Rule 59A-35.090, Florida Administrative Code is undergoing rule development that will amend language to reflect statutory changes made in Chapter 2014-84, Laws of Florida. The amended rule language updates URL addresses, forms, and statutory ...

 

AGENCY FOR HEALTH CARE ADMINISTRATION

Health Facility and Agency Licensing

RULE NO.:RULE TITLE:

59A-35.090Background Screening; Prohibited Offenses

PURPOSE AND EFFECT: Rule 59A-35.090, F.A.C. is undergoing rule development that will amend language to reflect statutory changes made in Chapter 2014-84, Laws of Florida. The amended rule language updates URL addresses, forms, and statutory references.

SUMMARY: Make changes that are technical in nature as a result of the passage of Chapter 2014-84, Laws of Florida.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: A SERC has not been prepared by the agency. For rules listed where no SERC was prepared, the Agency prepared a checklist for each rule to determine the necessity for a SERC.

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.

RULEMAKING AUTHORITY: 408.809, 408.819 FS.

LAW IMPLEMENTED: 408.809, 408.810 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: March 3, 2015, 2:00 p.m. ‒ 3:00 p.m., EST

PLACE: Agency for Health Care Administration, Ft. Knox Bldg. 3, Conference Room C, 2727 Mahan Drive, Tallahassee, FL 32308

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 7 days before the workshop/meeting by contacting: Zachary Masters, Background Screening Unit, 2727 Mahan Drive, Tallahassee, Florida, [phone]. 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: Zachary Masters, [phone], email: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE 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 435.04 or 408.809(4)(5), F.S.

(d) “Exemption from Disqualification” means an exemption granted by the Agency following a review of the Application for Exemption, AHCA Form 3110-0019,           2014 September 2013, hereby incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX, and an informal teleconference 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 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(4)(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) 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 and must register and initiate all criminal history checks through the Care Provider Background Screening Clearinghouse before referring an employee or potential employee for electronic fingerprint submission to the Department of Law Enforcement. Providers can access the Care Provider Background Screening Clearinghouse at: http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/index.shtml apps.ahca.myflorida.com/SingleSignOnPortal.

(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. 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.

(c) If the individual’s fingerprints are 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 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 must be submitted 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 accompanied by the required fee.

(d) An Attestation Affidavit of Compliance with Background Screening Requirements,
AHCA Form 3100-0008, _______ 2014 September 2013, herein incorporated by reference,
available at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX, and available
from the Agency for Health Care Administration at: http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/Regulations_Forms.shtml http://www.ahca.myflorida.com/Publications/Forms/HQA.shtml, must be submitted:

1. At the time of 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 created under Section 435.12, F.S., or screened within the previous 5 years by the Agency, Department of Health, Department of Elder Affairs, the Agency for Persons with Disabilities, Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority to operate a continuing care retirement community under Chapter 651, F.S., and in accordance with the standards in Section 408.809(2), F.S. Screening conducted by another state agency may satisfy this requirement as authorized in Section 408.809(2).;

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) Results of Screening and Notification.

(a) Final results of background screening requests will be provided 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.

(b) 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 disposition information. If the letter is returned unclaimed, a copy of the letter will be sent by regular mail. Pursuant to Section 435.05(1)(d), F.S., the missing information must be filed with the Agency within 30 days of the Agency’s request or the individual is subject to disqualification in accordance with Section 435.06(3), F.S.

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

(4) 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 3110-0019,           2014 September 2013 incorporated by reference, available at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX. 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: http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/Regulations_Forms.shtml ahca.myflorida.com/backgroundscreening.

(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.

(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) 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 408.809, 408.819 FS. Law Implemented 408.809, 408.810, 435.07 FS. History–New 7-14-10, Amended 12-16-13,                      .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Zachary Masters

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Elizabeth Dudek

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 10, 2014

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: September 25, 2014