S.B. 153

1

ASSISTED LIVING FACILITIES
2 1998 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Mike Dmitrich
5 AN ACT RELATING TO HEALTH; CREATING A SINGLE CATEGORY OF
6 RESIDENTIAL-ASSISTED LIVING FACILITIES; DEFINING TERMS; REQUIRING
7 CRIMINAL BACKGROUND CHECKS FOR DIRECT CARE EMPLOYEES; REMOVING
8 LICENSING REQUIREMENTS UNDER THE DIVISION OF OCCUPATIONS AND
9 PROFESSIONAL LICENSING; MAKING TECHNICAL AND CONFORMING
10 AMENDMENTS; AND PROVIDING AN EFFECTIVE DATE.
11 This act affects sections of Utah Code Annotated 1953 as follows:
12 AMENDS:
13 26-20-10, as enacted by Chapter 126, Laws of Utah 1981
14 26-21-2, as last amended by Chapter 209, Laws of Utah 1997
15 26-21-6, as last amended by Chapter 209, Laws of Utah 1997
16 53-7-204, as renumbered and amended by Chapters 101 and 234, Laws of Utah 1993
17 58-62-102, as enacted by Chapter 289, Laws of Utah 1994
18 58-62-201, as enacted by Chapter 289, Laws of Utah 1994
19 62A-3-202, as last amended by Chapter 209, Laws of Utah 1997
20 ENACTS:
21 26-21-9.5, Utah Code Annotated 1953
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 26-20-10 is amended to read:
24 26-20-10. Revocation of license of residential-assisted living facility -- Appointment
25 of receiver.
26 (1) If the license of a [residential health care] residential-assisted living facility is revoked
27 for violation of this chapter, the county attorney may file a petition with the district court for the

1 county in which the facility is located for the appointment of a receiver.
2 (2) The district court shall issue an order to show cause why a receiver should not be
3 appointed returnable within five days after the filing of the petition.
4 (3) If the court finds that the facts warrant the granting of the petition, the court shall
5 appoint a receiver to take charge of the facility. The court may determine fair compensation for
6 the receiver.
7 (4) A receiver appointed pursuant to this section shall have the powers and duties
8 prescribed by the court.
9 Section 2. Section 26-21-2 is amended to read:
10 26-21-2. Definitions.
11 As used in this chapter:
12 (1) "Abortion clinic" means a facility, other than a general acute or specialty hospital, that
13 performs abortions and provides abortion services during the second trimester of pregnancy.
14 (2) "Activities of daily living" means essential activities including:
15 (a) dressing;
16 (b) eating;
17 (c) grooming;
18 (d) bathing;
19 (e) toileting;
20 (f) ambulation;
21 (g) transferring; and
22 (h) self-administration of medication.
23 (3) "Ambulatory surgical facility" means a freestanding facility, which provides surgical
24 services to patients not requiring hospitalization.
25 (4) "Assistance with activities of daily living" means providing of or arranging for the
26 provision of assistance with activities of daily living.
27 [(5) "Assisted living facility" means a residential facility with a home-like setting that
28 provides an array of coordinated supportive personal and health care services, available 24 hours
29 per day, to residents who have been assessed under division rule to need any of these services.
30 Each resident shall have a service plan based on the assessment, which may include:]
31 [(a) specified services of intermittent nursing care;]

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1 [(b) administration of medication; and]
2 [(c) support services promoting residents' independence and self sufficiency.]
3 [(6)] (5) "Birthing center" means a freestanding facility, receiving maternal clients and
4 providing care during pregnancy, delivery, and immediately after delivery.
5 [(7)] (6) "Committee" means the Health Facility Committee created in Section 26-1-7.
6 [(8)] (7) "Consumer" means any person not primarily engaged in the provision of health
7 care to individuals or in the administration of facilities or institutions in which such care is
8 provided and who does not hold a fiduciary position, or have a fiduciary interest in any entity
9 involved in the provision of health care, and does not receive, either directly or through his spouse,
10 more than 1/10 of his gross income from any entity or activity relating to health care.
11 [(9)] (8) "End stage renal disease facility" means a facility which furnishes staff-assisted
12 kidney dialysis services, self-dialysis services, or home-dialysis services on an outpatient basis.
13 [(10)] (9) "Freestanding" means existing independently or physically separated from
14 another health care facility by fire walls and doors and administrated by separate staff with
15 separate records.
16 [(11)] (10) "General acute hospital" means a facility which provides diagnostic,
17 therapeutic, and rehabilitative services to both inpatients and outpatients by or under the
18 supervision of physicians.
19 [(12)] (11) "Governmental unit" means the state, or any county, municipality, or other
20 political subdivision or any department, division, board, or agency of the state, a county,
21 municipality, or other political subdivision.
22 [(13)] (12) (a) "Health care facility" means general acute hospitals, specialty hospitals,
23 home health agencies, hospices, nursing care facilities, residential-assisted living facilities, birthing
24 centers, ambulatory surgical facilities, small health care facilities, abortion clinics, facilities owned
25 or operated by health maintenance organizations, end stage renal disease facilities, and any other
26 health care facility which the committee designates by rule.
27 (b) "Health care facility" does not include the offices of private physicians or dentists,
28 whether for individual or group practice.
29 [(14)] (13) "Health maintenance organization" means an organization, organized under the
30 laws of any state which:
31 (a) is a qualified health maintenance organization under Section 1310 (d) of the Public

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1 Health Service Act; or
2 (b) (i) provides or otherwise makes available to enrolled participants at least the following
3 basic health care services: usual physician services, hospitalization, laboratory, x-ray, emergency,
4 and preventive services and out-of-area coverage;
5 (ii) is compensated, except for copayments, for the provision of the basic health services
6 listed in Subsection [(14)](13)(b)(i) to enrolled participants by a payment which is paid on a
7 periodic basis without regard to the date the health services are provided and which is fixed
8 without regard to the frequency, extent, or kind of health services actually provided; and
9 (iii) provides physicians' services primarily directly through physicians who are either
10 employees or partners of such organizations, or through arrangements with individual physicians
11 or one or more groups of physicians organized on a group practice or individual practice basis.
12 [(15)] (14) (a) "Home health agency" means an agency, organization, or facility or a
13 subdivision of an agency, organization, or facility which employs two or more direct care staff
14 persons who provide licensed nursing services, therapeutic services of physical therapy, speech
15 therapy, occupational therapy, medical social services, or home health aide services on a visiting
16 basis.
17 (b) "Home health agency" does not mean an individual who provides services under the
18 authority of a private license.
19 [(16)] (15) "Hospice" means a program of care for the terminally ill and their families
20 which occurs in a home or in a health care facility and which provides medical, palliative,
21 psychological, spiritual, and supportive care and treatment.
22 [(17)] (16) "Nursing care facility" means a health care facility, other than a general acute
23 or specialty hospital, constructed, licensed, and operated to provide patient living accommodations,
24 24-hour staff availability, and at least two of the following patient services:
25 (a) a selection of patient care services, under the direction and supervision of a registered
26 nurse, ranging from continuous medical, skilled nursing, psychological, or other professional
27 therapies to intermittent health-related or paraprofessional personal care services;
28 (b) a structured, supportive social living environment based on a professionally designed
29 and supervised treatment plan, oriented to the individual's habilitation or rehabilitation needs; or
30 (c) a supervised living environment that provides support, training, or assistance with
31 individual activities of daily living.

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1 [(18)] (17) "Person" means any individual, firm, partnership, corporation, company,
2 association, or joint stock association, and the legal successor thereof.
3 [(19)] (18) "Resident" means a person 21 years of age or older who:
4 (a) as a result of physical or mental limitations or age requires or requests services
5 provided in a [residential health care] residential-assisted living facility [or assisted living facility];
6 and
7 (b) does not require intensive medical or nursing services as provided in a hospital or
8 nursing care facility.
9 [(20) "Residential health care facility" means a facility providing assistance with activities
10 of daily living and social care to two or more residents who require protected living arrangements.]
11 (19) "Residential-assisted living facility" means a home or facility of any size:
12 (a) operated as a family, congregate, or apartment style facility;
13 (b) having two or more residents 21 years of age or older who are not related to the facility
14 owner or administrator;
15 (c) providing a social setting and not a medical institutional setting;
16 (d) where meals, housing, and assistance with activities of daily living, or supportive care,
17 or both, are provided by the owners or operators of the facility;
18 (e) operated either for profit or not for profit; and
19 (f) as may be further defined by rule.
20 [(21)] (20) "Small health care facility" means a four to sixteen bed facility that provides
21 licensed health care programs and services to residents who generally do not need continuous
22 nursing care or supervision.
23 [(22)] (21) "Specialty hospital" means a facility which provides specialized diagnostic,
24 therapeutic, or rehabilitative services in the recognized specialty or specialties for which the
25 hospital is licensed.
26 [(23)] (22) "Substantial compliance" means in a department survey of a licensee, the
27 department determines there is an absence of deficiencies which would harm the physical health,
28 mental health, safety, or welfare of patients or residents of a licensee.
29 (23) "Supportive care" means providing or arranging for the provision of any one or more
30 of the following for a person:
31 (a) supervision and protective oversight;

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1 (b) structured social and recreational activities;
2 (c) provision of or arrangement for health services; or
3 (d) assistance with activities of daily living.
4 Section 3. Section 26-21-6 is amended to read:
5 26-21-6. Duties of department.
6 (1) The department shall:
7 (a) enforce rules established pursuant to this chapter;
8 (b) authorize an agent of the department to conduct inspections of health-care facilities
9 pursuant to this chapter;
10 (c) collect information authorized by the committee that may be necessary to ensure that
11 adequate health-care facilities are available to the public;
12 (d) collect and credit fees for licenses as free revenue;
13 (e) collect and credit fees for conducting plan reviews as dedicated credits;
14 (f) designate an executive secretary from within the department to assist the committee in
15 carrying out its powers and responsibilities; [and]
16 (g) establish reasonable standards for criminal background checks by public and private
17 entities;
18 (h) recognize those public and private entities which meet the standards established in
19 Subsection (1)(f); and
20 [(g)] (i) provide necessary administrative and staff support to the committee.
21 (2) The department may:
22 (a) exercise all incidental powers necessary to carry out the purposes of this chapter;
23 (b) review architectural plans and specifications of proposed health-care facilities or
24 renovations of health-care facilities to ensure that the plans and specifications conform to rules
25 established by the committee; and
26 (c) make rules as necessary to implement the provisions of this chapter, except as authority
27 is specifically delegated to the committee.
28 Section 4. Section 26-21-9.5 is enacted to read:
29 26-21-9.5. Additional licensing requirements for residential-assisted living facilities.
30 (1) In addition to the licensing requirements of Sections 26-21-8 and 26-21-9, a
31 residential-assisted living facility at the time of initial application and renewal for licensure shall:

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1 (a) submit the name of each employee who:
2 (i) provides direct care to a patient; and
3 (ii) has been the subject of a criminal background check since July 1, 1998, by a public
4 or private entity recognized by the department; and
5 (b) submit the name and other identifying information, which may include fingerprints,
6 of each employee who:
7 (i) provides direct care to a patient; and
8 (ii) has not been the subject of a criminal background check in accordance with Subsection
9 (1)(a).
10 (2) (a) The department shall forward the information received under Subsection (1)(b) to
11 the Law Enforcement and Technical Services Division of the Department of Public Safety for
12 processing to determine whether the employee has been convicted of any crime.
13 (b) If the employee has not resided in Utah for the last two consecutive years, or if there
14 is a justifiable reason to believe that the employee may have a criminal record in another state, the
15 department may:
16 (i) require the employee to submit fingerprints; and
17 (ii) instruct the Utah Bureau of Criminal Identification to forward the employee's
18 fingerprints for an FBI national criminal history record check.
19 (3) (a) The department shall record the name of each person who has been:
20 (i) employed by a residential-assisted living facility; and
21 (ii) the subject of a criminal background check since July 1, 1998.
22 (b) The department may disclose the name of a person recorded in accordance with
23 Subsection (3)(a) at the request of a residential-assisted living facility:
24 (i) to screen a potential employee; or
25 (ii) for purposes of complying with Subsection (1).
26 (4) The commission shall adopt rules defining the circumstances under which a person
27 who has been convicted of a criminal offense may provide direct care to a patient, taking into
28 account the nature of the criminal offense and its relation to patient care.
29 (5) The department may, in accordance with Section 26-1-6, assess reasonable fees for:
30 (a) a criminal background check processed pursuant to Subsection (2); and
31 (b) providing the name of a person recorded in accordance with Subsection (3)(a).

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1 (6) A residential-assisted living facility may not be civilly liable for submitting
2 information to the department as required by Subsection (1).
3 Section 5. Section 53-7-204 is amended to read:
4 53-7-204. Duties of Utah Fire Prevention Board -- Local administrative duties.
5 (1) The board shall:
6 (a) make rules:
7 (i) adopting the specific edition of the Uniform Fire Code to be used as the standard;
8 (ii) establishing minimum standards for the prevention of fire and for the protection of life
9 and property against fire and panic in any:
10 (A) publicly owned building, including all public and private schools, colleges, and
11 university buildings;
12 (B) building or structure used or intended for use as an asylum, a mental hospital, a
13 hospital, a sanitarium, a home for the aged, a [residential health care] residential-assisted living
14 facility, a children's home or institution, or any similar institutional type occupancy of any
15 capacity; and
16 (C) place of assemblage where 50 or more persons may gather together in a building,
17 structure, tent, or room for the purpose of amusement, entertainment, instruction, or education;
18 (iii) establishing safety and other requirements for placement and discharge of display
19 fireworks based upon:
20 (A) the specific edition of the Uniform Fire Code selected under Subsection (1)(a)(i); and
21 (B) relevant publications of the National Fire Protection Association;
22 (iv) establishing minimum safety standards for retail storage, handling, and sale of class
23 C common state approved explosives;
24 (v) defining methods to establish proof of competence to place and discharge display
25 fireworks;
26 (vi) for deputizing qualified persons to act as deputy fire marshals, and to secure special
27 services in emergencies;
28 (vii) implementing Sections 53-7-106 and 53-7-205;
29 (viii) setting guidelines for use of funding; and
30 (ix) establishing criteria for training and safety equipment grants for fire departments
31 enrolled in firefighter certification;

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1 (b) recommend to the commissioner a state fire marshal;
2 (c) develop policies under which the state fire marshal and his authorized representatives
3 will perform;
4 (d) provide for the employment of field assistants and other salaried personnel as required;
5 (e) prescribe the duties of the state fire marshal and his authorized representatives;
6 (f) establish a statewide fire prevention, fire education, and fire service training program
7 in cooperation with the Board of Regents;
8 (g) establish a statewide fire statistics program for the purpose of gathering fire data from
9 all political subdivisions of the state;
10 (h) establish a fire academy in accordance with Section 53-7-204.2;
11 (i) coordinate the efforts of all people engaged in fire suppression in the state;
12 (j) work aggressively with the local political subdivisions to reduce fire losses; and
13 (k) regulate the sale and servicing of portable fire extinguishers and automatic fire
14 suppression systems in the interest of safeguarding lives and property.
15 (2) The board may incorporate in its rules by reference, in whole or in part, nationally
16 recognized and readily available standards and codes pertaining to the protection of life and
17 property from fire, explosion, or panic.
18 (3) (a) The board may only make amendments to the Uniform Fire Code adopted under
19 Subsection (1)(a)(i) in accordance with Section 53-7-205.
20 (b) The amendments may be applicable to the entire state or within a city, county, or fire
21 protection district.
22 (4) The following functions shall be administered locally by a city, county, or fire
23 protection district:
24 (a) issuing permits, including open burning permits pursuant to Sections 11-7-1 and
25 19-2-114;
26 (b) creating a local board of appeals in accordance with Section 2.303 of the Uniform Fire
27 Code; and
28 (c) establishing, modifying, or deleting fire flow and water supply requirements.
29 Section 6. Section 58-62-102 is amended to read:
30 58-62-102. Definitions.
31 In addition to the definitions in Section 58-1-102, as used in this chapter:

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1 (1) "Board" means the Health Care Assistant Registration Board created in Section
2 58-62-201.
3 (2) "Health care assistant" means an individual who:
4 (a) engages in the practice of a health care assistant; and
5 (b) is subject to registration under this chapter and is not subject to registration, licensure,
6 or certification under any other chapter of this title.
7 (3) "Practice as a health care assistant" means providing direct personal assistance or care
8 for compensation to an individual who is ill, injured, infirm, developmentally or physically
9 disabled, mentally disabled, or mentally retarded, and who is in a private residence or regulated
10 facility.
11 (4) "Regulated facility" means:
12 (a) a health care facility subject to licensure under Title 26, Chapter 21, Health Care
13 Facility Licensure and Inspection Act, excluding a residential-assisted living facility defined in
14 Section 26-21-2; or
15 (b) a residential treatment or residential support facility:
16 (i) subject to licensure under Title 62A, Chapter 2, Licensure of Programs and Facilities;
17 and
18 (ii) serving people with disabilities, as defined by Department of Human Services rules.
19 (5) "Unlawful conduct" is defined in Section 58-1-501.
20 (6) "Unprofessional conduct" is defined in Section 58-1-501.
21 Section 7. Section 58-62-201 is amended to read:
22 58-62-201. Board.
23 (1) There is created the Health Care Assistant Registration Board consisting of [11] ten
24 individuals:
25 (a) one individual representing the Department of Health created in Title 26, Chapter 1,
26 Department of Health Organization;
27 (b) one individual representing the Department of Human Services, created in Title 62A,
28 Chapter 1, Department of Human Services;
29 (c) an individual serving in a management capacity in each of the following facilities
30 defined under Section 26-21-2 and licensed under Title 26, Chapter 21, Health Care Facility
31 Licensure and Inspection Act:

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1 (i) a nursing care facility;
2 (ii) a home health agency; and
3 [(iii) a residential health care facility; and]
4 (iv) a general acute hospital;
5 (d) one licensed registered nurse employed in training of health care assistants;
6 (e) one registered health care assistant; and
7 (f) three members of the general public who have no financial interest in the ownership
8 or operation of a regulated facility.
9 (2) The board shall be appointed and serve in accordance with Section 58-1-201.
10 (3) The duties and responsibilities of the board are in accordance with Sections 58-1-202
11 and 58-1-203.
12 Section 8. Section 62A-3-202 is amended to read:
13 62A-3-202. Definitions.
14 As used in this part:
15 (1) "Elderly resident" means an adult 60 years of age or older who because of physical,
16 economic, social, or emotional problems cannot function normally on an independent basis, and
17 who resides in a long-term care facility.
18 (2) "Government agency" means any department, division, office, bureau, board,
19 commission, authority, or any other agency or instrumentality created by the state, or to which the
20 state is a party, or created by any county or municipality, which is responsible for the regulation,
21 visitation, inspection, or supervision of facilities, or which provides services to patients, residents,
22 or clients of facilities.
23 (3) "Long-term care facility" means any skilled nursing facility, intermediate care facility,
24 nursing home, [residential health care facility, assisted living] residential-assisted living facility,
25 adult foster care home, or any living arrangement in the community through which room and
26 personal care services are provided for elderly residents.
27 (4) "Ombudsman" means the administrator of the long-term care ombudsman program,
28 created pursuant to Section 62A-3-203.
29 Section 9. Effective date.
30 This act takes effect on July 1, 1998.


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Legislative Review Note
as of 1-29-98 11:47 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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