DAR File No. 28270

Human Services, Administration, Administrative Services, Licensing

R501-18

Abuse Background Screening

NOTICE OF PROPOSED RULE

DAR File No.: 28270
Filed: 09/30/2005, 12:04
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This rule is being repealed to accommodate the combining of this rule (Abuse Background Screening) and Rule R501-14 (Criminal Background Screening) as a result of changes in Sections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As a result of the passage of H.B. 64, H.B. 79, and S.B. 107 in the 2005 legislature, Rule R501-18 is being repealed in its entirety and a new Rule R501-14 will be created with this rule and the current Rule R501-14 which is also being repealed. (DAR NOTES: The proposed repeal of Rule R501-14 is under DAR No. 28268 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 screen. 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 existing state budgets; and the cost of an FBI nationwide check is 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 business beside 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.

[R501-18. Abuse Background Screening.

R501-18-1. Management Information System.

A. Authority

1. Pursuant to UCA 62A-2-121 and UCA 62A-4a-116, a review of the Management Information System shall be conducted of all licensees and persons associated with the licensee as part of the initial and annual licensing process.

2. Pursuant to UCA 62A-3-311.1 a screening of licensees and persons associated with the licensee shall be conducted through the Adult Protective Services Data Base.

B. Purpose

The purpose of screening, as a part of the licensing process for the Department of Human Services, is to protect children and vulnerable adults from individuals who may have committed acts of abuse, neglect, or exploitation of a child or vulnerable adult.

R501-18-2. 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. "Adult Protective Services Worker" means an employee of the Department of Human Services who is designated to conduct abuse or neglect investigations of adults.

D. "Authorized Worker" means the director or designee of a facility or an employee of Department of Human Services.

E. "Authorized DHS Worker" means an employee of the Department of Human Services authorized to have access to the management information system as determined appropriate by the Director, Office of Licensing, Department of Human Services.

F. "Child Protective Service Worker" means an employee of the Department of Human Services who is designated to conduct abuse or neglect investigations of children.

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

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

I. "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.

J. "The Division of Aging and Adult Services" means the DHS Division responsible for administering and delivering services for aging and disabled adult residents of Utah, herein referred to as DAAS.

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

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

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 provisions of the Government Records Access and Management Act that provides for and covers information access and privacy of provider files, as found in UCA 63-2-101, et.seq.

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, name, date of birth, social security number, and a copy of a driver license, or state identification card, and all aliases.

S. "Management Information system" means the part of the DCFS management information system developed for licensing purposes in accordance with UCA 62A-4a-116 and the Adult Protective Services Database identified in UCA -3-311.1 herein referred to as "management information system"

T. "Member of a 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.

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

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

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

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

Y. "The Provider of Care" means a person who provides direct services for licensee consumers.

Z. 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.

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 vulnerable adult receiving care in the facility, who performs services for a licensed facility in a non-paid capacity.

CC. "Vulnerable Adult" means a disabled adult as defined in UCA 62A-3-301 (5); any person 18 years of age or older who is impaired because of mental illness, mental deficiency, physical illness or disability, or other cause, to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions concerning his person, or is unable to care for his own personal safety or provide necessities such as food, shelter, clothing or medical care, without which physical injury or illness may occur.

R501-18-3. Procedure for Abuse Background Screening.

A. Prior to hiring an individual, human service programs required to be licensed by DHS shall submit identifying information, including the names, date of birth, social security number, and driver's license or state identification card of all licensees and all persons associated with the licensee. Requests for clearance shall also be resubmitted annually thereafter. The screening will search for a history of abuse, neglect or exploitation of children or vulnerable adults.

B. Human service programs which are home based shall also submit identifying information including, the names, date of birth, social security number and a copy of the driver license or state identification card of all licensees and persons associated with the licensee for an initial and annual screening of the Management Information System to search for a history of abuse, neglect or exploitation of children or vulnerable adults.

C. If a licensee hires an individual without having the abuse background screening approval, the licensee assumes all liability and is responsible for directly supervising all individuals who have not received the required abuse background screening approval.

R501-18-4. Results of Screening.

A. Approval:

If the name of the licensee or person associated with the licensee does not appear on the management information system, the abuse background screening shall be cleared to provide services in the licensed DHS facility, program, or home serving children or vulnerable adults. Approval is only applicable to this specific facility, program, or home.

B. Comprehensive Review:

If the licensee or person associated with the licensee is identified in the Management Information System as a perpetrator of abuse, neglect or exploitation of children or vulnerable adults, their abuse background screening shall require further review by the DHS in accordance with R501-18-5.

R501-18-5. DHS Comprehensive Review.

A. A comprehensive review shall be conducted by the DHS.

B. The review shall seek to obtain the following information, including input regarding mitigating circumstances:

1. What is the nature of the abuse or neglect?

2. How long ago did the incident occur?

3. What was the severity of the abuse or neglect?

4. Was legal action taken?

5. What steps have been taken to remedy the situation?

6. Based upon the information available, does this person pose a threat to the safety and well-being of consumers of the licensee?

7. The review may also seek additional information from the applicant and other individuals, including all enforcement personnel who completed the investigation and the investigative worker.

C. The DHS shall maintain a record of the review to include the findings of fact and the conclusions of each case.

R501-18-6. Results of the DHS Review.

A. Approval:

1. If the DHS review determines that the licensee or person associated with the licensee does not pose a threat to consumers, the abuse background screening shall be approved.

B. Denial:

1. If, based upon DHS review of the circumstances, there exists credible evidence that the licensee, person associated with the licensee, or person living in the home or frequent visitor to the home poses a threat to the safety and health of the consumers being served by the human service licensee, an abuse background screening shall not be approved.

2. A Notice of Agency Action, herein referred to as NAA, will be sent to the licensee and the person associated with the licensee stating that the application for a abuse background screening approval has been denied.

a. In the case of out of home care, if the provider or applicant is terminated or dismissed within 24 hours, a license may continue.

b. If the licensee or person associated with the licensee is an adult residing in a home or a frequent visitor to a home where home based care is offered, the Office of Licensing shall not issue a license.

R501-18-7. Administrative Hearing.

A licensee or person associated with the licensee who is denied approval may request a hearing within 10 days in accordance with UAPA. The licensee or person associated with the licensee have no right to a UAPA hearing unless there is a disputed issue of fact with the DHS policy.

A. Status Pending the Hearing Results:

1. A licensee or person associated with the licensee requesting a hearing may continue to work under direct supervision until the hearing decision is issued.

2. If the licensee or person associated with the licensee is unable to work under direct supervision, a NAA shall be sent to the licensee stating that their current license has been placed on conditional status pending the results of the hearing.

3. If a person 18 or older residing in a home or a frequent visitor to a home where home based care is provided requests a hearing, a NAA shall be sent to the licensee stating that their current license has been placed on conditional status pending the outcome of the hearing and the person 18 or older living in the home or frequent visitor must never be present when consumers being served by the licensee are in the home pending the hearing decision.

4. The NAA must be posted in a conspicuous place where parents, consumers, or the public will obviously see and be able to read the notice. Programs with multiple service locations will post applicable notices at each of those locations. The Office of Licensing may also notify parents or the public directly, or require the facility or program to do so.

B. Participants of the DHS review shall be available to testify at the hearing.

1. When action to deny, revoke, or suspend a license or deny an abuse background screening is based upon the DHS review, and new evidence not considered by the DHS review is introduced at the hearing, the DHS review representative may request that the case be remanded to the DHS to consider the new evidence. If the DHS determines denial, revocation, or suspension is still warranted after further review, the DHS will notify both the licensee, person associated with the licensee, and the OAH. The OAH 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 DHS recommends that the abuse background screening be approved, the DHS shall advise the licensee and person associated with the licensee. The DHS will then send an appropriate notice to the licensee and person associated with the licensee and a copy to OAH.

R501-18-8. Referral After Licensure.

If a licensee or person associated with a licensee providing services to the program serving children or vulnerable adults who must obtain the abuse background screening approval is substantiated for adult or child abuse, neglect, or exploitation after receiving the abuse background approval, the licensee has five working days to notify the OL. Failure to notify may result in automatic, immediate suspension of the license. When notice of a substantiated abuse record is received, the OL will respond as stated in R501-18-5 above.

R501-18-9. Confidentiality.

The information contained on the Management Information System is confidential and shall only be released as authorized by UCA 62A-4a-412 for children or UCA 62A-3-311.1 for adults.

A. The information in the Management Information System may only be released to individuals approved by the DHS in accordance with UCA 62A-4a-412 or UCA 62A-3-311.1.

B. The information in the Management Information System will not be given over the telephone. The information must be requested in writing with the proper releases.

C. All documents relating to an abuse background screening must be maintained and stored in accordance with GRAMA.

KEY: licensing, human services

June 16, 1998

Notice of Continuation January 27, 2005

62A-2-101 et seq.]

ADDITIONAL INFORMATION

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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.