The purpose of this rule chapter is to establish criteria and procedures in order to comply with the requirements of Section 430.0402, F.S., regarding 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 of this rule chapter is to establish criteria and procedures in order to comply with the requirements of Section 430.0402, F.S., regarding a Level 2 background screening for direct service providers.
SUBJECT AREA TO BE ADDRESSED: 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.
SPECIFIC AUTHORITY: 430.08, 435.01(2) FS.
LAW IMPLEMENTED: 430.0402 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: September 14, 2010, 10:00 a.m. – 5:00 p.m. EST in Tallahassee; and September 16, 2010, 10:00 a.m. – 5:00 p.m. EST in Orlando
PLACE: September 14, 2010 workshop will be conducted at the Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, Florida 32399-7000;
September 16, 2010 workshop will be conducted at the Department of Children and Families, Hurston Building, 400 W. Robinson Street, Conference Rooms C and D, First Floor South Tower, Orlando, Florida 32801
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 DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, 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 PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT 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 chapter:

(1) “Agency” means the Agency for Health Care Administration.

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

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

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

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

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

(7) “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. The purpose is to determine whether screened individuals have any disqualifying offenses pursuant to Section 430.0402 or 435.04, F.S.

(8) “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.

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

 

58-2.003 Background Screening Requirements.

Pursuant to Section 430.0402(1)(a), F.S., a 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 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. Prior to employment or volunteerism, all new direct service providers must undergo a Level 2 background screening pursuant to Chapter 435, F.S., as a condition of 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 or 435.04, F.S., or a similar law of another jurisdiction.

(2) CURRENTLY EMPLOYED DIRECT SERVICE PROVIDERS.

(a) Employers of direct service providers, who have not been previously screened according to the screening standards of Chapter 435, F.S., must ensure that at least twenty percent (20%) of the available population of such individuals are screened pursuant to the Level 2 screening standards of Chapter 435, F.S., within 120 calendar days of August 1, 2010; and an additional twenty percent (20%) every 90 calendar days thereafter, until all direct service providers have successfully satisfied the screening standards of Chapter 435, F.S., or have applied for and received an exemption pursuant to Section 435.07, F.S.

(b) Employers having fewer than 5 direct service providers, who have not been previously screened according to the screening standards of Chapter 435, F.S., must ensure that all such direct service providers undergo a Level 2 background screening within the initial 120 calendar day window after August 1, 2010.

(3) EMPLOYER COORDINATION WITH DOEA. Employers of direct service providers are responsible for coordinating with the Department to ensure applicant fingerprint retention 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 954.05, F.S., in the event of a direct service provider’s subsequent arrest.

(4) RESCREENING REQUIREMENTS. Employers of direct service providers who previously qualified for employment or volunteer work under Level 1 screening standards and individuals required to be screened according to the Level 2 screening standards contained in Chapter 435, F.S., pursuant to Section 430.0402, F.S., shall be required to be rescreened every 5 years from the date of their last background screening or exemption, unless such individual’s fingerprints are continuously retained and monitored by FDLE in the Applicant Fingerprint Retention and Notification Program, according to the procedures specified in Section 943.05, F.S., as indicated in subsection (3) of this rule.

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

 

58-2.007 Exceptions.

The following are exceptions to the background screening requirements specified in this rule:

(1) DEPARTMENT OF HEALTH: Licensed 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.

(2) AGENCY FOR HEALTH CARE ADMINISTRATION: Individuals qualified for employment by the Agency pursuant to the Agency’s background screening standards for licensure or employment contained in Section 408.809, F.S., are not subject to subsequent or additional Level 2 background screening pursuant to Chapter 435, F.S., or the unique screening requirements of Section 430.0402, F.S., by virtue of their employment as a direct service provider, 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.

Beginning August 1, 2010, fingerprints submitted pursuant to Chapter 435, F.S., must be submitted electronically to FDLE, pursuant to Rule 58-2.005, F.A.C., unless a hardship exists. The hardship must prevent an individual’s fingerprints from being submitted electronically, such as “flat prints.” “Flat prints” occur when an individual’s ridges on the skin have been worn so that an electronic fingerprint is ineffective. In such instances, ink-based fingerprints are sufficient to satisfy the provisions of this rule until July 1, 2012, when all must be submitted electronically pursuant to Section 435.04, F.S., with no exceptions

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

 

58-2.011 Background Screeners.

One of the entities listed in the subsections below may be utilized for Level 2 background screening as long as the entity verifies in writing to the employer that all background screeners have been subject to, and passed, a Level 1 background screening under the standards set forth in Chapter 435, F.S.

(1) Any screening company listed on the FDLE website as authorized to perform Level 2 LiveScan background screenings.

(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 FS. History–New_________.

 

58-2.013 Sharing of Screening Results.

The information that a particular 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, the use of a Level 2 background screening by a subsequent program or provider shall not affect the applicable date for rescreening pursuant to Rule 58-2.005, F.A.C., if any. No information other than the fact that the applicant passed a Level 2 screening may be shared.

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