First Substitute S.B. 64

Senator Michael G. Waddoups proposes to substitute the following bill:

1 BACKGROUND CHECK OF HEALTH
2 CARE PROFESSIONALS
3 1998 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Michael G. Waddoups
6 AN ACT RELATING TO HEALTH; REQUIRING A CRIMINAL BACKGROUND CHECK OF
7 A PERSON ASSOCIATED WITH A HEALTH CARE FACILITY WHO PROVIDES
8 DIRECT CARE TO PATIENTS; PERMITTING ACCESS TO THE CHILD ABUSE
9 DATABASE S OR ELDER ABUSE DATABASE s WITH RESPECT TO A PERSON ASSOCIATED
9a WITH A HEALTH CARE
10 FACILITY THAT PROVIDES DIRECT CARE TO CHILDREN S OR ELDER ADULTS s ;
10a REQUIRING THE
11 DEPARTMENT OF HEALTH ESTABLISH RULES REGARDING PERMISSIBLE WORK
12 ACTIVITIES FOR THOSE WITH A CRIMINAL CONVICTION OR SUBSTANTIATED
13 FINDING OF CHILD S OR ELDER s ABUSE OR NEGLECT; EXTENDING IMMUNITY TO THE
14 SUBMISSION OF INFORMATION TO THE DEPARTMENT; h [ REPEALING ] AMENDING h THE
14a HEALTH
15 CARE ASSISTANT REGISTRATION ACT; h [ AND ] h PROVIDING AN EFFECTIVE DATE h ;
15a AND PROVIDING A COORDINATION CLAUSE h .
16 This act affects sections of Utah Code Annotated 1953 as follows:
17 AMENDS:
18 26-21-6, as last amended by Chapter 209, Laws of Utah 1997
18a1 h 58-62-102, as enacted by Chapter 289, Laws of Utah 1994
18a2 58-62-201, as enacted by Chapter 289, Laws of Utah 1994 h
18a S 62A-3-311.1, AS LAST AMENDED BY CHAPTER 130, LAWS OF UTAH 1996 s
19 62A-4a-412, as renumbered and amended by Chapter 260, Laws of Utah 1994
20 ENACTS:
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Amend on 2_goldenrod February 16, 1998 21 26-21-9.5, Utah Code Annotated 1953

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22 h [ REPEALS:
23 58-62-101, as enacted by Chapter 289, Laws of Utah 1994
24 58-62-102, as enacted by Chapter 289, Laws of Utah 1994
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Amend on 2_goldenrod February 16, 1998 25 58-62-201, as enacted by Chapter 289, Laws of Utah 1994 ] h

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1 h [ 58-62-301, as enacted by Chapter 289, Laws of Utah 1994
2 58-62-302, as enacted by Chapter 289, Laws of Utah 1994
3 58-62-303, as enacted by Chapter 289, Laws of Utah 1994
4 58-62-304, as last amended by Chapter 196, Laws of Utah 1997
5 58-62-305, as enacted by Chapter 289, Laws of Utah 1994
6 58-62-401, as enacted by Chapter 289, Laws of Utah 1994
7 58-62-501, as enacted by Chapter 289, Laws of Utah 1994
8 58-62-601, as enacted by Chapter 289, Laws of Utah 1994
9 58-62-602, as enacted by Chapter 289, Laws of Utah 1994
10 58-62-603, as enacted by Chapter 289, Laws of Utah 1994 ] h
11 Be it enacted by the Legislature of the state of Utah:
12 Section 1. Section 26-21-6 is amended to read:
13 26-21-6. Duties of department.
14 (1) The department shall:
15 (a) enforce rules established pursuant to this chapter;
16 (b) authorize an agent of the department to conduct inspections of health-care facilities
17 pursuant to this chapter;
18 (c) collect information authorized by the committee that may be necessary to ensure that
19 adequate health-care facilities are available to the public;
20 (d) collect and credit fees for licenses as free revenue;
21 (e) collect and credit fees for conducting plan reviews as dedicated credits;
22 (f) designate an executive secretary from within the department to assist the committee in
23 carrying out its powers and responsibilities; [and]
24 (g) establish reasonable standards for criminal background checks by public and private
25 entities;
26 (h) recognize those public and private entities which meet the standards established in
27 Subsection (1)(g); and
28 [(g)] (i) provide necessary administrative and staff support to the committee.
29 (2) The department may:
30 (a) exercise all incidental powers necessary to carry out the purposes of this chapter;
31 (b) review architectural plans and specifications of proposed health-care facilities or

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1 renovations of health-care facilities to ensure that the plans and specifications conform to rules
2 established by the committee; and
3 (c) make rules as necessary to implement the provisions of this chapter, except as authority
4 is specifically delegated to the committee.
5 Section 2. Section 26-21-9.5 is enacted to read:
6 26-21-9.5. Criminal background check and substantiated findings of abuse or neglect.
7 (1) In addition to the licensing requirements of Sections 26-21-8 and 26-21-9, a covered
8 health care facility, as defined in Subsection S [(8)] (9) s , at the time of initial application and
8a renewal for
9 licensure shall:
10 (a) submit the name and other identifying information of each person associated with the
11 facility who:
12 (i) provides direct care to a patient; and
13 (ii) has been the subject of a criminal background check within the preceding three-year
14 period by a public or private entity recognized by the department; and
15 (b) submit the name and other identifying information, which may include fingerprints,
16 of each person associated with the facility who:
17 (i) provides direct care to a patient; and
18 (ii) has not been the subject of a criminal background check in accordance with Subsection
19 (1)(a)(ii).
20 (2) (a) The department shall forward the information received under Subsection (1)(b) to
21 the Utah Division of Criminal Investigation of Department of Public Safety for processing to
22 determine whether an individual has been convicted of any crime.
23 (b) If an individual has not lived in Utah for five years, the individual shall submit
24 fingerprints for an FBI national criminal history record check. The fingerprints shall be submitted
25 to the FBI through the Utah Division of Criminal Investigation. The licensee is responsible for
26 the cost of the fingerprinting and national criminal history check.
27 (3) The department may determine whether S :
27a (a) s an individual whose name and other
28 identifying information has been submitted pursuant to Subsection (1) and who provides direct
29 care to children has a substantiated finding of child abuse or neglect by accessing S IN ACCORDANCE
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Amended on 3_February 17, 1998

Amend on 2_goldenrod February 17, 1998 29a WITH SUBSECTION (4) s the licensing part

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Amend on 2_goldenrod February 16, 1998 30 of the management information system created in Section 62A-4a-116 S [ . ] ; OR
30a (b) AN INDIVIDUAL WHOSE NAME AND OTHER IDENTIFYING INFORMATION HAS BEEN
30b SUBMITTED PURSUANT TO SUBSECTION (1) AND WHO PROVIDES DIRECT CARE TO DISABLED
30c OR ELDER ADULTS HAS A SUBSTANTIATED FINDING OF DISABLED OR ELDER ABUSE BY
30d ACCESSING IN ACCORDANCE WITH SUBSECTION (4) THE DATABASE CREATED IN SECTION 62A-
30e 311.1.
30f (4)(a) THE DEPARTMENT SHALL:
30g (i) DESIGNATE TWO PERSONS WITHIN THE DEPARTMENT TO ACCESS THE MANAGEMENT
30h INFORMATION SYSTEM AND THE DATABASE DESCRIBED IN SUBSECTION (3); AND
30i (ii) ADOPT MEASURES TO:
30j (A) PROTECT THE SECURITY OF THE MANAGEMENT INFORMATION SYSTEM AND THE
30k DATABASE; AND
30l (B) STRICTLY LIMIT ACCESS TO THE MANAGEMENT INFORMATION SYSTEM AND THE
30m DATABASE TO THOSE DESIGNATED UNDER SUBSECTION (4)(a)(i).
30n (b) THOSE DESIGNATED UNDER SUBSECTION (4)(a)(i) SHALL RECEIVE TRAINING FROM THE
30o DEPARTMENT OF HUMAN SERVICES WITH RESPECT TO:
30p (i) ACCESSING THE MANAGEMENT INFORMATION SYSTEM AND THE DATABASE;
30q (ii) MAINTAINING STRICT SECURITY; AND
30r (iii) THE CRIMINAL PROVISIONS IN SECTION 62A-4a-412 FOR THE IMPROPER RELEASE OF
30s INFORMATION.
30t (c) THOSE DESIGNATED UNDER SUBSECTION (4)(a)(i):
30u (i) ARE THE ONLY ONES IN THE DEPARTMENT WITH THE AUTHORITY TO ACCESS THE
30v MANAGEMENT INFORMATION SYSTEM AND DATABASE; AND
30w (ii) MAY ONLY ACCESS THE MANAGEMENT INFORMATION SYSTEM AND THE DATABASE
30x FOR THE PURPOSE OF LICENSING AND IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION
30y (3).
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Amend on 2_goldenrod February 16, 1998 31 [(4)] (5) s The department shall adopt rules defining the circumstances under which a
31a person who

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1 has been convicted of a criminal offense or has a substantiated report of child abuse or neglect S OR
1a DISABLED OR ELDER ABUSE OR NEGLECT s ,
2 may provide direct care to a patient in a covered health care facility, taking into account the nature
3 of the criminal offense and its relation to patient care.
4 S [(5)] (6) s The department may, in accordance with Section 26-1-6, assess reasonable fees
4a for a
5 criminal background check processed pursuant to this section.
6 S [(6)] (7) s The department may inform the covered health care facility of the criminal
6a conviction
7 or substantiated finding of child abuse or neglect of an individual associated with the facility.
8 S [(7)] (8) s A covered health care facility is not civilly liable for submitting information to
8a the
9 department as required by Subsection (1).
10 S [(8)] (9) s For purposes of this section, "covered health care facility" only includes:
11 (a) home health care agencies;
12 (b) hospices;
13 (c) nursing care facilities;
14 (d) residential health care facilities;
15 (e) assisted-living facilities;
16 (f) small health care facilities; and
17 (g) end stage renal disease facilities.
17a1 h Section 3. Section 58-62-102 is amended to read:
17a2 58-62-102. Definitions.
17a3 In addition to the definitions in Section 58-1-102, as used in this chapter:
17a4 (1) "Board" means the Health Care Assistant Registration Board created in Section 58-62-201.
17a5 (2) "Health care assistant" means an individual who:
17a6 (a) engages in the practice of a health care assistant; [and]
17a7 (b) is subject to registration under this chapter and is not subject to registration, licensure, or
17a8 certification under any other chapter of this title[.]; AND
17a9 (c) IS NOT SUBJECT TO A CRIMINAL BACKGROUND CHECK BY VIRTUE OF BEING EMPLOYED
17a10 BY:
17a11 (i) THE UTAH STATE HOSPITAL OR THE UTAH DEVELOPMENTAL CENTER;
17a12 (ii) A RESIDENTIAL TREATMENT OR RESIDENTIAL SUPPORT FACILITY AS DEFINED IN h

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17a13 h SUBSECTION (4)(b); OR
17a14 (iii) A COVERED HEALTH CARE FACILITY AS DEFINED IN SECTION 26-21-9.5.
17a15 (3) "Practice as a health care assistant" means providing direct personal assistance or care
17a16 for compensation to an individual who is ill, injured, infirm, developmentally or physically disabled,
17a17 mentally disabled, or mentally retarded, and who is in a private residence or regulated facility.
17a18 (4) "Regulated facility" means[: (a)] a health care facility subject to licensure under Title 26, Chapter
17a19 21, Health Care Facility Licensure and Inspection Act[; or] AND DOES NOT INCLUDE:
17a20 (a) THE UTAH STATE HOSPITAL OR THE UTAH STATE DEVELOPMENTAL CENTER;
17a21 (b) a residential treatment or residential support facility:
17a22 (i) subject to licensure under Title 62A, Chapter 2, Licensure of Programs and Facilities; and
17a23 (ii) serving people with disabilities, as defined by Department of Human Services rules[.]; OR
17a24 (c) A COVERED HEALTH CARE FACILITY AS DEFINED IN SECTION 26-21-9.5.
17a25 (5) "Unlawful conduct" is defined in Section 58-1-501.
17a26 (6) "Unprofessional conduct" is defined in Section 58-1-501. Section 4. Section 58-62-201 is
17a27 amended to read:
17a28 58-62-201. Board.
17a29 (1) There is created the Health Care Assistant Registration Board consisting of [11] SEVEN
17a30 individuals:
17a31 (a) one individual representing the Department of Health created in Title 26, Chapter 1, Department
17a32 of Health Organization;
17a33 [(b) one individual representing the Department of Human Services, created in Title 62A, Chapter
17a34 1, Department of Human Services;]
17a35 [(c)] (b) an individual serving in a management capacity in [each of the following facilities] A
17a36 GENERAL ACUTE HOSPITAL AS defined under Section 26-21-2 and licensed under Title 26, Chapter 21,
17a37 Health Care Facility Licensure and Inspection Act[:];
17a38 [(i) a nursing care facility;]
17a39 [(ii) a home health agency;]
17a40 [(iii) a residential health care facility; and]
17a41 [(iv) a general acute hospital;]
17a42 [(d)] (c) one licensed registered nurse employed in training of health care assistants;
17a43 [(e)] (d) one registered health care assistant; and
17a44 [(f)] (e) three members of the general public who have no financial interest in the ownership or
17a45 operation of a regulated facility. h

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17a46 h (2) The board shall be appointed and serve in accordance with Section 58-1-201.
17a47 (3) The duties and responsibilities of the board are in accordance with Sections 58-1-202 and
17a48 58-1-203. h
17a S Section h [ 3 ] 4 h . Section 62A-3-311.1 is amended to read:
17b 62A-3-311.1. Statewide data base -- Restricted use and access.
17c (1) The division shall maintain a data base for reports of disabled or elder adult abuse, neglect,
17d emotional or psychological abuse, or exploitation made pursuant to this part.
17e (2) The data base shall include:
17f (a) the names and identifying data of the abused, neglected, or exploited adult and the reported
17g abuser;
17h (b) information regarding whether or not the abuse, emotional or psychological abuse, neglect,
17i or exploitation was substantiated or unsubstantiated; and
17j (c) any other information that may be helpful in furthering the purposes of this part, as
17k determined by the division, subject to the restrictions of Subsection 62A-3-311(2).
17l (3) Information obtained from the data base may be used only for:
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Amended on 3_February 17, 1998

Amend on 2_goldenrod February 16, 1998 17m (a) compiling statistical summaries that do not include names or other identifying data;

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Amend on 2_goldenrod February 16, 1998 17n (b) granting or denying licenses or other grants of privilege by the department where
17o identification as a possible adult abuser may be relevant to the privilege in question, in
17p accordance with Subsection (4); h [ and ] h
17q (c) h [ [ ] investigation and action by the Division of Occupational and Professional Licensing
17r regarding registration of a health care assistant under Title 58, Chapter 62, Health Care Assistant
17s Registration Act [ ] ] ; AND
17s1 (d) h LICENSING PURPOSES BY THE BUREAU OF HEALTH FACILITY LICENSURE WITHIN
17t THE DEPARTMENT OF HEALTH, AS PROVIDED FOR IN SECTION 26-21-9.5, IN DETERMINING
17u WHETHER A PERSON ASSOCIATED WITH A COVERED HEALTH CARE FACILITY WHO PROVIDES
17v DIRECT CARE TO DISABLED OR ELDER ADULTS HAS A SUBSTANTIATED FINDING OF DISABLED OR
17w ELDER ABUSE.
17x (4) (a) A license or privilege may not be denied under Subsection (3) solely on the basis of
17y information in the data base.
17z (b) Before a license or privilege may be denied under Subsection (3), the department shall
17aa conduct a review and provide the person making application for the license or privilege with notice and
17ab an opportunity to be heard in accordance with Title 63, Chapter 46b, Administrative Procedures Act. s
18 Section S [3] h [ 4 ] 5 h s . Section 62A-4a-412 is amended to read:
19 62A-4a-412. Reports and information confidential.
20 (1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well
21 as any other information in the possession of the division obtained as the result of a report is
22 confidential and may only be made available to:
23 (a) a police or law enforcement agency investigating a report of known or suspected child
24 abuse or neglect;
25 (b) a physician who reasonably believes that a child may be the subject of abuse or
26 neglect;
27 (c) an agency that has responsibility or authority to care for, treat, or supervise a child who
28 is the subject of a report;
29 (d) any subject of the report, the natural parents of the minor, and the guardian ad litem;
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Amend on 2_goldenrod February 16, 1998 30 (e) a court, upon a finding that access to the records may be necessary for the
31 determination of an issue before it;

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1 (f) an office of the public prosecutor or its deputies; [and]
2 (g) the Bureau of Health Facility Licensure within the Department of Health, as provided
3 for in Section 26-21-9.5, for the sole purpose of determining whether a person associated with a
4 covered health care facility and who provides direct care to children has a substantiated finding
5 of child abuse or neglect; and
6 [(g)] (h) a person engaged in bona fide research, when approved by the director of the
7 division, if the information does not include names and addresses.
8 (2) The division and law enforcement officials shall ensure the anonymity of the person
9 or persons making the initial report and any others involved in its subsequent investigation.
10 (3) Any person who wilfully permits, or aides and abets the release of data or information
11 obtained as a result of this part, in the possession of the division or contained in the central
12 register, in violation of this part, is guilty of a class C misdemeanor.
13 (4) The physician-patient privilege is not a ground for excluding evidence regarding a
14 child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
15 good faith pursuant to this part.
16 h [ Section S [4] 5 s . Repealer.
17 This act repeals:
18 Section 58-62-101, Title.
19 Section 58-62-102, Definitions.
20 Section 58-62-201, Board.
21 Section 58-62-301, Registration -- Classifications -- Temporary employment prior to
22 registration.
23 Section 58-62-302, Registration qualifications.
24 Section 58-62-303, Term of registration -- Expiration -- Renewal.
25 Section 58-62-304, Exemptions from registration.
26 Section 58-62-305, Registrant title.
27 Section 58-62-401, Denial of registration -- Disciplinary proceedings.
28 Section 58-62-501, Unlawful conduct -- Penalty.
29 Section 58-62-601, Registry.
30 Section 58-62-602, Notice of dismissal -- Division action.
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Amend on 2_goldenrod February 16, 1998 31 Section 58-62-603, Immunity from liability for reporting. ] h

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1 Section 5. Effective date.
2 This act takes effect on July 1, 1998.
2a h Section 6. Coordination clause.
2b (1) IF THIS BILL AND H.B. 169, PUBLIC SAFETY AMENDMENTS, BOTH PASS, IT IS THE INTENT OF
2c THE LEGISLATURE THAT THE REFERENCES TO "UTAH DIVISION OF CRIMINAL INVESTIGATION" IN THIS
2d BILL SHALL BE DELETED AND "CRIMINAL INVESTIGATIONS AND TECHNICAL SERVICES DIVISION"
2e SHALL BE INSERTED.
2f (2) IF THIS BILL AND H.B. 224, HEALTH CARE REGISTRATION ACT, BOTH PASS, IT IS THE INTENT
2g OF THE LEGISLATURE THAT THE AMENDMENTS TO SECTION 58-62-102 AND SECTION 58-62-201 IN THIS
2h BILL SUPERCEDE THE AMENDMENTS TO THOSE SECTIONS IN H.B. 224. h

















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