treatment, residential treatment, residential support, adult day care, day treatment, outpatient treatment, domestic violence treatment, child placing services, or social detoxification licensed by the Office of Licensing.

R. "Identifying information" means individual data including, but not limited to; name, all aliases, date of birth, social security number, and driver license, or state identification card.

S. "Members of Governing Body" means the individuals who comprise the Board of Trustees, Directors or other body who has the ultimate authority and responsibility for the conduct of the licensee.

T. "Office of Administrative Hearings" means the office in DHS which conducts hearings according to the Utah Administrative Procedures Act, herein referred to as OAH.

U. "Office of Licensing" means the office in DHS, authorized by law, to license facilities and programs, herein referred to as OL.

V. "Owner" means anyone listed in the Articles of Incorporation, Limited Partnership, etc. who has a legal interest in or legal right to the possession and to direct the affairs of the program.

W. "Person associated with the licensee" means any owner, director, member of the governing body, employee, provider of care, or volunteer of human service licensee. Also, any person 18 years of age or older who resides in a home or is a frequent visitor where home-based care is provided.

X. "Provider of care" means a person who provides direct services for licensee consumers.

Y. "Provider" means a public or private agency, owner, director, member of governing body, employee, volunteer, or other individual having a license to provide services to children.

Z. "Utah Computerized Criminal History Data Base" means the internal, computerized data bases maintained by BCI/DPS, herein referred to as UCCH Database.

AA. "UAPA" means the Utah Administrative Procedures Act as found in UCA 63-46b-1 through UCA 63-46b-21, herein referred to as UAPA.

BB. "Volunteer" means a person other than a parent or guardian of a child or an adult receiving care in the facility, who performs services for a licensee in a non-paid capacity.

R501-14-3. Procedure for Criminal Background Screening.

A. All proposed licensees and persons associated with the licensee who are licensed to provide services for children, shall submit a Consent and Release of Liability and Request for Background Screening form to the DHS OL for criminal background screening. Each licensee and person associated with the licensee will attach a copy of one photo identification issued by a governmental agency, either a driver license, or a state issued identification card, and their Social Security number. The Utah State governmental identification must show an address identical to the Consent and Release of Liability and Request for Background Screening form, to establish residency.

B. Persons 18 years of age or older residing in the home or frequent visitors of home based care must also comply with this requirement.

1. A licensee shall submit the identifying information to DHS for criminal background screening prior to hiring a new employee. The licensee assumes all liability if an individual is hired prior to receiving the criminal background screening approval. The licensee is also responsible for directly supervising individuals hired before receiving the required background screening approval. In the case of emergency hiring, a licensee shall immediately submit the identifying information to DHS for criminal background screening.

2. An application for a new license will not be approved until the criminal background screenings have been completed. For renewal licenses in case of emergency or need for immediate placement of a child, a conditional license may be issued for a maximum of thirty days to allow for the criminal background screening to be completed.

3. A licensee applying for license renewal will have thirty days prior to license expiration to submit the identifying information of all licensees and persons associated with the licensee to DHS for criminal background screening.

4. A home-based licensee applying for license renewal will have thirty days prior to license expiration to submit to DHS for criminal background screening the identifying information on all persons associated with the licensee.

C. When the OL receives the identifying information from the applicant licensee, the OL will access the UCCH Database to conduct the criminal background screening for a determination of whether or not the applicant has been convicted of any crime under the laws of the State of Utah.

D. When a licensee or person associated with a licensee has not lived in Utah for the last five consecutive years, or has unexplained gaps in work or residence record, the request for a FBI national criminal history record check will be made by OL. The licensee or person associated with the licensee shall be responsible to provide the OL with completed fingerprint cards and a cashier's check or money order for the cost of the nationwide check within 10 days after receiving the request. Licensees or persons associated with the licensee may also be required to provide the OL with a criminal history from the states they have lived in, upon request by the OL. The person associated with the licensee is responsible for all costs associated with obtaining the criminal history. The criminal history shall be provided within 90 days of the date of the OL request. For persons associated with the licensee who are citizens of foreign countries and have not lived in Utah for the last five consecutive years, the OL may accept a photo copy of both the front and back of U.S. Department of Justice Immigration and Naturalization Service resident alien card to verify the screening was accomplished prior to entry into the United States. The OL may also accept a copy of a criminal history from the country of citizenship to determine if the individual has been convicted of any crime. Either a copy of a resident alien card or criminal history from the foreign country must be submitted to the OL within 90 days after requested by the OL.

E. If a licensee or person associated with the licensee does not provide the requested information and fees within the time frames specified, their application will be denied and they will not be eligible to provide services for the program or children.

F. An applicant requesting initial licensure for a program serving children, who has lived or operated programs in Utah for less than five years, may be screened through the nationwide FBI process.

G. Licensees or persons associated with the licensee who have complied with the above requirements, may continue to work under direct supervision pending the outcome of the criminal background screening.

H. If a licensee or person associated with the licensee has an arrest record without a final disposition, including, but not limited to the following: warrant issued, plea held in abeyance, court date pending, diversion agreement, adjudication withheld, the background screening consent and release of liability will be returned to the licensee or authorized worker. The OL will not process criminal background screenings until there is a final disposition.

R501-14-4. Results of Screening.

When the criminal background screening is completed, OL will take the following action:

A. Approval:

If a licensee or person associated with the licensee is found to have no criminal history record, or if the only offenses are misdemeanors or infractions not involving domestic violence, lewdness, battery, offenses identified in the Utah Criminal Code as offenses against the family, offenses against the person, pornography, prostitution, or any type of sexual offense, and the conviction date is older than five years, a notice will be sent to the authorized DHS worker stating that the person is approved to provide services for the licensed program serving children.

B. Denial:

1. A licensee or person associated with a licensee convicted of a felony shall not be given a background screening clearance required to provide services for the licensed program serving children.

2. A licensee or person associated with a licensee convicted of a misdemeanor or infraction involving an offense identified as domestic violence, lewdness, battery, or an offense identified in the Utah Criminal Code as offenses against the family, offenses against the person, pornography, prostitution, or any type of sexual offense, shall not be given a background screening clearance to provide, or volunteer, services for the licensed program serving children.

3. If a licensee or person associated with a licensee has been convicted within the last five years of a misdemeanor or infraction not listed in paragraph 2 above, a further study of the criminal and court records will be required. A comprehensive review of the individual circumstances shall be conducted by the DHS/CBS Committee.

4. If a licensee or person associated with a licensee has a criminal history record that indicates there are misdemeanor or infraction offenses, a misdemeanor or infraction conviction, conduct, or pattern of conduct, or failure to disclose a criminal conviction on the Consent and Release of Liability and Request for Background Screening form, it may result in a denial of a criminal background clearance. Further study of the criminal and court records by the DHS/CBS Committee will be conducted.

5. If a licensee or person associated with a licensee may have a criminal record, the OL may send a notice to the licensee or authorized worker requesting a fingerprint card and fee to be submitted to the OL within 72 hours after receiving the notice.

a. The required fingerprint card must be obtained from OL because these cards are stamped with DHS OL. Use of other cards may result in difficulties in completing the BCI screening, which may cause a loss of license or employment.

b. The person shall be fingerprinted either by the local law enforcement agency or an agency approved by law enforcement.

c. The fingerprinted card and the fee, in the form of a money order or cashier's check made payable to Utah DPS BCI, shall be sent to DHS OL for processing. This shall be completed by the person associated with a licensee. Failure to submit the fingerprint card and fee will result in the background screening application being denied and the person associated with the licensee will not be eligible to provide services for children.

d. The fingerprint card and fee will be submitted to the DPS BCI by the OL.

e. DPS BCI will submit the results and cards to OL.

f. The DHS/CBS committee will concurrently review the misdemeanor and infraction offenses within the last five years to determine whether or not the licensee or person associated with a licensee shall be approved or denied.

R501-14-5. DHS/CBS Committee Review.

A. A DHS/CBS Committee composed of members designated by the Director of DHS representing the various Divisions of DHS shall conduct a comprehensive review of the criminal background screening results at least twice a month.

B. The Committee shall, at a minimum, review the date and the type of offense or conviction, written documentation, the legal status of the individual, conduct or pattern of conduct, and if the criminal conviction was disclosed on the Consent and Release of Liability and Request for Background Screening form.

C. The committee shall maintain a record of the review to include the findings of fact, conclusions of each case, and a copy of the UCCH record and fingerprint card, when appropriate.

R501-14-6. Results of the DHS/CBS Committee Review.

A. Approval: If based upon DHS/CBS committee review, a decision is reached to approve a licensee or person associated with a licensee, a criminal background screening clearance shall be issued.

B. Denial:

1. If, based upon DHS/CBS Committee review of the circumstances, there exists credible evidence that the licensee or person associated with a licensee, poses a threat to the safety and health of the consumers being served by the human service program, a criminal background screening clearance shall not be issued.

2. If a decision is reached to deny, or revoke, proper legal notice of agency action will be sent to the licensee or applicant by the DHS or the OL.

3. The licensee or person associated with the licensee may request a hearing in accordance with the UAPA, UCA 63-46b.

R501-14-7. Conviction After Licensure.

If a licensee or person associated with the licensee is convicted of a felony, misdemeanor, or infraction after a license is issued, the licensee has five working days to notify OL. Failure to notify will result in automatic, immediate suspension of the license. When notice of a conviction is received, OL will respond as stated in UCA 501-14-3, et seq.

R501-14-8. Confidentiality.

A. The results of the criminal background screening shall only be released to individuals approved by the Department of Human Services who have signed a Non-Disclosure statement, which includes acknowledging the existence or non-existence of a criminal history by an Authorized DHS Worker. The information will be disclosed according to UCA 53-10-108.

B. The results of the criminal background screening will not be given over the telephone. The information must be requested in writing with the proper releases.

C. All documents relating to a criminal background screening must be maintained and stored as confidential material. When determined the document is no longer needed it must be destroyed, in a manner that secures its privacy, i.e., shredded, burned, etc.

R501-14-9. Retention of Identifying Information, Fingerprint Cards, and Criminal Background Screening.

A. Identifying Information and criminal background screening results shall be retained by the licensee for the duration of the person's association with the licensee. Screening results cannot be shared, transferred, or further disseminated to any other licensee or individual.

B. Identifying information, fingerprint cards, and criminal background screening results of persons whose background screening have been denied, and fingerprint cards for persons approved, shall be retained in the OL, pursuant to UCA 63-2-101, et seq.

R501-14-10. Expungement.

A. Licensees and persons associated with a licensee whose background screening applications have been denied due to a criminal record, may request further information or expungement of the record through the DPS BCI pursuant to UCA 77-18-11.

B. When a criminal record is expunged, the licensee or person associated with a licensee may re-apply for a background screening clearance.

C. Information regarding procedures for criminal record expungement may be obtained from BCI. The costs of expungement are the responsibility of the licensee or person associated with the licensee.

R501-14-11. Administrative Hearing.

A. A licensee or person associated with the licensee, who has been convicted of a felony, has no right to a UAPA hearing.

B. A licensee or person associated with the licensee who has been denied a license or employment based upon a misdemeanor or infraction conviction may request a hearing in accordance with the UAPA. A licensee or person associated with the licensee requesting a hearing may continue to work under direct supervision until the hearing decision is issued. The person associated with the licensee or a licensee has no right to a UAPA hearing, unless there is a disputed issue of fact with the DHS policy.

C. When action to deny, revoke, or suspend a license is based upon a review by the DHS/CBS Committee and new evidence not considered by the committee is introduced at the hearing, the committee's representative may request that the case be remanded to the committee to consider the new evidence.

1. If the committee determines denial, revocation, or suspension is still warranted after further review, the committee chairperson will notify both the person associated with the licensee or the licensee and the OAH. The ALJ may then reconvene the hearing if necessary to complete the record. A final decision will be issued based on all of the evidence in the record.

2. If, after reviewing the new evidence, the committee recommends licensure, the OL will then send an appropriate notice to the licensee with a copy to OAH. After receiving notice that the license in dispute has been granted, OAH will close it's files without issuing a decision.

KEY: licensing, human services

March 22, 1999

Notice of Continuation May 18, 2001

62A-2-120

62A-4a-413]

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For questions regarding the content or application of this rule, please contact Jan Bohi at the above address, by phone at 801-538-4153, by FAX at 801-538-4553, or by Internet E-mail at jbohi@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.