S.B. 64 Enrolled

BACKGROUND CHECK OF HEALTH
CARE PROFESSIONALS
1998 GENERAL SESSION
STATE OF UTAH
Sponsor: Michael G. Waddoups
AN ACT RELATING TO HEALTH; REQUIRING A CRIMINAL BACKGROUND CHECK OF
A PERSON ASSOCIATED WITH A HEALTH CARE FACILITY WHO PROVIDES
DIRECT CARE TO PATIENTS; PERMITTING ACCESS TO THE CHILD ABUSE
DATABASE OR ELDER ABUSE DATABASE WITH RESPECT TO A PERSON
ASSOCIATED WITH A HEALTH CARE FACILITY THAT PROVIDES DIRECT CARE TO
CHILDREN OR ELDER ADULTS; REQUIRING THE DEPARTMENT OF HEALTH
ESTABLISH RULES REGARDING PERMISSIBLE WORK ACTIVITIES FOR THOSE
WITH A CRIMINAL CONVICTION OR SUBSTANTIATED FINDING OF CHILD OR
ELDER ABUSE OR NEGLECT; EXTENDING IMMUNITY TO THE SUBMISSION OF
INFORMATION TO THE DEPARTMENT; AMENDING THE HEALTH CARE
ASSISTANT REGISTRATION ACT; PROVIDING AN EFFECTIVE DATE; AND
PROVIDING A COORDINATION CLAUSE.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
26-21-6, as last amended by Chapter 209, Laws of Utah 1997
58-62-102, as enacted by Chapter 289, Laws of Utah 1994
58-62-201, as enacted by Chapter 289, Laws of Utah 1994
62A-3-311.1, as last amended by Chapter 130, Laws of Utah 1996
62A-4a-412, as renumbered and amended by Chapter 260, Laws of Utah 1994
ENACTS:
26-21-9.5, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 26-21-6 is amended to read:
26-21-6. Duties of department.

(1) The department shall:
(a) enforce rules established pursuant to this chapter;
(b) authorize an agent of the department to conduct inspections of health-care facilities
pursuant to this chapter;
(c) collect information authorized by the committee that may be necessary to ensure that
adequate health-care facilities are available to the public;
(d) collect and credit fees for licenses as free revenue;
(e) collect and credit fees for conducting plan reviews as dedicated credits;
(f) designate an executive secretary from within the department to assist the committee in
carrying out its powers and responsibilities; [and]
(g) establish reasonable standards for criminal background checks by public and private
entities;
(h) recognize those public and private entities which meet the standards established in
Subsection (1)(g); and
[(g)] (i) provide necessary administrative and staff support to the committee.
(2) The department may:
(a) exercise all incidental powers necessary to carry out the purposes of this chapter;
(b) review architectural plans and specifications of proposed health-care facilities or
renovations of health-care facilities to ensure that the plans and specifications conform to rules
established by the committee; and
(c) make rules as necessary to implement the provisions of this chapter, except as authority
is specifically delegated to the committee.
Section 2. Section 26-21-9.5 is enacted to read:
26-21-9.5. Criminal background check and substantiated findings of abuse or neglect.
(1) In addition to the licensing requirements of Sections 26-21-8 and 26-21-9 , a covered
health care facility, as defined in Subsection (9), at the time of initial application and renewal for
licensure shall:
(a) submit the name and other identifying information of each person associated with the

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facility who:
(i) provides direct care to a patient; and
(ii) has been the subject of a criminal background check within the preceding three-year
period by a public or private entity recognized by the department; and
(b) submit the name and other identifying information, which may include fingerprints, of
each person associated with the facility who:
(i) provides direct care to a patient; and
(ii) has not been the subject of a criminal background check in accordance with Subsection
(1)(a)(ii).
(2) (a) The department shall forward the information received under Subsection (1)(b) to the
Utah Division of Criminal Investigation of the Department of Public Safety for processing to
determine whether an individual has been convicted of any crime.
(b) If an individual has not lived in Utah for five years, the individual shall submit
fingerprints for an FBI national criminal history record check. The fingerprints shall be submitted
to the FBI through the Utah Division of Criminal Investigation. The licensee is responsible for the
cost of the fingerprinting and national criminal history check.
(3) The department may determine whether:
(a) an individual whose name and other identifying information has been submitted pursuant
to Subsection (1) and who provides direct care to children has a substantiated finding of child abuse
or neglect by accessing in accordance with Subsection (4) the licensing part of the management
information system created in Section 62A-4a-116 ; or
(b) an individual whose name and other identifying information has been submitted pursuant
to Subsection (1) and who provides direct care to disabled or elder adults has a substantiated finding
of disabled or elder abuse by accessing in accordance with Subsection (4) the database created in
Section 62A-3-311.1 .
(4) (a) The department shall:
(i) designate two persons within the department to access the management information
system and the database described in Subsection (3); and

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(ii) adopt measures to:
(A) protect the security of the management information system and the database; and
(B) strictly limit access to the management information system and the database to those
designated under Subsection (4)(a)(i).
(b) Those designated under Subsection (4)(a)(i) shall receive training from the Department
of Human Services with respect to:
(i) accessing the management information system and the database;
(ii) maintaining strict security; and
(iii) the criminal provisions in Section 62A-4a-412 for the improper release of information.
(c) Those designated under Subsection (4)(a)(i):
(i) are the only ones in the department with the authority to access the management
information system and database; and
(ii) may only access the management information system and the database for the purpose
of licensing and in accordance with the provisions of Subsection (3).
(5) The department shall adopt rules defining the circumstances under which a person who
has been convicted of a criminal offense or has a substantiated report of child abuse or neglect or
disabled or elder abuse or neglect, may provide direct care to a patient in a covered health care
facility, taking into account the nature of the criminal offense and its relation to patient care.
(6) The department may, in accordance with Section 26-1-6 , assess reasonable fees for a
criminal background check processed pursuant to this section.
(7) The department may inform the covered health care facility of the criminal conviction
or substantiated finding of child abuse or neglect of an individual associated with the facility.
(8) A covered health care facility is not civilly liable for submitting information to the
department as required by Subsection (1).
(9) For purposes of this section, "covered health care facility" only includes:
(a) home health care agencies;
(b) hospices;
(c) nursing care facilities;

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(d) residential health care facilities;
(e) assisted-living facilities;
(f) small health care facilities; and
(g) end stage renal disease facilities.
Section 3. Section 58-62-102 is amended to read:
58-62-102. Definitions.
In addition to the definitions in Section 58-1-102 , as used in this chapter:
(1) "Board" means the Health Care Assistant Registration Board created in Section
58-62-201 .
(2) "Health care assistant" means an individual who:
(a) engages in the practice of a health care assistant; [and]
(b) is subject to registration under this chapter and is not subject to registration, licensure,
or certification under any other chapter of this title[.]; and
(c) is not subject to a criminal background check by virtue of being employed by:
(i) the Utah State Hospital or the Utah Developmental Center;
(ii) a residential treatment or residential support facility as defined in Subsection (4)(b); or
(iii) a covered health care facility as defined in Section 26-21-9.5.
(3) "Practice as a health care assistant" means providing direct personal assistance or care
for compensation to an individual who is ill, injured, infirm, developmentally or physically disabled,
mentally disabled, or mentally retarded, and who is in a private residence or regulated facility.
(4) "Regulated facility" means[: (a)] a health care facility subject to licensure under Title 26,
Chapter 21, Health Care Facility Licensure and Inspection Act[; or] and does not include:
(a) the Utah State Hospital or the Utah State Developmental Center;
(b) a residential treatment or residential support facility:
(i) subject to licensure under Title 62A, Chapter 2, Licensure of Programs and Facilities; and
(ii) serving people with disabilities, as defined by Department of Human Services rules[.];
or
(c) a covered health care facility as defined in Section 26-21-9.5 .

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(5) "Unlawful conduct" is defined in Section 58-1-501 .
(6) "Unprofessional conduct" is defined in Section 58-1-501 .
Section 4. Section 58-62-201 is amended to read:
58-62-201. Board.
(1) There is created the Health Care Assistant Registration Board consisting of [11] seven
individuals:
(a) one individual representing the Department of Health created in Title 26, Chapter 1,
Department of Health Organization;
[(b) one individual representing the Department of Human Services, created in Title 62A,
Chapter 1, Department of Human Services;]
[(c)] (b) an individual serving in a management capacity in [each of the following facilities]
a general acute hospital as defined under Section 26-21-2 and licensed under Title 26, Chapter 21,
Health Care Facility Licensure and Inspection Act[:];
[(i) a nursing care facility;]
[(ii) a home health agency;]
[(iii) a residential health care facility; and]
[(iv) a general acute hospital;]
[(d)] (c) one licensed registered nurse employed in training of health care assistants;
[(e)] (d) one registered health care assistant; and
[(f)] (e) three members of the general public who have no financial interest in the ownership
or operation of a regulated facility.
(2) The board shall be appointed and serve in accordance with Section 58-1-201 .
(3) The duties and responsibilities of the board are in accordance with Sections 58-1-202 and
58-1-203 .
Section 5. Section 62A-3-311.1 is amended to read:
62A-3-311.1. Statewide data base -- Restricted use and access.
(1) The division shall maintain a data base for reports of disabled or elder adult abuse,
neglect, emotional or psychological abuse, or exploitation made pursuant to this part.

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(2) The data base shall include:
(a) the names and identifying data of the abused, neglected, or exploited adult and the
reported abuser;
(b) information regarding whether or not the abuse, emotional or psychological abuse,
neglect, or exploitation was substantiated or unsubstantiated; and
(c) any other information that may be helpful in furthering the purposes of this part, as
determined by the division, subject to the restrictions of Subsection 62A-3-311 (2).
(3) Information obtained from the data base may be used only for:
(a) compiling statistical summaries that do not include names or other identifying data;
(b) granting or denying licenses or other grants of privilege by the department where
identification as a possible adult abuser may be relevant to the privilege in question, in accordance
with Subsection (4); [and]
(c) investigation and action by the Division of Occupational and Professional Licensing
regarding registration of a health care assistant under Title 58, Chapter 62, Health Care Assistant
Registration Act[.]; and
(d) licensing purposes by the Bureau of Health Facility Licensure within the Department of
Health, as provided for in Section 26-21-9.5 , in determining whether a person associated with a
covered health care facility who provides direct care to disabled or elder adults has a substantiated
finding of disabled or elder abuse.
(4) (a) A license or privilege may not be denied under Subsection (3) solely on the basis of
information in the data base.
(b) Before a license or privilege may be denied under Subsection (3), the department shall
conduct a review and provide the person making application for the license or privilege with notice
and an opportunity to be heard in accordance with Title 63, Chapter 46b, Administrative Procedures
Act.
Section 6. Section 62A-4a-412 is amended to read:
62A-4a-412. Reports and information confidential.
(1) Except as otherwise provided in this chapter, reports made pursuant to this part, as well

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as any other information in the possession of the division obtained as the result of a report is
confidential and may only be made available to:
(a) a police or law enforcement agency investigating a report of known or suspected child
abuse or neglect;
(b) a physician who reasonably believes that a child may be the subject of abuse or neglect;
(c) an agency that has responsibility or authority to care for, treat, or supervise a child who
is the subject of a report;
(d) any subject of the report, the natural parents of the minor, and the guardian ad litem;
(e) a court, upon a finding that access to the records may be necessary for the determination
of an issue before it;
(f) an office of the public prosecutor or its deputies; [and]
(g) the Bureau of Health Facility Licensure within the Department of Health, as provided
for in Section 26-21-9.5 , for the sole purpose of determining whether a person associated with a
covered health care facility and who provides direct care to children has a substantiated finding of
child abuse or neglect; and
[(g)] (h) a person engaged in bona fide research, when approved by the director of the
division, if the information does not include names and addresses.
(2) The division and law enforcement officials shall ensure the anonymity of the person or
persons making the initial report and any others involved in its subsequent investigation.
(3) Any person who wilfully permits, or aides and abets the release of data or information
obtained as a result of this part, in the possession of the division or contained in the central register,
in violation of this part, is guilty of a class C misdemeanor.
(4) The physician-patient privilege is not a ground for excluding evidence regarding a child's
injuries or the cause of those injuries, in any proceeding resulting from a report made in good faith
pursuant to this part.
Section 7. Effective date.
This act takes effect on July 1, 1998.
Section 8. Coordination clause.

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(1) If this bill and H.B. 169, Public Safety Amendments, both pass, it is the intent of the
Legislature that the references to "Utah Division of Criminal Investigation" in this bill shall be
deleted and "Criminal Investigations and Technical Services Division" shall be inserted.
(2) If this bill and H.B. 224, Health Care Registration Act, both pass, it is the intent of the
Legislature that the amendments to Section 58-62-102 and Section 58-62-201 in this bill supercede
the amendments to those sections in H.B. 224.

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