Rule 59A-35.090, Florida Administrative Code, is undergoing rule development that will amend language on how fingerprint background screenings are processed and submitted to the Florida Department of Law Enforcement due to recently passed ...

 

AGENCY FOR HEALTH CARE ADMINISTRATION
Health Facility and Agency Licensing

RULE NO.: RULE TITLE:
59A-35.090: Background Screening; Prohibited Offenses.
PURPOSE AND EFFECT: Rule 59A-35.090, Florida Administrative Code, is undergoing rule development that will amend language on how fingerprint background screenings are processed and submitted to the Florida Department of Law Enforcement due to recently passed legislation. The amended rule language will also repeal all Level I background screening language as it is no longer required.
SUBJECT AREA TO BE ADDRESSED: Make changes to the way background screenings are processed and submitted to FDLE and the repeal of all Level I background screening language.
RULEMAKING AUTHORITY: 408.809 (8) FS.
LAW IMPLEMENTED: 408.809, 408.810 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: February 11, 2013, 10:00 a.m., EST,
PLACE: Agency for Healthcare Administration, 2727 Mahan Drive, Building #3, Conference Room B, Tallahassee, FL 32308
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Bob Reifinger, [phone], email: [e-mail]

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

59A-35.090 Background Screening.

(1) Definitions:

(a) “Arrest Report” means the detailed narrative written by the arresting law enforcement officer explaining the circumstances of the arrest.

(b) “Disposition” means the sentencing or other final settlement of a criminal case which shall include, regardless of adjudication, a plea of nolo contendere or guilty, or a conviction by a judge or jury.

(c) “Disqualifying Offense” means any criminal offense prohibited in Section 435.03, 435.04, or 408.809(5), F.S.

(d) “Exemption from Disqualification” means an exemption granted by the Agency following a review of the Application for Exemption, AHCA Form 3110 3010 -0019, August 2012 October 2009, hereby incorporated by reference, and an informal hearing, if appropriate, during which the individual must present clear and convincing evidence to support a reasonable belief that he or she has been rehabilitated and does not present a danger to the health, safety, and welfare of the patient or individual as described in Section 435.07, F.S.

(e) “FBI” means the Federal Bureau of Investigation.

(f) “FDLE” means the Florida Department of Law Enforcement.

(g) “Level 1 Screening” means an assessment of the criminal history record obtained from the FDLE to determine whether screened individuals have any disqualifying offenses pursuant to Section 435.03 or 408.809(5), F.S. An analysis and review of court dispositions and arrest reports may be required to make a final determination.

(g)(h) “Level 2 Screening” means an assessment of the criminal history record obtained through a fingerprint search through the FDLE and FBI to determine whether screened individuals have any disqualifying offenses pursuant to Section 435.04 or 408.809(5), F.S. An analysis and review of court dispositions and arrest reports may be required to make a final determination.

(h) “Livescan Service Provider” means an entity that scans fingerprints electronically and submits them to FDLE.

(2) Processing Screening Requests, Required Documents and Fees.

(a) A provider may conduct Level 1 background screening for employees either directly through the FDLE or through the Agency. Requests through the Agency must be submitted using the Agency’s background screening website at: ahca.myflorida.com/MCHQ/Long_Term_Care/Background_Screening/logon.shtml. A user code and password is required for use of this site. A request for a Level 1 screening through the Agency must be accompanied by the cost required by the FDLE to pay for the cost of processing the request.

(a) Providers subject to the screening standards outlined in Section 408.809, F.S. must follow the requirements specified in Section 435.12, F.S. Care Provider Background Screening Clearinghouse.

(b) Persons required to undergo Level 2 background screening must submit fingerprints electronically through a Livescan Service Provider(s) contracted through the Agency or approved through the Florida Department of Law Enforcement. an Applicant Fingerprint Card, incorporated herein by reference, and available from the appropriate Agency licensure unit or by submitting a request to: [e-mail]. A health care provider licensed pursuant to this chapter may submit a Level 2 request and make payment electronically or by mail. A request for a Level 2 screening through the Agency must be accompanied by the cost required by the FDLE and the FBI to pay for the cost of processing the request. Payment for screening services must be made to the Livescan Service Provider at the time of services or through a payment arrangement with the Livescan Service Provider.

1. Electronic submissions must be made through the Agency’s background screening web site. The completed fingerprint card must be mailed to the Background Screening Unit at 2727 Mahan Drive, MS 40,Tallahassee, Florida 32308.

2. Mailed requests must be submitted to the Background Screening Unit at 2727 Mahan Drive, MS 40, Tallahassee, Florida 32308.

(c)3. If the individual’s a fingerprints are card is rejected by the FBI due to illegible prints, the requesting provider will be notified through the Agency’s secure web site. The individual must return to the same Livescan Service Provider and submit a second set of fingerprints card in accordance with the guidelines established by the FBI. If the fingerprints are not resubmitted within 14 days, the individual will be notified by letter from the Agency. The second set of prints card must be submitted to the Agency within 21 days of the Agency’s request or the screening request will be considered withdrawn. If withdrawn, the individual must submit a new set of electronic fingerprints through a Livescan Service Provider card accompanied by the required fee.

(3) Screening of Administrators, Owners, Chief Financial Officers and Controlling Interests.

(a) Persons required to undergo Level 2 background screening in accordance with a licensure application, must submit the completed and signed fingerprint card and screening fee with an application for licensure to the appropriate Agency licensing unit.

(b) As an alternative to a new background screen persons required to undergo Level 2 background screening in accordance with Section 408.809, F.S., that have been screened within the previous 5 years by the Agency, Department of Health, Department of Children and Family Services, Agency for Persons with Disabilities or Department of Financial Services, or if the applicant has a certificate of authority to operate a continuing care retirement community, may submit to the appropriate Agency licensing unit:

1. A copy of the background screening result, and

(d)2. An Affidavit of Compliance with Background Screening Requirements, AHCA Form 3100-0008, August 2010 October 2009, herein incorporated by reference, and available from the Agency for Health Care Administration at: ahca.myflorida.com/Publications/Forms/HQA.shtml, must be submitted:

1. As part of the licensure application with a copy of screening results for administrators and chief financial officers that have been screened through the Care Provider Background Screening Clearinghouse, or screened within the previous 5 years by the Agency, Department of Health, Department of Children and Family Services, Agency for Persons with Disabilities, Department of Elder Affairs or Department of Financial Services, or if the applicant has a certificate of authority to operate a continuing care retirement community in accordance with the standards in Section 408.809(2), F.S.;

2. Upon hiring for an employee to attest that they meet the requirements for qualifying for employment, they have not been unemployed for more than 90 days from a position that requires Level 2 screening, and they agree to inform the employer immediately if arrested for any disqualifying offense.

(e) An administrator or chief financial officer must be screened and qualified prior to appointment to the position.

(3)(4) Results of Screening and Notification.

(a) Final results of background screening requests will be provided to the requesting provider through the Agency’s secure web site that may be accessed by all health care providers applying for or actively licensed through the Agency that are registered with the Care Provider Background Screening Clearinghouse. The secure website is located at: apps.ahca.myflorida.com/SingleSignOnPortal/Login.aspx?ReturnUrl=%2fSingleSignOnPortal%2f.

(b) When the dispositional information of a potentially disqualifying offense is unclear or not present in a criminal history from a Level I request, a notice will be sent to the requesting licensee or entity to obtain the arrest report and dispositional information from the individual being screened. The information must then be forwarded to the Agency for a final determination or show such information cannot be obtained. If a Level 2 criminal history is incomplete, a certified letter will be sent to the individual being screened requesting the arrest report and court dispositional information. If the letter is returned unclaimed, a copy of the letter will be sent by regular mail. For Level 1 and Level 2, Tthe missing information must be filed with the Agency within 30 days of the Agency’s request, or the individual is subject to automatic disqualification in accordance with Sections 435.05(1)(d), and 435.06(3), F.S.

(c) The eligibility results of employee screening and the signed Affidavit referenced in 59A-35.090(2), must be in the employee’s personnel file, maintained by the provider.

(c) When the Agency or the provider obtains information indicating an individual has a disqualifying offense pursuant to Chapter 435, F.S., the individual is prohibited from working in a position that requires background screening until such time as the individual has applied for and been determined to be exempt from such disqualification.

(d) An alleged offense is not disqualifying until such time as there has been a disposition.

(4)(5) Exemption from Disqualification.

(a) Requests for an exemption from disqualification shall be submitted in writing to the Agency using the “Application for Exemption from Disqualification” AHCA Form 3110 3010-0019, August 2012 October 2009. This form may be obtained from the Agency for Health Care Administration, Background Screening Unit, 2727 Mahan Drive, MS #40, Tallahassee, Florida 32308 or through the Agency’s website at: ahca.myflorida.com/background screening ahca.myflorida.com/MCHQ/Long_Term_Care/Background_Screening/exemption.shtml.

(b) Individuals that are licensed or certified in a profession under the jurisdiction of the Department of Health must apply for an exemption to the appropriate licensing or certifying board at the Department of Health unless the individual will be working in a position other than for which they are licensed or certified.

(c) The individual shall bear the burden of setting forth clear and convincing evidence of rehabilitation which includes any information indicating the individual presents no danger to the safety or well being of others. The individual must present such evidence as arrest reports, court dispositions, parole/probation information, and reference letters from employers and/or personal references. Other documents that may be included are records of successful participation in a rehabilitation program, further education or training, community or church involvement, special awards or recognition or testimony by self or others.

(d) An “Application for Exemption” will not be reviewed until all required documents are obtained. If the application is deemed incomplete after 30 days of receipt by the Agency, the application will be closed. withdrawn.

(e) In deciding whether to grant or deny an exemption request, the Agency shall consider factors such as the facts and circumstances surrounding the disqualifying offense(s), the nature of the harm to the victim, whether the individual is on probation or parole, whether restitution has been made, other offenses on the criminal history record and the length of time since the last offense, the history of the person since the disqualifying offense(s), work experience, personal references, performance evaluations, probation or parole violations, education, other evidence of rehabilitation, and the honesty and candor of the disqualified individual.

(f) Any exemption granted by the Agency is limited to the information provided at the time of application and the disqualifying offense or offenses committed prior to the date of the request for exemption.

(g) The Agency shall void any exemption granted to an individual when there is evidence that information which would adversely affect the decision was not made available at the time of the determination or there is an arrest or disposition of a new disqualifying offense since the date the exemption was granted.

(5)(6) Unless otherwise specified, information requested pursuant to this section must be filed with the Agency within 21 days of the Agency’s request.

Rulemaking Authority 408.819 FS. Law Implemented 408.809, 408.810, FS. History– New_________.