The purpose and effect of the proposed rule chapter are to establish criteria and procedures in order to comply with the requirements of Section 430.0402, F.S., which mandates a Level 2 background screening for direct service providers.

DEPARTMENT OF ELDER AFFAIRS

Rule No.: RULE TITLE
58-2.001: Definitions.
58-2.003: Background Screening Requirements
58-2.005: Implementation and Retention.
58-2.007: Exceptions.
58-2.009: Electronic Submission of Fingerprints.
58-2.011: Background Screeners.
58-2.013: Sharing of Screening Results.
PURPOSE AND EFFECT: The purpose and effect of the proposed rule chapter are to establish criteria and procedures in order to comply with the requirements of Section 430.0402, F.S., which mandates a Level 2 background screening for direct service providers.
SUMMARY: This rule chapter establishes criteria and procedures for complying with the new requirement of a Level 2 background screening for all employees or volunteers, who have direct contact with recipients receiving services under jurisdiction of the Department.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The proposed rules will have an impact on small business as defined in Section 288.703, F.S. Pursuant to Sections 120.54(3)(b)1.b. and 120.541(2)(a), F.S., the department’s statement of estimated regulatory costs is provided. The regulatory cost is determined to be in excess of $200,000 in the aggregate within one year after implementation of this rule chapter (Section 120.54(3)(b)1.b., F.S.), and is determined to be approximately $3,106,620 in aggregate within five years after the implementation of this rule chapter (Section 120.541(2)(a)), F.S.
The proposed rules will not have an impact on small cities or counties as defined in Section 120.52, F.S. Therefore, a statement of estimated regulatory costs has not been prepared in regards to small cities or counties.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 430.08, 435.01(2) FS.
LAW IMPLEMENTED: 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: Tuesday, January 11, 2011, 9:30 a.m. – 11:30 a.m., EST
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, FL 32317
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 72 hours before the workshop/meeting by contacting: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; Telephone number: [phone]; Email address: [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; Telephone number: [phone]; Email address: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

58-2.001 Definitions.

In addition to the term “direct service provider,” as defined in Section 430.0402(1)(b), F.S., the following definitions are included in this rule:

(1) “Disqualifying Offense” means any criminal offense prohibited in Section 430.0402 or 435.04, F.S.

(2) “DOEA” or “Department” means the Florida Department of Elder Affairs.

(3) “DOH” means the Florida Department of Health.

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

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

(6) “Level 1 Screening” means an assessment of employment history checks, statewide criminal correspondence checks, local criminal history checks and a check of the Dru Sjodin National Sex Offender Public Website coordinated through FDLE to determine whether screened individuals have any disqualifying offenses pursuant to Section 430.0402 or 435.04, F.S.

(7) “Level 2 Screening” means an assessment of the criminal history record obtained through a fingerprint search coordinated through FDLE and the FBI to determine whether screened individuals have any disqualifying offenses pursuant to Section 430.0402 or 435.04, F.S.

(8) “Livescan” means both the technique and the technology used by law enforcement agencies and private facilities to capture fingerprints and palm prints electronically, without the need for the more traditional method of ink and paper.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

 

58-2.003 Background Screening Requirements.

Pursuant to Section 430.0402(1)(a), F.S., Level 2 background screening consistent with the requirements of Chapter 435, F.S., is required for all direct service providers as defined in Section 430.0402(1)(b), F.S.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

 

58-2.005 Implementation and Retention.

Pursuant to Section 430.0402, F.S., beginning August 1, 2010, the following is required:

(1) NEW DIRECT SERVICE PROVIDERS: All newly-hired direct service providers shall be required to undergo a Level 2 background screening pursuant to Chapter 435 prior to employment or volunteerism and continued employment or volunteerism. Such screening shall ensure that a direct service provider has not been arrested awaiting final disposition of, has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or has been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under Section 430.0402, 435.03 or 435.04, F.S., or a similar law of another jurisdiction.

(2) CURRENTLY EMPLOYED DIRECT SERVICE PROVIDERS: Employers of direct service providers, who have not been previously screened according to the screening standards of Chapter 435, F.S., must be screened pursuant to the Level 2 screening standards of Chapter 435, F.S., and successfully satisfy the screening standards of Section 430.0402, F.S. and Chapter 435, F.S., or have applied for and received an exemption pursuant to Section 435.07, F.S.

(3) EMPLOYER COORDINATION WITH FDLE: Employers of direct service providers are responsible for ensuring applicant fingerprints are retained by FDLE in the Applicant Fingerprint Retention and Notification Program, whereby notification is automatically sent to the Department’s Background Screening Coordinator, according to the procedures specified in Section 943.05, F.S., in the event of a direct service provider’s subsequent arrest.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

 

58-2.007 Exceptions.

Pursuant to Section 430.0402, F.S., physicians, nurses, or other professionals licensed by DOH are not subject to the background screening requirements of Chapter 435, F.S., if they are providing a service that is within the scope of their licensed practice.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402 FS. History–New_________.

 

58-2.009 Electronic Submission of Fingerprints.

Pursuant to Chapter 435, F.S., effective August 1, 2010, fingerprints must be submitted electronically to FDLE and retained by that entity pursuant to subsection (3) of Rule 58-2.005, F.A.C.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

 

58-2.111 Background Screeners.

The following entities may be utilized to conduct a Level 2 background screening:

(1) Any screening company listed on the FDLE website as authorized to perform Level 2 LiveScan background screenings. The website address is: http://www.fdle.state.fl.us/Content/getdoc/04833e12-3fc6-4c03-9993-379244e0da50/livescan.aspx.

(2) Any local law enforcement capable of performing Level 2 Livescan background screenings, provided the equipment and electronic fingerprint data submission have been evaluated by FDLE to verify compliance with both FDLE and FBI regulations and standards.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

 

58-2.113 Sharing of Screening Results.

The information that a direct service provider has successfully passed a Level 2 background screening may be shared among DOEA programs and providers. In addition, passage of a Level 2 background screening for one program or provider shall constitute passage for all programs and providers. However, no information other than the fact that the applicant passed Level 2 screening may be shared.

Rulemaking Authority 430.08, 435.01(2) FS. Law Implemented 430.0402, 435.01, 435.02, 435.03, 435.04, 435.06, 435.07 FS. History–New_________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Jim Crochet
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charles T. Corley, Interim Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 6, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 20, 2010