Utah Admin. Code 432-35-9

Current through Bulletin No. 2024-21, November 1, 2024

Section R432-35-9 - Exclusion from Direct Patient Access

(1) The department shall review convictions or pending charges as follows:

(a) pursuant to Section 26B-2-240, any individual or covered individual who has been convicted, has pleaded no contest, or is subject to a plea in abeyance or diversion agreement, within the past 10 years, for any offense listed in this section, may not have direct patient access:

(i) any felony or class A misdemeanor under the following:

(A) Subsection 76-6-106(2)(b)(i)(A) Criminal Mischief -Human Life;

(B) Title 76, Chapter 4, Enticement of a Minor;

(C) Title 76, Chapter 5, Offenses Against the Person;

(D) Title 76, Chapter 5b, Sexual Exploitation Act;

(E) Sections 76-3-203.9 through 203.10, Violent Offenses Committed in Presence of a Child;

(F) Section 76-9-301.8, Bestiality;

(G) Sections 76-9-702 through 702.1 Lewdness -Sexual Battery;

(H) Sections 76-9-702.5 and 76-9-702.7 Lewdness Involving Child and Voyeurism offenses;

(I) Sections 76-10-1201 through 76-10-1228, Pornographic and Harmful Materials and Performances;

(J) Sections 76-10-1301 through 1314, Prostitution;

(K) Title 78B, Chapter 7, Protective Order and Stalking Injunctions; or

(L) Section 26B-6-205, Failure to Report Suspected Abuse, Neglect, or Exploitation of a Vulnerable Adult;

(b) except as listed in Subsection R432-35-9(1)(a), if an individual or covered individual has been convicted, has pleaded no contest, or is subject to a plea in abeyance or diversion agreement, for the following offenses, the department may consider granting certification for direct patient access:

(i) any felony or class A misdemeanor;

(ii) any felony, class A or B misdemeanor under Subsection 76-6-106(2)(b)(i)(A), Criminal Mischief - Human Life;

(iii) any felony or class A, B or C misdemeanor under the following:

(A) Title 76, Chapter 4, Enticement of a Minor;

(B) Title 76 Chapter 5, Offenses Against the Person;

(C) Title 76, Chapter 5b, Sexual Exploitation Act;

(D) Sections 76-3-203.9 through 203.10, Violent Offenses Committed in Presence of a Child;

(E) Section 76-9-301.8, Bestiality;

(F) Section 76-9-702 through 702.1 Lewdness - Sexual Battery;

(G) Section 76-9-702.5 and 76-9-702.7 Lewdness Involving Child - Voyeurism offenses;

(H) Section 76-10-1201 through 76-10-1228, Pornographic and Harmful Materials and Performances;

(I) Section 76-10-1301 through 1314, Prostitution;

(J) Title 78B, Chapter 7, Protective Order and Stalking Injunctions; and

(K) Section 26B-6-205, Failure to Report Suspected Abuse, Neglect, or Exploitation of a Vulnerable Adult;

(c) any individual or covered individual who has a warrant for arrest or an arrest for any of the identified offenses in Subsection R432-35-8(1)(a) or (b), may deny direct patient access based on:

(i) the type of offense;

(ii) the severity of offense; and

(iii) potential risk to patients or residents.

(2) The department shall review juvenile records as follows:

(a) as required by Subsection 26B-2-240(a)(ii)(E), juvenile court records shall be reviewed if an individual or covered individual is:

(i) under the age of 28; or

(ii) over the age of 28 and has convictions or pending charges identified in Subsection R432-35-8(1)(a) or (b);

(b) adjudication by a juvenile court shall exclude the individual from direct patient access if the adjudication refers to an act that, if committed by an adult, would be a felony or a misdemeanor as identified in Subsection R432-35-9(1)(a); and

(c) adjudication by a juvenile court may exclude the individual from direct patient access, if the adjudication refers to an act that if committed as an adult, would be a felony or misdemeanor as identified in Subsection R432-35-9(1)(b).

(3) The department may review non-criminal findings from the following sources to determine whether an individual or covered individual should be granted or retain certification for direct patient access:

(a) Division of Child and Family Services Licensing Information System described in Section 80-2-1002;

(b) child abuse or neglect findings described in Section 80-3-404;

(c) Division of Aging and Adult Services vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210;

(d) registries of nurse aids described in 42 CFR 483.156;

(e) licensing and certification records of individuals licensed or certified by the Division of Professional Licensing under Title 58, Occupations and Professions; and

(f) the (LEIE) database maintained by the United States Department of Health and Human Services' Office of Inspector General.

(4) The department may review relevant background information from sources listed in Section R432-35-8 to determine under what circumstance, if any, the covered individual may be granted or retain certification for direct patient access and the following factors may be considered:

(a) types and number of offenses or findings;

(b) passage of time since the offense or finding;

(c) surrounding circumstances of the offense or finding;

(d) intervening circumstances regarding the offense or finding; and

(e) steps taken to correct or improve.

(5) The department shall rely on relevant information from sources identified in Section R432-35-8 as conclusive evidence and may deny direct patient access based on that information.

(6) A denied application may be re-submitted to the department no sooner than 2 years from the date of separation or upon substantial change to the covered individual's circumstances.

Utah Admin. Code R432-35-9

Amended by Utah State Bulletin Number 2020-04, effective 3/1/2020

Amended by Utah State Bulletin Number 2020-05, effective 3/1/2020

Amended by Utah State Bulletin Number 2023-17, effective 8/22/2023