(1) The definitions in Section 26B-2-238 apply to this section.
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Terms Used In Utah Code 26B-2-240

  • Arrest: Taking physical custody of a person by lawful authority.
  • Conviction: A judgement of guilt against a criminal defendant.
  • Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
  • Resident: means a person 21 years old or older who:
         (19)(a) as a result of physical or mental limitations or age requires or requests services provided in an assisted living facility; and
         (19)(b) does not require intensive medical or nursing services as provided in a hospital or nursing care facility. See Utah Code 26B-2-201
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
  • United States: includes each state, district, and territory of the United States of America. See Utah Code 68-3-12.5
(2)

     (2)(a) As provided in this section, the department may grant, deny, or revoke certification for direct patient access for an individual, including a covered individual.
     (2)(b) The department may limit the circumstances under which a covered individual granted certification for direct patient access may have direct patient access, based on the relationship factors under Subsection (4) and other mitigating factors related to patient and resident protection.
     (2)(c) The department shall determine whether to grant certification for direct patient access for each applicant for whom it receives:

          (2)(c)(i) the personal identification information specified by the department under Subsection (4)(b); and
          (2)(c)(ii) any fees established by the department under Subsection (9).
     (2)(d) The department shall:

          (2)(d)(i) establish a procedure for obtaining and evaluating relevant information concerning covered individuals, including fingerprinting the applicant and submitting the prints to the Criminal Investigations and Technical Services Division of the Department of Public Safety for checking against applicable state, regional, and national criminal records files; and
          (2)(d)(ii) require that a certification for direct patient access include a fingerprint-based criminal history background check in the databases described under Subsection (3)(a), including the inclusion of the individual’s fingerprints in a rap back system.
(3) The department may review the following sources to determine whether an individual should be granted or retain certification for direct patient access, which may include:

     (3)(a) Department of Public Safety arrest, conviction, and disposition records described in Title 53, Chapter 10, Criminal Investigations and Technical Services Act, including information in state, regional, and national records files;
     (3)(b) juvenile court arrest, adjudication, and disposition records, as allowed under Section 78A-6-209;
     (3)(c) federal criminal background databases available to the state;
     (3)(d) the Division of Child and Family Services Licensing Information System described in Section 80-2-1002;
     (3)(e) child abuse or neglect findings described in Section 80-3-404;
     (3)(f) the Division of Aging and Adult Services vulnerable adult abuse, neglect, or exploitation database described in Section 26B-6-210;
     (3)(g) registries of nurse aids described in 42 C.F.R. § 483.156;
     (3)(h) licensing and certification records of individuals licensed or certified by the Division of Professional Licensing under Title 58, Occupations and Professions; and
     (3)(i) the List of Excluded Individuals and Entities database maintained by the United States Department of Health and Human Services’ Office of Inspector General.
(4) The department shall adopt rules that:

     (4)(a) specify the criteria the department will use to determine whether an individual is granted or retains certification for direct patient access:

          (4)(a)(i) based on an initial evaluation and ongoing review of information under Subsection (3); and
          (4)(a)(ii) including consideration of the relationship the following may have to patient and resident protection:

               (4)(a)(ii)(A) warrants for arrest;
               (4)(a)(ii)(B) arrests;
               (4)(a)(ii)(C) convictions, including pleas in abeyance;
               (4)(a)(ii)(D) pending diversion agreements;
               (4)(a)(ii)(E) adjudications by a juvenile court under Section 80-6-701 if the individual is over 28 years old and has been convicted, has pleaded no contest, or is subject to a plea in abeyance or diversion agreement for a felony or misdemeanor, or the individual is under 28 years old; and
               (4)(a)(ii)(F) any other findings under Subsection (3); and
     (4)(b) specify the personal identification information that must be submitted by an individual or covered body with an application for certification for direct patient access, including:

          (4)(b)(i) the applicant’s Social Security number; and
          (4)(b)(ii) fingerprints.
(5) For purposes of Subsection (4)(a), the department shall classify a crime committed in another state according to the closest matching crime under Utah law, regardless of how the crime is classified in the state where the crime was committed.
(6) The Department of Public Safety, the Administrative Office of the Courts, the Division of Professional Licensing, and any other state agency or political subdivision of the state:

     (6)(a) shall allow the department to review the information the department may review under Subsection (3); and
     (6)(b) except for the Department of Public Safety, may not charge the department for access to the information.
(7) The department shall adopt measures to protect the security of the information it reviews under Subsection (3) and strictly limit access to the information to department employees responsible for processing an application for certification for direct patient access.
(8) The department may disclose personal identification information specified under Subsection (4)(b) to other divisions and offices within the department to verify that the subject of the information is not identified as a perpetrator or offender in the information sources described in Subsections (3)(d) through (f).
(9) The department may establish fees, in accordance with Section 63J-1-504, for an application for certification for direct patient access, which may include:

     (9)(a) the cost of obtaining and reviewing information under Subsection (3);
     (9)(b) a portion of the cost of creating and maintaining the Direct Access Clearance System database under Section 26B-2-241; and
     (9)(c) other department costs related to the processing of the application and the ongoing review of information pursuant to Subsection (4)(a) to determine whether certification for direct patient access should be retained.
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